Autocourt Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 372 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN AUTOCOURT LIMITED of Dunedin Appellant (Appeal No. DCA 196/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 2nd day of November 1999 APPEARANCES/COUNSEL I S Alsweiler, advocate for appellant M B Mccarthy for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON This appeal arises out of a decision of the Review Officer issued on 9 February 1998 in which she held that the decision of the respondent to grant cover to the appellant's former employee, Flanagan, was wrong. Flanagan had been employed by the appellant as a Car Mechanic/Groomer and lodged an application with the respondent claiming to have suffered a back injury in March 1997 in the course of his employment with the appellant. 2 In its employer questionnaire, the appellant noted that Flanagan had worked for 40 hours from 10 February 1997 until 24 April 1997 when he ceased work for the appellant. His tasks involved grooming cars in the showroom for four hours per day and for another four hours per day he was delivering messages and doing courier work. The appellant stated that Flanagan suffered from a previous back injury which had recurred and that Flanagan had indicated that he was unsure as to whether it was a recurrence due to work or non-work related activities. The appellant stated that it was aware that Flanagan had suffered from the condition before he began work with it. After the respondent had approved payment for an MRI scan it became evident that Flanagan's lumbar disc prolapse could not be attributable to his work with the appellant. After the appellant filed its appeal, Flanagan was notified of the proposed date of hearing but has failed to respond to any correspondence. The appellant adduced in evidence an affidavit from Dr M H Anderson, a Specialist in Occupational Medicine. His opinion was that Flanagan suffered a degenerative disc disease not arising out of and in the course of his employment with the appellant. Mr Alsweiler submitted that all the evidence indicated that Flanagan suffered a pre- existing condition which was not caused by his work with the appellant. In his submission, Mr Mccarthy stated that the respondent considered that its original decision was correct and that the decision of the Review Officer was wrong. I agree with that submission. The appeal is therefore allowed and the decision of the Review Officer is revoked. There will be costs to the appellant of $700. DATED at WELLINGTON this |7 day of December 1999 burmadubar A W Middleton District Court Judge dca196-98.doc (nr)