Bell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT DCA No. 157 /95 HELD AT AUCKLAND Decision 153/95 UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 49 / 95 / 2045 . Section 91 of the Act BETWEEN G. BELL APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 20 October 1995 Date of Decision: 21 December 1995 The appellant in person N.L. Smith as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The claim is referred back to the Corporation to determine whether the appellant has any disability for which he should receive lump sum compensation. 2. The Issues: The issues in this appeal are whether the appellant complied with s. 147 so as to be entitled to lump sum compensation and if so, whether he suffered any personal injury by accident for which he should receive lump sums. At the hearing, Ms Smith for the Corporation, agreed that if I find that Mr Bell has established that he complied with s. 147, the Corporation will investigate whether he has a disability resulting from the accident which entitles him to lump sums. To a certain extent written submissions presented by Ms Smith at the appeal hearing focussed on whether the appellant was entitled to cover under the 1992 Act. After examining the documents on the file, and the appeal decision in Horsley (Decision No. 105/95) she advised that the Corporation accepted that a claim had been lodged by the appellant in December 1985 and that pursuant to s. 135(3) of the 1992 Act, the acceptability of the claim should be determined under the 1982 Act. Introduction: In the course of his duties as a fire officer, the defendant attended at the clean up of the ICI Mt Wellington fire in December 1984. The fire occurred on or about 20 December 1984, and the defendant attended the scene of the fire the day after the fire as he was responsible for cleaning up. That included cleaning the fire-fighting equipment. He recalls getting soaked by accident in the chemicals, and may also have come into further contact with the chemicals 3. when he was cleaning up the fire fighters suits and gear left by the crew who had attended the fire. After the fire the appellant attended a meeting held by the principal medical officer of the New Zealand Fire Service. The meeting was organised by the Fire Fighters Union and the New Zealand Fire Service as a precautionary measure to ensure that the fire fighters' rights to compensation were identified and preserved if any sort of incapacity subsequently ensued. The appellant says he completed a claim form at that time, and handed the form to either his employer or the Union. There is no such claim form on the Corporation's file. The appellant says he saw his general practitioner a couple of days after the fire as he had stomach pains. He says his GP advised him that his stomach pains were likely to be due to something which was probably by then out of his system. There is no medical certificate on the file relating to that visit. On the file there is a C14 first medical certificate relating to the appellant dated 11 December 1985, and completed by Dr Phillip. Under the heading "Patient's description of cause of injury" it states "ICI fire -> toxic poisoning." It is not clear how this certificate got on to the Corporation's file, and at the review hearing the appellant stated that Dr Phillip was not his general practitioner. At the appeal hearing he stated that Dr Phillip may have been a locum for his general practitioner, Dr Fe therston. It appears that the appellant went to see his general practitioner on 15 March 1993. There is a C15 further medical certificate on the file 4. completed by Dr Fetherston. Under the heading "Progress report on injuries" it states "Chemical exposure. Further investigation. USS/barium enema." It appears that a claim form was completed after that visit. There is a claim form on the file dated 29 March 1993. It states that the date of injury was 21 December 1984, and the injury was "chemical exposure". In a "Gradual process, disease or infection claim, medical practitioner questionnaire" completed on 11 June 1993, Dr Fetherston stated that during the course of a Fire Service medical, the appellant mentioned abdominal pain he had had over the previous months that he attributed to his attendance at the clean up of the ICI fire. Dr Fetherston also stated he did not consider that the appellant had any specific symptoms that could be attributed to the ICI fire, but like all those who attended the fire, there had been considerable psychological stress. The barium enema and ultrasound scan were normal. The Corporation referred the matter to Dr Dryson. He considered the documentation on the appellant's file, and the Department of Health report on the ICI fire, and concluded that the appellant's symptoms were not due to the toxicological effects of chemicals he had encountered in the clean up of the ICI fire. On that basis the Corporation declined the appellant's claim in a letter dated 19 October 1994. The appellant applied for a review of that decision. The review was heard on 17 May 1995. At the review hearing the appellant complained of psychological problems including losing his temper and losing his memory. He stated that he did not consider that he had those problems before attending the clean up of the ICI fire. 5. At the hearing of review on 17 May 1995, Mr Bell said he remembered coming in to the Corporation before the cut-off date for electing a lump sum claim. He had another problem that he wanted to talk about and he was interviewed by the lady at the desk. He asked her advice and she told him to re-lodge everything that he had previously done in case it had been lost in the records. She told him to put them all back in again and he did. He said that he was quite sure he filled out the form and gave it to the Corporation. He could not remember what it was exactly, but it was to do with the lump sum. He said later in the hearing that there was definitely lodged a claim to get a lump sum. The Review Officer issued a decision dated 25 May 1995. He concluded that the medical certificate completed by Dr Phillip dated 11 December 1985 did not amount to a claim for cover under the 1982 Act, and that while the appellant may have suffered an accident by being exposed to chemicals, it was not clear that there was any personal injury resulting from that accident, and having found that there was no personal injury within the definition provided in the 1992 Act, it followed that a claim for a mental injury could not succeed under the 1992 Act. The officer in his decision also said that Mr Bell was unable to remember if he signed an election form to receive lump sums. The appellant filed a notice of appeal dated 10 July 1995. In it he said in part that Dr Fetherston's remarks and findings disregarded evidence given at the Elias hearing, Dr Dryson has formed a medical opinion without consulting or seeing him, and he did not accept that an election form for lump sum compensation was not filed. 6. Appeal Hearing: At the hearing of the appeal on 20 October Mr Bell read a written submission. He said that during the days immediately following the fire he was examined by the medical officer for the Auckland area of the New Zealand Fire Service when he developed stomach pains. He was advised to fill out an ACC claim form. He completed the form and as per Fire Service procedure, he submitted the form to the Fire Service Area Headquarters. This procedure was known as a "precautionary accident report", and was intended to record any accident or injury that happened on duty, but may cause problems only at a later date. Should he have to take time off work at a later date, then the Fire Service would submit the already completed document to the Corporation. He submitted that the original claim form was lodged in December 1984, and must have been misplaced by the Corporation. He referred to other errors which the Corporation had made. He said he was treated by Dr Tizard along with many other fire fighters, and understood that Dr Tizard was paid by the Corporation. He said he gave evidence and underwent tests during the compilation of the Elias report. He also referred to a media statement issued by the Minister of Health dated 29 March 1990, and two paragraphs from the Elias report to the Minister of Health:- "In May 1988 the ACC Appeal Authority, in a decision relating to an ICI fire-fighter, concluded: The evidence is certainly clear that since the attendance at the CI fire this appellant has suffered numerous problems and whether their cause be psychologically triggered or otherwise the evidence suggests that what triggered the problem was his attendance at the fire, and therefore the appellant is entitled to cover." 7. (b) We are of the view that the epidermological study demonstrates that the health of the ICI fire fighters (their central nervous systems, skin complaints and subjective distress) and their impaired performance of neuro- psychological tests are attributable to their attendance at the ICI fire. If they had not attended the ICI fire they would not be affected by the symptoms to the extent that they have been and at a level significantly greater than the Wellington reference group. Although the risk of unknown confounders cannot be eliminated, we consider that the strong probability is that their attendance at the ICI fire is the major factor in their continued health problems." With reference to his claim and the appeal for "full compensation" Mr Bell said that he is seeking lump sum compensation under the 1982 Act. He said that he applied for lump sum compensation when he went to the Panmure office and filled out the form with the Corporation's officer and left it with him. He said that the Corporation sent out forms before the law change, and that he filled out the form and handed it to the officer before the law change. He said he filled out a similar form for the knee injury that he had suffered and received lump sum compensation for it. Attached to his submissions is a copy of a letter dated 19 October 1995 from Judith Tizard, the Member of Parliament for Panmure, to the Minister of the Corporation. In the letter Ms Tizard states that there appears to be some correspondence missing from Mr Bell's file, and that he objects to the rejection of his claim in those circumstances. She says:- "There were many fire-fighters at the Mt Wellington Fire Station who suffered as a result of their service to the public in containing the chemical spill that followed the fire at ICI, and the reports to the Minister of Health on the health consequences of the ICI fire published by the Department of Health in January 1990, clearly established links between the fire, the chemical spill, and the symptoms experienced by the fire-fighters involved. I urge you to make sure that New Zealanders employed in 8. hazardous occupations are full protected from the consequences of their work, the purpose of which is to protect the public. I ask you to consider the policy applying to Mr Bell's application and make sure that he and his fellow workers are fully protected." On behalf of the Corporation, Ms Smith presented written submissions. In those submissions she set out the background to the appeal. She referred to s. 135 of the Act and the decision in Horsley (105/95) which was issued after the Review Officer had given his decision. She advised that on the authority of Horsley the Corporation accepts that the medical certificate on the file from Dr Phillip means that a claim was lodged by the appellant in December 1985, i.e. prior to 1 October 1992, and that pursuant to s. 135(3) of the 1992 Act the acceptability of the appellants' claim should be determined under the Accident Compensation Act 1982. She referred to the definition of personal injury in s.4 of the 1992 Act and said that as the case now falls for consideration under the 1982 Act, it is necessary to look at the considerable body of law which has built up under that Act in relation to claims for mental stress which is not based on a physical injury. She referred to the Court of Appeal decision in Accident Compensation Corporation v E (1992) 2 NZLR 426, and the High Court decision in Cochrane v Accident Compensation Corporation (1994) NZAR 6, where the Court said:- "There is no need for the applicants under the Act to show physical injury. It is not necessary to add on mental consequences to some previous or pre-existing physical injury. A mental injury alone will be enough to constitute personal injury by accident ...' Ms Smith submitted that the appellant has to show on the balance of probabilities a causative link between his attendance at the clean up of the ICI 9. fire and the mental consequences of which he now complains. She submitted that he has not supplied any medical evidence to support his contention that he is suffering from any mental consequences or that, if he is suffering from mental consequences, those consequences can be linked to his attendance at the clean up of the ICI fire. In her verbal submissions she submitted that if the appellant had established that he had a mental condition which was caused by his attendance at the clean up of the ICI fire, he still had to comply with s. 147 of the 1992 Act before he could qualify for a lump sum payment. She submitted that there was no evidence that the appellant had lodged a claim for lump sum compensation before 1 April 1993 as required by s. 147(1), or that he had lodged a written election for lump sum compensation no later than 31 March 1993 as required by s. 147(2). When questioned whether the Corporation could contest the evidence that Mr Bell gave at the review hearing relating to his lodging of a claim for lump sum compensation, Ms Smith submitted that his evidence was unclear, and should not be accepted. She referred to the statement by the Review Officer in his decision that the appellant was unable to remember if he signed an election form to receive lump sums, and she submitted that reading all the evidence and putting on it the interpretation most favourable to Mr Bell, he lodged an election form but not an application form. When asked why the Corporation would accept an election form without telling him he had not filed an application, Ms Smith said that the Corporation did not have to tell Mr Bell that he had not filed an application form. Ms Smith also relied on the absence of the forms from the files, and the Review Officer's assessment of Mr Bell's credibility. 10. File Relating to Knee Injury: As I have already set out, Mr Bell said at the review hearing that at the time he applied for lump sum compensation in respect of the chemical spill, he filled out a similar form for the knee injury and later received lump sum compensation for the knee injury. Accordingly, I have obtained from the Corporation a copy of its file relating to the knee injury. The knee injury file relates to a claim dated 29 January 1986 for injuries suffered on 28 January 1986 when Mr Bell fell down a manhole in the course of his employment as a fire-fighter. It appears from the file that earnings related compensation was paid and the last document on the file relating to that is dated 6 May 1986. The file was re-opened on 5 November 1992. There is on the file an undated notice from the Corporation relating to the right to elect between a lump sum and an independence allowance and an undated option for signed by Mr Bell electing an independence allowance. However, there is another undated option form electing for a lump sum. There is a note dated 4 March 1993 from the Corporation to Mr Bell which reads:- "Here is 2 new option forms. Your other 2 have not yet been received. Please return these 2 to address on letter and write on them that previous elections are to be ignored. Also, we have no CIS medical certificate to commence consideration of permanent disability on your knee injury. 29A 28/1/86 Provide this if you wish to claim lump sum for your knee." 11. There is a note dated 15 March 1993 from Mr Bell to the Corporation which reads:- "Thankyou for your phonecall last week. Enclosed is the C15 plus the election form ticked for lump sum option. Could you please find also the C14 and C15 and account for treatment due to Exposure to Chemical at ICI Fire." (There are other documents on the file relating to the knee injury, and by letter dated 7 June 1994 awards of $1,275 under s.78 and of $1,000 under s.79 were made, and it appears that the file was closed.) The documentation on this file shows that:- 1. Mr Bell was aware at least in early March 1993 of the need to file claims and elections for lump sums before 1 April 1993. 2. With his note dated 15 March 1993 he filed an election for lump sums before 1 April 1993. This form probably related to the knee injury election. 3. He was enquiring in his note about his claim relating to chemical exposure from the ICI fire. 4 . It is possible that documents were placed on the incorrect files. There is a computer print out which shows that there had been claims by Mr Bell in respect of accidents dated 28 January 1986, 15 June 1986 15 February 1989, 12 February 1991 and 29 May 1992. 12. Conclusion on s. 147: Having read what was said by Mr Bell at the review hearing in light of the documents on the file relating to the knee injury, I accept on the balance of probabilities that:- 1. Mr Bell lodged at the Panmure office of the Corporation a claim form for a lump sum in relation to the chemical fire. 2. That form was a form similar to that on the knee injury file and was in effect an application for lump sum compensation and an election to receive lump sum compensation. 3. That form was lodged with the Corporation before 31 March 1993. 4. Accordingly, although it appears that the form has been misplaced within the Corporation, Mr Bell has established that he complied with s. 147. As I set out earlier in this decision, the Corporation in its decision letter referred to the medical evidence and said that cover was declined as the claim did not meet the criteria for personal injury caused by gradual process, disease or infection arising out of and in the course of employment. However:- 1. What Mr Bell said at the review hearing may mean that he has suffered mental consequences or mental injury sufficient to constitute personal injury by accident under the 1982 Act and 13. 2. Some of the correspondence on the file suggests that some fire-fighters were awarded lump sum compensation as a result of their attendance at the fire, and 3. Ms Smith advised at the appeal hearing that if I found that Mr Bell had complied with s. 147 the Corporation would investigate further where he has any disability resulting from the accident for which he should receive lump sum compensation. Accordingly, the claim is now referred back to the Corporation to determine whether Mr Bell has any disability resulting from his attendance of the clean-up of the fire for which he should receive lump sum compensation. District Court Judge