Downer and Company Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 179 197 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 DOWNER AND COMPANY LIMITED Appellant (Appeal No. DCA 110/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of May 1997 APPEARANCES D A Rennie for appellant P J Zumbach for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns work injury questions. Mr J W Ham, who was employed by the appellant as a tunneller at the Clyde tunnel lodged an application for cover in respect of an accident which occurred on 28 January 1991 when he was lifting steel tunnel supports. He was aged 29 at the time of the accident. His claim form indicated "injury to back two (2) discs". A medical certificate from Dr Kagan of Cromwell described the injury as "L3/4 disc". Dr Kagan certified the claimant unfit to work for 3 days. The Corporation's file does not indicate any compensation payments being made and there was no activity shown on the file until 7 November 1991 when Dr Kagan provided a further medical certificate stating "L3/4 disc playing up again". The claimant was certified unfit for - 2- work for 2 weeks and the certificate was renewed from time to time showing the claimant's unfitness for work for various periods during the following 6 months. The first specialist report was provided by Mr Grant Gillett, consultant neurosurgeon. on 23 January 1992. He indicated a continuity of symptoms beginning with the accident in January 1991 when the claimant had experienced a sudden pain in his back when lifting a steel beam. Mr Gillett reported that the claimant had been referred to a chiropractor and physiotherapist but obtained no relief. He said that the pain gradually spread from his back into his left buttock and knee. The pain was improved by traction, but over two months prior to admission to hospital in late December the claimant became progressively worse with tingling in the dorsum of the left foot. By the time he was examined by Mr Gillett he was unable to perform his ordinary daily activities. The report did not give any indication as to how Mr Ham had managed during the nine months between the accident and the time of his claiming for benefits in early November 1991. Mr Gillett made a provisional diagnosis of an S1 nerve root lesion but that was not confirmed by a CT scan. He arranged a myelogram which again did not confirm a nerve root compression, and he discharged Mr Ham from hospital on 18 December 1991 with advice that he should continue conservative treatment involving anti- inflammatory medication, physiotherapy and a lumbar brace. He could not exclude the possibility that there may have been a disc prolapse that could show up in further investigations. He considered that prospects were poor for Mr Ham getting back to a heavy labouring job. Mr Ham was certified unfit for work for continuous periods through to May 1992 when he left Downers. The Corporation's file then shows a memorandum from a rehabilitation co-ordinator reporting that Mr Ham wished to return to machinery operating and he would be trying a one-day work trial with Baker Construction in Alexandra. Work trialling was apparently unsuccessful. A further memorandum of 28 May 1992 indicated that Mr Ham had notified the Corporation's Alexandra office that he had a job with Fletchers where he would be operating one of the diggers on the barges. Mr Ham understood that he would be sitting in one place and just pulling levers, and he thought that the work would not aggravate his back too much. The rehabilitation co-ordinator noted "In my experience, he may have difficulties with this type of work, so we might see him back, but I see no problems with him trying out the job". The attempt at working was unsuccessful. Mr Ham notified the Corporation on 16 December 1992 that he had had to resign because of his back injury. The contemporaneous medical certificates were first a certificate of Dr Pauley of 27 November 1992 for unfitness for any type of work for one week because of "exacerbation of back injury". The next was a certificate of Dr M Ansarian of 9 December 1992, unfit for work for 2 weeks "back pain (recurrent)". On 10 December 1992 Fletchers notified the Corporation of the claimant's earnings - at the same time referring to the injury as "non-work accident". There is nothing on the Corporation's file to indicate that there had been a further accident. The reason for the "non-work accident" comment is not clear but Fletchers no doubt wished to avoid the suggestion of a work injury while in their employ. A medical certificate - 3 - from Dr Kagan on 21 December 1992 described the continuing injury as "low back pain". No further specialist report was obtained until 2 November 1993 when Mr R G Dykes, surgeon, reported after examining Mr Ham. He recited a brief history beginning with a sudden pain when he was lifting steel on 28 January 1991. He said the pain was not bad enough to force him to stop work then but over the rest of the day he got more pain and he could not work over the next 2 weeks. Mr Dykes reported: "Because of continuing trouble with the back from that time he had broken time at work and over the second six months of 1992, he was doing a light job driving a machine on the river deepening project where he was sitting most of the time Even with this work the back pain got gradually worse and was actually bad when he stood up after sitting. He therefore had investigations at the Neurosurgical Unit at Dunedin Hospital in December 1992. No condition likely to benefit from operation was found but he has not been back to work since that time." There is a consistent history of increasingly severe symptoms without any indication of a further precipitating event and without any indication that the claimant was performing heavy work likely to cause an injury to his spine. Mr Dykes thought it unlikely that the claimant would benefit from surgical treatment and regarded his condition as "essentially stationary". He considered that Mr Ham was not strong enough for heavy manual work and would certainly have discomfort with a sitting job, particularly if it were driving trucks with jarring. Mr Ham provided a letter in support of a lump sum claim. In relation to his work at Fletchers, he said that he tried to return to the work force in a less strenuous capacity. He said the work involved no heavy activities at all, rather his duty was driving a machine to unload gravel from a barge and load it into a hopper. He said that due to severity of pain he was forced to stop work. He did not refer to any further accident or acute symptoms. The appellant was assessed with premium loading in respect of compensation paid to the claimant. In 1995 the appellant protested the premium loading. The Corporation reviewed the material available to it but was unable to find any suggestion of an accident suffered by the claimant other than the accident of 28 January 1991. There was an underlying assumption in the medical reports that the claimant's ongoing incapacity resulted from the January 1991 accident. The experience rating assessment against the appellant was the subject of a review. In a review decision given on 19 March 1996, the review officer found as follows: "I have studied the Corporation's file on Mr Ham in some detail. The background of events is as Mr Lee submitted at the hearing. One of Mr Lee's main submissions was that the diagnosis of Mr Ham's claim has altered on a number of occasions. While I agree there has been alteration of the diagnosis, there was never a firm diagnosis at the time of the accident on 28 January 1991. In fact, it is apparent from all the medical reports on the file that there has never been a firm diagnosis of Mr Ham's back condition. On this basis there is no evidence that there was a new injury at any time after 28 January 1991, including December - 4 - 1992 after Mr Ham's employment with Fletchers. It is also apparent from the file that Mr Ham was keen to test his ability to be employed in May 1992. He commenced employment at Fletchers against the advice of his medical practitioner and the Corporation's Rehabilitation staff. When he was then re-incapacitated in December 1992 it was evident that he had been unable to fully comply with the requirements of his position and his back condition had gradually worsened. It is apparent that employment at Fletchers was considered a paid work trial by both Mr Ham and the Corporation. That work trial failed. On the basis on all the above information I consider that the Corporation's decision to continue to attribute costs to Downers is correct. There is no evidence to support apportioning costs from Mr Ham's claim to any other source." On appeal, it has been submitted that the available evidence is inadequate to establish against the appellant that the claimant's continuing incapacity is a consequence of an accident in January 1991. The appellant submits that the medical reports are sufficient to establish incapacity but lack any sufficiently reliable diagnosis to establish the appellant's continuing liability for experience rating. The lack of evidence is compounded by the fact that Mr Ham did not attend the review hearing and could not be located in order for notice of this appeal to be served. An order was made dispensing with service to enable the appeal to proceed. The respondent has submitted that the claimant's condition has essentially remained the same from the time of his injury in 1991 and that, on the balance of probabilities, it continues to be attributable to the work injury suffered in January 1991. The history, brief as it was, that the claimant gave to Mr Gillett and Mr Dykes, and his own letter in support of lump sum compensation, refers to a continuous kind of disability and raises no question of any intervening accident. All that the appellant is able to point to is a medical certificate in December 1992 noting "exacerbation of back injury". The appellant refers to the claimant's reported history of being involved in pig hunting, deer stalking and motorcycling. The appellant also refers to a comment in the claimant's letter of 17 November 1993 that he had suffered back pain for 2 years and 10 months. Although the appellant has calculated that back pain of that duration must have begun before the January 1991 accident, that does appear to be an error. The basis of the appeal, in essence, is that there is insufficient evidence to show that a subsequent injury, whether a work injury or not, caused or contributed to the claimant's ongoing incapacity. I think that, in the absence of any evidence or even any suggestion of a further accident, the Corporation is entitled to infer that the injury from the original accident is the cause of incapacity. The question on appeal still concerns the Corporation's original decision. It was a decision made according to the weight of evidence available to the Corporation. On the available material, I do not consider that the Corporation's decision can be faulted. The real problem is that the available material does not include a full and precise history along with exhaustive specialist reports. The appellant has not been able to cross-examine the claimant, either at the review hearing or at the appeal. In ordinary civil proceedings, the lack of opportunity to examine the claimant might well be a matter that would give rise to - 5 - sufficient doubt about the ordinary inferences to be drawn from the other material, to result in a determination in favour of the appellant. However, the Corporation's decision is not one that is made in the course of civil proceedings, it is one made after reasonable inquiry and after taking into account relevant matters and excluding irrelevant matters. It is based primarily on acceptance of a general practitioner's diagnosis that has not been contradicted by specialist opinions after the two occasions on which the appellant was examined. Mr Gillett's provisional diagnosis of an S1 nerve root lesion was not confirmed. There is therefore sufficient medical opinion to support a finding that there was injury caused by an accident in January 1991, and that incapacity from that injury has continued throughout. In circumstances such as these, the appellant is left in a difficult situation, having to provide some evidence to contradict the inferences that can be drawn from the written material held on the Corporation file. To do that, I think that the appellant finds itself in the position of having to find and produce such evidence, by making inquiries and, if necessary, calling witnesses at the review hearing or on appeal. That may even include calling the employee as a witness in some cases. For those reasons I find no ground for revoking the Corporation's decision. The appeal is therefore dismissed. DATED at WELLINGTON this 9th day of September 1997 D A Ongley District Court Judge