Foodstuffs (Wellington) Co-operative Society Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 3 195 HELD AT PALMERSTON NORTH 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 FOODSTUFFS (WELLINGTON CO- OPERATIVE SOCIETY 69 - 93 - 24 95- LIMITED Appellant (Appeal No. DCA 130/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of December 1994 APPEARANCES Mrs F M L Gush for appellant Mr A D Fawcett for respondent DECISION OF JUDGE D A ONGLEY The issue in this appeal is a factual question of whether an injury was a work injury. The claimant was working for the appellant at its Palmerston North premises on 19 May 1993 when he experience symptoms of a right shoulder injury when lifting a heavy box. He reported the accident to a supervisor who completed an accident investigation report form. The claimant continued at work and also continued his sporting activities which involved field jogging and a game of rugby. He reported that during the rugby game his symptoms got no better or worse and he did not consider the injury serious enough to take time off work or to seek medical advice. He experienced niggling discomfort during the following week and attended rugby training but avoided any activity that would affect his shoulder. The claimant said - 2- that on 27 May he lifted some heavy boxes and felt his shoulder injury recur. This account of what happened was derived by the Review Officer from a statement signed by the claimant. His version of events was different from the work injury report made by his supervisor which stated that the second event occurred on 28 May and that the claimant pulled a muscle in the middle of his back. The appellant says that is significant because it was a different kind of injury and is does not provide support for the contention that the original shoulder injury caused further trouble on 27th or 28th May. Nothing really hinges on that point because it is clear enough that the claimant had suffered a shoulder injury, the factual question is whether it happened at work or when playing sport. The claimant did not see his doctor until 31 May 1993. He said that his shoulder injury recurred at work on that day and prompted him to arrange an appointment. By then he had played rugby on 29 May and soccer on 30 May without experiencing any real problem. There are some minor discrepancies in the documents on the file. The claimant at first told the doctor the the accident happened on 27 May instead of the 19th. The doctor described the boxes involved in the accident on 19 May as dishwashing liquid while the supervisor described them as a Cadbury's order. The doctor later wrote to the Corporation and referred to the date of the claimant's first visit to him as being 21 May. It is common ground that this must have been a typing error and that in fact the doctor first saw the claimant on 31 May 1993. None of those matters reflect adversely on the claimant's credibility and they did not trouble the Review Officer. The claimant attended the review and read a written statement which he prepared on 2 November 1993. The Review Officer heard submissions from the appellant. He then addressed the difficulty of assessing whether the injury examined by the doctor on 31 May could reasonably have been considered to have occurred as early as 19 May and whether it may have been aggravated by playing rugby so that the disability may have resulted from a further accident to the shoulder during sporting activity. He decided to ask Dr Yee for further information and to provide the parties with a copy of Dr Yee's report for comment. Dr Yee replied on 8 November 1993 as follows: "The above patient first saw me on 21st May 1993 with a subluxation of his right shoulder. He reported that he did this on 19th May 1993 reaching up to lift a heavy box of dishwasher liquid. This is very likely to be the cause of his injury. He did not mention about his two rugby games on 22nd and 29th May, nor did he indicate aggravating his houlder on 27th May at work. I have always found Brent to be an honest patient and I feel that his acount of the accident fits in with his injury.' The Review Officer said: "Bearing in mind that the standard of proof I am required to observe is persuasion, in this instance I must look to the evidence as presented. The claimant's submissons are full and frank. It would appear that initially he thought recovery would occur naturally and it seems he made no serious effort to modify eritther his working or recreational activities to accommodate any discomfort. It was in effect not until he aggravated the injury over a week later - 3 - that he recognised that he needed medical treatment. From my view point cause and effect seem credible. The claimant was possibly unwise to either continue playing rugby or going to work, but there is no evidence that either activity affected his condition detrimentally until the further lifting strain on 27 May 1993 aggravated the pre-existing injury caused by the incident on 19 May 1993. In my view my decision must reflect this probability and therefore this application for review is unsuccessful. " The Corporation had to consider whether on the balance of probabilities personal injury by accident had occurred on 19 May. The Review Officer had to consider whether the Corporation's decision was shown to be unreasonable or wrong on the balance of probabilities. Stating the standard of proof as "persuasion" points to a possibility that the standard applied by the Review Officer was higher than the balance of probabilities, but he then clarified the standard which he applied in the last sentence quoted above. I conclude that the Review Officer applied the correct standard of proof and his findings should be given due weight bearing in mind that he saw the claimant and was able to add his own assessment of the claimant's credibility to the assessment of honesty ventured by Dr Yee. Mrs Gush submitted that Dr Yee's view was formed on incomplete and misleading information. He did not see the claimant until 12 days after the alleged accident and he then wrote a compensation certificate on the false assumption tht the accident had happened on 27 May insted of 19 May. He was not aware that the claimant had played two games of rugby and one game of soccer since the date of the first occurrence of discomfort in his right shoulder. The respondent submitted that there was clear evidence of shoulder strain on 19 May. The claimant's own account was supported by his superviser's report and a note from another employee who witnessed the event. The claimant's evidence was that he did not feel any aggravated symptoms or any other injury while playing sport and that he believed the injury might resolve itself but when it did not he took medical advice. Dr Yee was eventually informed of all the relevnt circumstances when the Review Officer wrote to him after the oral hearing but the doctor adhered to the view that the injury could be regarded as having occurred on 19 May having regard to the claimant's general honesty in report his symptoms. While there must always be some area of doubt, I find the Review Officer weighed the evidence correctly and reached a proper conclusion in finding that the Corporation's decision was reasonable. For those reasons the appeal is dismissed. DATED at WELLINGTON thistoday of January 1995 ex. D A Ongley District Court Judge