Horsley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 1 05 195 HELD AT TAURANGA IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN CRAIG RONALD HORSLEY Appellant (Appeal No. DCA 84/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 31st day of July 1995 APPEARANCES Ms R M Adams for appellant Ms J L Johnston for respondent DECISION OF JUDGE D A ONGLEY The appellant submitted a claim for cover and treatment expenses on 26 March 1993 and elected to receive lump sum compensation instead of a dependency allowance. Under s 147 of the Accident Rehabilitation and Compensation Insurance Act 1992 he would be entitled to lump sum compensation provided a claim in respect of the personal injury by accident had been lodged with the Corporation before the Ist day of October 1992. The issue in this appeal was whether the appellant had lodged a claim. The appellant claimed that he suffered personal injury by accident when his neck was twisted in a rugby tackle in 1985. The evidence of lodgment of the claim concerned events in 1985. In correspondence with the Corporation, the appellant said that he had seen a family doctor and had been prescribed anti-inflammatory medication but had not otherwise been advised to undertake treatment. He said that the doctor had told him that there would be no charge as the consultation was "covered by ACC". - 2 - He furnished a letter from his sister in which she confirmed that the appellant had suffered a neck injury in 1985 and that, when the symptoms did not improve, she suggested to the appellant that he should see a chiropractor, Mr Cheyne. The appellant was able to produce a copy of the chiropractor's professional card on which the chiropractor had written a short note which appeared to refer to damaged vertebrae. The appellant resumed playing rugby although he said his neck was still stiff and sore. In 1991 he sought further treatment. In 1985 the Corporation did not require claimants to fill in an individual claim form. Claims by medical practitioners or service providers were met through a bulk billing system. The medical provider would complete a schedule of claims for consultations rather than an individual claim for the injured patient. The schedules were preserved but they are for all practical purposes inaccessible because of lack of indexing. The policy of the Corporation is to require proof from other sources of a claim having been made by a medical practitioner. In most cases it is to be expected that the medical practice should have a record of the claim having been made but that is not always the case. In this case the appellant said that he had ceased consulting the doctor concerned because he did not have confidence in the doctor's competence. The appellant is himself a solicitor but in making this present claim he has been represented by another solicitor acting on his behalf. In 1993 his solicitors wrote to the doctor to seek out a record of the consultation and the resulting claim against the Corporation but he received only a note in reply stating "I retired from my practice two years ago - there was no successor". The Corporation wrote to the doctor in May 1995 and the doctor replied "Mr Horsley communicated with me about a year ago about this injury. I retired 4 years ago, there are no records at the Medical Centre to which I transferred my patients' records about Mr Horsley". In a decision on 8 February 1995, the Review Officer said that the Corporation had made a concession that in pre-December 1989 cases if a medical treatment provider had previously billed the Corporation for treatment for the injury in question the Corporation would accept that a claim was lodged at that time. The reason for that was, in part, that the Corporation's records before that time are not available. The Review Officer referred to the Corporation's policy of requiring information from the medical practitioner. He said that he had some difficulty accepting the appellant's evidence that the doctor had said that the charge would be made against the Corporation because when the appellant had made out the claim form in 1992 he could not remember the date any more specifically than being able to remember the year and he was at that point unsure as to whom he consulted about the injury in the first place. The Review Officer also said that from his own knowledge the doctor in question was of the "old school" and that, also from his own knowledge, many of those doctors were quite sparing in their charges against the Corporation, so that the fact that no charge was made to the appellant did not of itself prove that a charge was made against the Corporation. He concluded that insufficient proof had been produced to satisfy him that a claim was lodged in 1985. It is undisputed that there was no evidence at all of the possibility of any claim being lodged after 1985 until 26 March 1993. It is stated in the appellant's written submissions that his oral evidence was taken on oath before the review officer. There is no transcript of that evidence. The only - 3. transcript provided on the appeal consisted of eight pages in which only a short passage records remarks by the appellant. Possibly the Review Officer adopted the appellant's evidence from an earlier hearing when he had referred the case back to the Corporation to consider whether a claim had been made under the 1982 Act. Whether or not the Review Officer heard oral evidence from the appellant, it appears that he made no adverse finding that the appellant was not to be believed, but only that his evidence suffered from an inconsistency in that he did not remember the circumstances of consulting his family doctor some time after he had lodged the M46 claim for cover with the Corporation. The respondent's case was that the questions were primary evidential issues correctly decided by the Review Officer. Ms Johnston submitted that it was reasonable for the Corporation to require proof of a charge made by the medical practitioner against the Corporation, that no such evidence could be found and the evidence of later visits to a chiropractor did not assist in proving that the appellant had visited a doctor resulting in a claim against the Corporation. She emphasised that the appellant himself had been unsure of the name of the doctor and his subsequent claim to have been treated by a specific doctor was mere assertion. She submitted that if the appellant is to be believed, despite his own uncertainty, the fact that he said the doctor treated him without charge does not in itself assist in proving that the doctor claimed against the Corporation. Ms Adams for the appellant submitted that there was no inference to be drawn from the appellant's uncertainty at the time of filing the M46 claim for cover because the injury had occurred eight years before and the importance of identifying the doctor who had then attended the claimant was not then understood. She submitted that the fact that the appellant recalled the circumstances when he was later pressed to remember who the doctor was only natural and not an indication of unreliability; as she put it "that an honest witness may initially not recall details which, after subsequent careful reflection and reference to such records as diaries, are then remembered accurately". Ms Adams submitted that the appellant was not otherwise regarded by the Review Officer as lacking credibility. I accept that the Review Officer may have given too much weight to the fact that the appellant did not recall the name of the doctor when he completed the M46 form. Findings of credibility should not be disturbed on appeal because the tribunal of fact has had the opportunity of seeing and hearing the witness. In this case however the Review Officer made no adverse finding of credibility but on analysis of the available material he considered, in effect, that there was an inevitable area of unreliability because of the appellant's memory failure at the time of filling in the M46 form. If the appellant was an otherwise credible claimant, which is apparently not in dispute, the feature to which the Review Officer referred would create a doubt, but not a probability, that the evidence was unreliable. The Review Officer's reliance on that aspect and on the probability of a doctor in those circumstances not invoicing the Corporation for the consultation are questionable conclusions. They do not rest on findings of credibility and it is open on appeal for the evidence to be revisited. The evidence should indeed be scrutinised with care because it is self serving and not capable of contradiction by other evidence. There is no corroboration of the appellant's claim to have seen his family doctor, but there is at least some support for his claim. - 4- There is clear evidence that he suffered a reasonably serious neck injury at about the relevant time. It can be inferred that he would have sought treatment for such a significant injury, although he may have seen a chiropractor only. The fact of his attending a chiropractor does not therefore take the matter any further, but the evidence from his sister is relevant, confirming that, before he saw a chiropractor, he discussed with her his dissatisfaction with the family doctor. Putting that in the scales, and bearing in mind that he did not recall details at the time he completed the M46 form, it would be unfair to reject his claim of having seen a family doctor unless the Review Officer found him to be a witness lacking in credibility. If it is accepted as probable that he did consult his doctor then the next question that requires an answer is whether the doctor claimed against the Corporation. That is not a question that can be answered with any certainty. The doctor's reply, that he had retired without a successor, sheds no light on the subject at all. It can not be regarded as confirming that the appellant consulted him in 1985 when the appellant himself had forgotten. The appellant said that the doctor told him there would be no charge and the cost would be met by ACC. Regarded on its own, that evidence leads to a clear inference that the cost was probably met by ACC. There is of course a possibility that the doctor would have made no charge at all, but there is no ground to elevate that to a probability. The Review Officer found against the weight of evidence if he drew that conclusion. The case for the appellant involved satisfying the Corporation or the Review Officer of the probability of both events, first that he had consulted his family doctor, and secondly that the doctor had claimed for payment against ACC. If the Review Officer, after proper consideration of the evidence, had not been satisfied of the combined probability of those propositions it would not have been proper to disturb his findings. However in view of the way the evidence was weighed, and particularly the element of speculation with respect to the probability of consultation without charge, I have decided that the matter warrants reconsideration on appeal. In my view it is more probable than not that the doctor was consulted and did claim against the Corporation for the consultation. The appellant's evidence (as it is recorded in his counsel's submissions, and it is not disputed by counsel for the Corporation that the evidence was in fact given) was not only that he saw the doctor, but that the doctor prescribed anti- inflammatory tablets and gave the appellant a soft neck brace. It is no more than speculation to think that in those circumstances the doctor would not have claimed against the Corporation for what was obviously personal injury by accident. It is a most unusual situation that the fact of lodging a claim should be decided on the balance of probabilities. The lodging of a claim is usually an act which commences a clearly identifiable process. However, before 1989 the Corporation accepted claims for medical consultation by a bulk billing system that did not result in individual claim files being compiled by the Corporation. The Corporation cannot now deny that a claim made in that form was a claim lodged with the Corporation within the meaning of s 147 of the 1992 Act. Under s 147, claimants who lodged a claim with the Corporation before the commencement of the 1992 could apply for lump sum compensation before 1 April 1993 and the appellant wishes to qualify as one of those claimants. The Corporation has an internal policy requiring claims to be supported by confirmation from the medical provider that a claim was lodged before December 1989. That policy - 5 - operates fairly in most cases but when there is a genuine difficulty in locating the medical provider's records it is necessary to examine secondary evidence to determine whether a claim was made. Once the absence of records is explained there should be no bias against the claimant other than the ordinary onus of proving the issue on the balance of probabilities. In this case I am satisfied that the decision was against the weight of evidence and the appeal is allowed. The Corporation's decision declining consideration under s 147 of the 1992 Act is revoked. The appellant will have costs of $600. DATED at WELLINGTON this 29 day of August 1995 D A Ongley District Court Judge