GEC Alstrom Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 111 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GEC ALSTOM LIMITED (Re Mr Parkinson) Appellant (Appeal No. DCA 479/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 26th day of April 1999 APPEARANCE/COUNSEL R E Schmidt for appellant L M Rice for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to accept that the worker Parkinson had suffered a work injury. On 6 December 1993 the worker completed an M46 claim form on which his general practitioner, Dr Rowe, diagnosed his problem as " torn lumbar paravertebral muscles". The form noted that the accident had occurred on 6 December 1993 and that the first visit to Dr Rowe was the same day. The form noted that the injury had occurred "while lowering extension ladder and laying at ground level I twisted & strained lower back holding the weight to avoid damaging ladder". The appellant's occupation was noted as electrical leading hand for his then employer, Powermark NZ Limited 2 Powermark provided the respondent with its C3 earnings certificate in which it was recorded that the company accepted that the worker had suffered an incapacity as a result of a work accident and had paid the first week compensation from 7 December 1993 until 13 December 1993. On the basis of that information the respondent accepted that the worker had suffered a work injury for which he was then paid weekly compensation. On 18 March 1994 Powermark notified the worker that as he was unable to resume work as a result of his injuries in the accident his employment was terminated. The respondent referred the worker to Mr C Hooker, an orthopaedic surgeon, who issued a report on 3 August 1995. In that report he gave as his history the worker's description of the accident as it was contained in the original claim form. Mr Hooker's opinion was that the worker then continued to suffer from the same disability as arose out of that accident. It appears that at some intervening stage the appellant took over the business of Powermark and in November 1994 queried the incorporation of the worker's costs in its claim history notification. It considered that at the time of the accident the worker was not its employee. As the respondent was satisfied that the worker was an employee at the time of the accident and that this had been acknowledged by Powermark in its decision to include the costs of the worker's claim, the appellant's claim history notification was correct. On 30 April 1998 the appellant lodged an application for review of that decision and requested removal of the worker's costs for experience rating purposes. On 18 June 1998 the respondent wrote to the appellant explaining that it had investigated the worker's claim and that it was correctly noted as a work injury. Included in that letter was a notification of right of review as a result of which the appellant filed a further application for review dated 29 June 1998 to take the place of the previously filed application. It appears that on 22 June 1998 the respondent issued the appellant with an experience rating assessment which is now the subject of a separate application for review. The review officer concluded that the worker had suffered an accident at work on 6 December 1993 which was not a recurrence of a previous injury and that the respondent's decision was therefore correct. It is against that decision which the appellant now appeals. Ms Schmidt's submissions appear to be directed at the issue of experience rating when the issue in this appeal is simply whether or not the worker suffered a work injury. She submitted that while the worker had an extensive history of similar injuries it was possible that it could have occurred elsewhere than at his place of work. Ms Schmidt submitted that the review officer placed too much reliance on the worker's evidence, although he did not appear at the hearing of the review. She submitted that in these circumstances there was a breach of natural justice in so far as 3 the appellant was concerned because it did not have the opportunity to examine the worker. Ms Rice submitted that the Court should have regard to the decisions in Nelson Marlborough Health Services (Mckenzie) (25/99) and Nelson Marlborough Health Services (Appleman) (24/99) in which the court held that when the employer accepted an injury as a work injury there was no obligation on the respondent to issue the employer with a decision. As I explained to Ms Schmidt at the hearing, it would have been open to the appellant to call for the attendance of the worker to be examined but that this opportunity had not been taken. The claim form originally lodged by the worker was completed on the same day as the accident and his attendance on his doctor took place on the same day. The doctor considered the injuries sustained were the result of the described incident and that was also confirmed by Mr Hooker in his report. Moreover, the then employer took no issue with the claim and accepted that it was a work injury and paid the first week of compensation. When the appellant raised with the respondent the question of the inclusion of the cost of the worker's claim in its claims history notification, the respondent confirmed that it had accepted that the worker had suffered a work injury. However, after that initial advice and the lodging of the application for review on 30 April 1998, the respondent took the unnecessary step of issuing the decision of 18 June 1998 in which it included a right of review. I describe that decision as being unnecessary having regard to the decision of the Court in the Nelson Marlborough Health Services cases in which similar facts existed. Once the employer of the worker had accepted that a work injury occurred then it was not possible for that matter to be reopened on the receipt of a claim history notification. Exactly the same position applies in this appeal as it did in the Nelson Marlborough Health Services cases and accordingly I consider that the review officer's decision must be upheld. The appeal is dismissed. DATED at WELLINGTON this 4th day of May 1999 A W Middleton District Court Judge dca47998.doc(rd)