Blumhardt v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 38 197 HELD AT WELLINGTON 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 DONALD BLUMHARDT of Kaiwaka. Appellant (Appeal No. DCA 141/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE D A ONGLEY This appeal is heard on the papers after agreement between the appellant and the respondent that the appeal should be allowed, and the employer consenting to that course. The appellant applied for compensation in relation to biceps tendonitis strain due to repetitive stretching, bending and twisting of his arms during the daily routine of cheese making. The claim for cover was accepted by the Corporation and the employer applied for a review. The appellant and the employer attended a review hearing on 15 April 1996. The employer did not dispute that the appellant suffered tendonitis but disputed that the condition arose out of and in the course of employment. The review officer found that the characteristic of extensive use of the arms contributed to the appellant's personal injuries. It was implicit in that finding that the injury was attributable to a particular property or characteristic of his employment. The review officer also accepted that there was no contributory outside activity so that the conditions required by s 7(1)(a) and (b) of the Accident Rehabilitation and Compensation Insurance Act 1992 were established. However in relation to s 7(1)(c) the review officer said: - 2 - "However I do not accept, on the evidence before me, that the risk of suffering this personal injury is significantly greater for persons performing Mr Blumhardt's employment task in the particular environment at Puhoi, than for persons who do not perform it. In other words I believe that that paragraph means in practice that at least one other person at Puhoi or in the fine cheese making industry would have to have suffered tendonitis from the lifting and stretching and there is no evidence before me that anyone else has suffered this injury. On the contrary. The criteria in Section 7(1)(a), (b) and (c) are to be strictly enforced. Mr Blumhardt meets two but not all three of the criteria. Accordingly this cannot be regarded as a work injury and the Corporation's letter of 23 February 1996 is revoked. The application for review is successful." It appears that the Review Officer elevated a question of evidence into a conclusive test for the requirement under s 7(1)(c). If no other worker performing a similar employment task had suffered from a condition like that of the appellant, that would be one piece of evidence to take into account in deciding the question of comparative risk for persons performing the appellant's employment task as against persons not performing that task. The Review Officer however acted on a wrong principle in considering evidence on that point to be conclusive. The appellant provided written submissions in support of the appeal. It might be said that in the course of those submissions the appellant fell into a similar trap in submitting that because he did not suffer a repetitive strain injury before his employment, but did suffer such an injury when he was employed, it must be accepted that the risk was significantly greater for persons performing the employment task than for persons who do not perform the task. That approach is purely subjective and fails to examine the nature of the employment task in the employment environment under s 7(1)(c). The appeal must be allowed and the claim for cover referred for rehearing before a review officer. There is a difficulty of interpretation of s 7(1)(c). One question is whether "persons" are persons generally or persons with the characteristics of the claimant. Two decisions of this Court are those of Bilkey and a decision of Mallia which has just been issued. The proper construction appears to be to take into account all persons including persons with the general characteristics of the claimant. The inevitable question is therefore whether persons with the claimant's characteristics have a significantly greater risk in terms of s 7(1)(c). The preferred method of presentation of evidence is to obtain the opinion of an occupational specialist or specialists in order to evaluate the nature of the employment tasks, and to give an opinion on the risk comparison required by s 7(1)(c). In this case that had never been done and the review officer was obliged to reach a finding on inadequate evidence. The respondent has indicated that if the case is referred back to review it will obtain an occupational specialist's report on the appellant's injury. It is preferable that evidence of that nature should be presented at review level rather than on appeal, and for that reason, rather than hearing evidence in order to determine the - 3 - appeal, an order is made for rehearing of the review. Following that, rights of appeal will apply in the ordinary way. No order is made for costs. DATED at WELLINGTON this 25' day of Mouch 1997 D A Ongley District Court Judge