Watson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 45 /45 AT WELLINGTON DCA No. 1921 :13 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 46 /93/0156 Section 91 of the Act BETWEEN BARRY WATSON of Auckland APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 29 March 1995 Date of Decision: 9 may 1995 Counsel: Appellant in person Ms P. Zumbach for respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue-is whether the appellant has suffered personal injury within the meaning of s.7 of the Act for deafness. 2. On 5 February 1993 the appellant lodged a claim for industrial deafness arising out of excessive noise. There was no specific date given for the injury. The claim form recorded the appellant first sought treatment from Dr Barker for the condition on 5 February 1993, and Dr Barker referred him to Mr Glennie. A claim form signed by Dr Barker indicated that the appellant was not then in paid employment. The appellant advised the respondent on 17 February 1993 that the name of the employer where the injury was said to have occurred was "Auckland Suburban Carriers". He advised the Corporation that he had left that employment eighteen months ago. He then completed a gradual process questionnaire on 2 March 1993. He described the nature of the work which he considered caused his deafness as "heavy vehicles in confined space - driving heavy vehicles". He stated he worked for Auckland Suburban Carriers from 1986 to 1990. In completing the gradual process questionnaire, he answered the question "When did your deafness first develop" he said "two years". He also stated he had had no hearing difficulties in the past. The Corporation sent an employer questionnaire to Auckland Suburban Carriers, The Strand, Parnell. Although the company had been wound up and was no longer operating, the form was returned undated but apparently" around March 1993. The questionnaire contained the question "How long has the claimant been employed by your company"? The response was "Only employed for short period. Ceased employment approx five years ago". The questionnaire indicated the employer had no knowledge of the injury and that it had never been reported. The questionnaire was not signed. 3. Mr H. Glennie, Ear Nose and Throat Surgeon, provided a loss of hearing report: first examination dated 5 February 1993 to the Corporation in which he said:- "This 51 year old unemployed transport manager has not worked since October of last year. He has worked 15 years in a trucking business. He considers the noise levels are very loud in this work. He has been a manager of this firm and working in enclosed situations with the noise of trucks and other heavy machinery. He has wondered about hearing loss over the past 3-4 years, particularly in the right ear. He has difficulty hearing conversations and often has to ask people to repeat themselves. This causes a problem particularly in the home situation. He has high pitched tinnitus. He served in the Royal New Zealand Navy between 1956 and 1978 as a nurse. Apart from times when there was firing practice with heavy guns on vessels on which he served, he does not consider he was exposed to excessive noise. In 1982 he was in a motor vehicle accident and sustained superficial head injuries ... after coming out of the Navy in 1978 he worked for five years as a telephone operator before he went into the trucking business." Percentage Binaural Loss (NAL Scale) was 55.9%. Mr Glennie summarised his clinical findings as 'moderately severe sensori - neural hearing loss'. He recommended that the appellant would benefit from hearing aid fitting. On 30 March 1993, Dr Percival, District Medical Adviser for the Corporation, Auckland North District office, noted on the appellant's file:- "This man has moderately severe hearing loss but his history on claimant questionnaire does not account for the loss and the employer of that period denies exposure to excess noise. ( 4. the information in file I recommend that decline through lack of information. Can you contact claimant - (1) Need more info about noisy employments. 2) Need more info about non-work noisy exposure. (3) Need stat dec about his noise exposure being industrial and not recreational activities." On 27 April 1993 the appellant completed a statutory declaration as follows:- "I have worked for following: Auckland Hospital 1965 - 1975 Auckland Suburban Carriers 1975 - 1982 Foodtown Ltd 1982 - 1991 night shift. Not involved in any recreational sport." The Corporation referred appellant's claim to Dr Kelvin Bremner, Legislation Interpretation Section, Medical Adviser, Wellington. Dr Bremner was of the view that the audiogram could represent noise induced hearing loss, but in his view the inconsistencies and inaccuracies in the appellant's account of noise exposure meant he was unable to support the claim on the evidence supplied. In a subsequent memorandum, Dr Percival noted that there was no evidence of excessive noise in the statutory declaration of employment, and that the presbycusis was the appellant's major problem. 5. When a client officer of the Corporation spoke to the appellant on 27 May 1993, the appellant supplied the following work history:- "Foodtown Sunnynook 1986 to March 1989 night work stocking shelves etc. Auckland Hospital 1981-1986 telephonist. RNZN - 1956-1978 nurse." When the appellant was interviewed by the Corporation on 31 May 1993 he gave his work history as follows:- "RNZ 1956-1978 nurse Auckland Public Hospital telephonist 1979-1981 Foodtown Sunnynook - shelf stacker nights 1981-1985 Auckland Suburban Carriers 1986-1991 transport manager." The respondent's file note of the same date records "IP considers only the last position as being noise induced with fourteen trucks coming and going in a very confined area." The appellant's work history was referred to Dr Bremner again for comment. In a memorandum dated 14 June 1993, Dr Bremner stated:- "I cannot accept that anyone in his position as transport manager could suffer the extent of NHL he displays in the period of five 6. years. If OSH (Occupational Safety and Health) confirm the extent of noise exposure we could reconsider." As a result, the respondent wrote to the appellant on 16 July 1993 advising him that his claim was unacceptable under s. 8(2)(b) of the Act, as it did not meet the criteria for personal injury which was caused by gradual process, disease or infection arising out of or in the course of employment. The appellant was further advised that the claim may be reconsidered if Occupational Safety and Health could confirm the extent of noise exposure at Auckland Suburban Carriers. In his application for review of the respondent's decision to decline his claim, the appellant:- "The business in which I worked for seven years (Auckland Suburban Carriers) had loud noise levels which I consider have affected hearing. The building has been demolished." At the Review Officer's hearing on 29 October 1993, evidence was given by both the appellant and Mr Glennie. At the review hearing the appellant told the Review Officer he was mainly supervising at Auckland Suburban Carriers from February 1986 to the end of October 1990. When asked about the unsigned employer's questionnaire, the appellant said that it had been completed by the son of the managing director not the managing director himself, and for the reason was not worth much. The appellant then described the building that the Auckland Suburban Carriers used to operate from as having a 30 foot wide open 7. frontage and it a depth of 60 feet. The vehicles would back right inside the building in the load area and unload on to raised platform inside the building. The building is now demolished. Mr Glennie was of the view that the claim had been declined because of lack of information, and that heavy trucks in a confined area was damaging after 120 minutes exposure a day at 90dBA levels. Mr Watson described the noise as continuous with trucks in and out all the time. He never wore protectors and protectors were never issued. Mr Glennie was of the opinion that there would have been no loss of any significance if Mr Watson had not worked there. He had no family history and no early history of loss in his life and no outside reasons. The appellant had been 51 when Mr Glennie made his report, and there was to be no deduction in the NAL tables at 51 for aging. In his decision, the Review Officer was satisfied that noise was not present to any material extent in the non-employment activities of the appellant. He was, however, concerned about the inconsistencies in the evidence that the appellant gave. In particular, the Review Officer found that the appellant had been inaccurate with the dates he worked at Auckland Suburban Carriers to the extent that the following dates had been used: 1986 to 1990, 1989 to 1992, 1975 to 1982, 1986 to 1990, 1986 to 1991. Mr Glennie referred to a five year history at Auckland Suburban Carriers. which conflicted with the appellant's history of seven years, in his letter dated 7 September 1993. 8. In his decision the Review Officer applied ss. 1 and 10(2)(a) of the Act. The Review Officer concluded that the application for review could not succeed on the following basis:- "At the end of the hearing Mr Watson told me that he began to notice the tinnitus I think a couple of years ago. He stated in the claim questionnaire of 26 April 1993 that his deafness first developed two years ago. I have read Mr Glennie's report carefully. It is plain that Mr Watson has not worked for 15 years in the trucking business as stated there, no doubt on Mr Watson's advice to Mr Glennie. I also have my doubts as to whether Mr Watson was in the area full time as a transport manager. There is reference to his occupation as a driver early on on the file and he himself described the exact nature of his work on 2 March 1993: 'Heavy vehicles in confined space. Driving heavy vehicles.' At the hearing Mr Watson told me that he was not exposed to heavy gunfire in the Navy but in Mr Glennie's report there is a statement: 'Apart from times when there was firing practice with heavy guns on vessels on which he served he does not consider he was exposed to excessive noise.' I simply cannot accept that this level of hearing loss would first manifest itself two years before the hearing. Notwithstanding Mr Glennie's recommendation that under Section 7 of the 1992 Act the industrially induced deafness and tinnitus should be assessed at 35%, I believe that this claim should be declined as not arising from the time at Suburban Carriers. I share the Corporation doctors' views. I acknowledge Mr Glennie's point that he believes that the Corporation doctors should have discussed the matter with him but I have carefully considered his submissions at the hearing. I would comment that in other respects I believe the Corporation has bent over backwards to help Mr Watson formulate his claim. However I believe that there is not enough evidence linking this deafness to any work and I am unconvinced about aspects of the evidence as I have set out 9. above. The Corporation is entitled to reasonable certainty in these claims." Section 7 provides:- "Personal injury caused by gradual process, disease, or infection arising out and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if ... (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment." In her submissions, Ms Zumbach said that the onus of proof is on the appellant to persuade this Court of the validity of his appeal. The standard of proof on the appellant is to persuade the Court on the balance of probabilities 10. that his appeal should succeed: West v Firestone Tyre and Rubber Company of New Zealand Lid [1991] NZAR 514. Ms Zumbach submitted that it was the respondent's position that the appellant has not discharged the burden of proof upon him, to establish that the property or characteristic he has alleged caused or contributed to his personal injury, was present in his work as a truck driver at Auckland Suburban Carriers. Whilst the respondent accepts the appellant has suffered loss sufficient to constitute personal injury in terms of the Act on the basis of Mr Glennie's evidence, Ms Zumbach submitted the appellant must come within the meaning of s.7 in that his injury must have been "caused by a gradual process, disease, or infection arising out of and in the course of the employment" in order to have the benefit of cover. Ms Zumbach contended that the respondent did not accept that the appellant's injury was caused by his employment at Auckland Suburban Carriers, and nor is the evidence sufficient to establish a cause or connection between the injury and any other employment the appellant had been involved in since April 1974. Ms Zumbach referred to the inconsistencies in the appellant's evidence which she summarised as follows:- "When the Appellant left the employment of Auckland Suburban Carriers.. . On 17 February 1993 the Appellant advised the respondent he had left the employment of Auckland Suburban Carriers 18 months ago. 11. . In the gradual process questionnaire dated 2 March 1993 the Appellant indicated that he worked for Auckland Suburban Carriers from 1986 to 1990 (i.e. 3 years ago). . The employer questionnaire indicated that the Appellant ceased to be in their employment 'approximately 5 years ago'. Period of employment at Auckland Suburban Carriers . On 5 February 1993 the Appellant told Mr Glennie that after 1978 he worked for 5 years as a telephone operator before he went into the trucking business ie. started in the trucking business around 1983. . On 27 April 1993 the Appellant provided a statutory declaration that he had worked for Auckland Suburban Carriers from 1975 to 1982. . On 31 May 1993 the Appellant advised that he worked for Auckland Suburban Carriers between 1986 to 1991. . At the review hearing the Appellant told the Review Officer that he worked for Auckland Suburban Carriers between 1986 and 1990 (page 2). . In his application for review the Appellant stated that he had worked at Auckland Suburban Carriers for seven years. . According to the Appellant's gradual process questionnaire he worked for Auckland Suburban Carriers for four years. . The employment questionnaire stated that the Appellant had been employed 'for short period'. Years in the trucking business . The Appellant's told Mr Glennie that he had worked in the trucking business for 15 years. 12. . According to Mr Glennie's report the Appellant started in the trucking business around 1983. On 17 February 1993 the Appellant advised that he had left the employment of Auckland Suburban Carriers 18 months ago. Accordingly, he must have left Auckland Suburban Carriers some time in the middle of 1991. (Nine years?). . The employer's questionnaire indicates that the Appellant left the employment of Auckland Suburban Carriers five years ago. Other Employment . Mr Glennie reported that the Appellant had served in the Royal New Zealand Navy between 1956 to 1978 as a nurse. . The transcript of the review hearing indicates that at some time in his career with the Navy he worked in the engine room (bottom page 10). . On 27 April 1993 the Appellant provided a statutory declaration that he had worked at Auckland Hospital between 1965 to 1975, Auckland Suburban Carriers 1975 to 1982, Foodtown between 1982 to 1991. . On 27 May the Appellant advised that he worked for the Royal New Zealand Navy between 1956 to 1978 as a nurse, that he had worked at Auckland Hospital between 1981 to 1986 as a telephonist, and at Foodtown between 1986 to 1989 - no mention of Auckland Suburban Carriers at all. On 31 May 1993 the Appellant advised that he worked for the Royal New Zealand Navy between 1956 to 1978 as a nurse, Auckland Public Hospital telephonist between 1979 to 1981, Foodtown between 1981 to 1985. . According to Mr Glennie's report the Appellant worked as a telephone operator between 1978 and 1983. 13. 4.9 Overall, it is submitted that the Appellant's recollection of his work history is sufficiently unclear and inconsistent that the Respondent was entitled to seriously question the acceptability of the claim in terms of a gradual process arising out of and in the course of employment. 4.10 Given the difficulties the Appellant has had in the recollection of his work history, it is submitted that similarly his recollection of the environment in which he considers he developed his hearing loss must also be considered ........ Mr Glennie recognised that 55.9% binaural loss was "very high relative to the history of noise exposure only a period of five years". There is doubt over the period of the appellant's employment at Auckland Suburban Carriers. At p.9 of the transcript of the review hearing Mr Glennie concurred with the appellant that 'there was nothing else in the history that was apparent when he was exposed to excessive noises. It seemed to have been with Auckland Suburban Carriers." In the first examination report, Mr Glennie recognised that the Appellant was exposed to firing practice with heavy guns on vessels when he served in the Royal New Zealand Navy between 1956 and 1978. The appellant also said that he served in the Navy as a nurse which is at variance with his statement recorded in the transcript of the review hearing at the bottom of p. 10 that he worked in the engine room. It is the appellant's evidence, however, and that of Mr Glennie, that he was not exposed to excessive noise during that time. The only time he was subjected to excessive noise was at Auckland Suburban Carriers. Ms Zumbach contended that because the premises of Auckland Suburban Carriers have been demolished and the company has been wound 14. up, the respondent is severely prejudiced in that it is unable to confirm any of the appellant's evidence. Regrettably, the appellant's recollection of his work history is not clear and has been inconsistent throughout his claim. I have to agree with Ms Zumbach that having regard to all the evidence the Appellant has not discharged the onus of proof upon him, and that the Review Officer was entitled to make the comments that he was "unconvinced about aspects of the evidence". The respondent is entitled to reasonable certainty in these claims. The appeal is dismissed. (lane H. Lovell-Smith) District Court Judge