G L Bowron & Co Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 15 3 /97 HELD AT CHRISTCHURCH 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 GL BOWRON & CO LIMITED Appellant (Appeal No. DCA 261/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of June 1997 APPEARANCES N F Consedine for appellant R Irving for respondent DECISION OF JUDGE D A ONGLEY The question in this case was whether the claimant suffered personal injury from an accident arising out of and in the course of employment. The claimant, Mr Roper, claimed to have suffered acute symptoms on 11 October 1995 when he was working at a conveyor belt in the appellant's premises, lifting wet skins and sorting them into bins. In a letter which he wrote to the Corporation on 1 November 1995 he said that he had suffered slight lower back pain for the past year and he had been able to relieve it by taking micro pauses throughout the day. He said that on 11 October 1995 his employment task involved a lot of twisting and turning, and his back symptoms then became severe. He found that micro pauses only - 2. intensified the pain, and from that date onwards the pain became more constant, so on 17 October he sought medical advice. He returned to work with anti-inflammatories but the pain worsened. After that he was referred to a chiropractor. His general practitioner answered a questionnaire and stated that the claimant suffered strain to his back with heavy lifting on 11 October 1995, but had had continual and increased back pain at work for 18 months. He had attended his general practitioner before for back problems. On 8 November 1995 S J M Craig, chiropractor, reported that: "This young man came to see us upon referral from his G.P. Dr Schousboe, on October 25, 1995 complaining of central low back pain. He described to us that he had hurt his back at work while working with pelts in a tanning process for G.L. Bowron Ltd., two weeks previously to consulting us. He was in obvious pain and was antalgic to the left, and distinctly uncomfortable while standing, and sitting, and related that his sleep was disturbed because of the pain. We examined and x-rayed his lumbar pelvic area and found that he was suffering from a sub-acute lumbar joint sprain, with accompanying paraspinal muscle spasm. His low back displayed a scoliosis to the right, and his range of motion was markedly reduced in lateral flexion to the left and right. There were a number of positive orthopaedic tests that all confirmed the diagnosis and there were no significant neurological signs that may have indicated any thing other than a mechanical low back sprain/strain. It is our opinion that Nicholas has caused his injury in a loaded rotatory manoeuvre that is a common among manual workers. We see many of these types of injuries in our practice and we have no reason to suspect that his condition is any different than any other type of mechanical low back syndrome of this nature. Furthermore we are confident that he will recover normally and intend to provide him with a series of low back exercises designed to strengthen his lower lumbar spine in an attempt to reduce the chances of any recurrence of this problem." The appellant appealed against a decision of the Corporation of 17 May 1996 accepting Mr Roper's injury as a work injury. The appellant was represented at the review hearing on 17 July 1996 by Mr Brocherie, who informed the review officer that the employer was concerned that Mr Roper's non-work activities could be implicated in the injury. In particular, Mr Roper had been seen surfing since the injury occurred and he was known to be involved in surfing for recreation. Mr Roper explained to the review officer that when his symptoms were at their worst he could not surf. He said that he went for a couple of months without surfing, and he said that the type of board he used did not require much twisting. He had never had back trouble from surfing before and he had played rugby for six years and had not experienced any problem. His first experience of back symptoms was in his employment with the appellant, he said, about a year prior to the accident. The appellant's foreman said that when Mr Roper had returned to work after a period of time off he could not sit down for periods of time or stand up for periods of time, and the foreman questioned how Mr Roper could have continued surfing. Mr Roper said - 3. that his doctor had advised him to remain active. A similar question was raised about Mr Roper painting at home The review officer found herself satisfied that the claimant's non-work activities were not inconsistent with the injury having been caused in his employment. That finding was available to the review officer on the medical and other material before her, and she specifically said that she had no difficulty in accepting Mr Roper's evidence, having found him to be an open and straightforward young man who answered the questions willingly. On the hearing of the appeal the appellant has raised the same matters that were considered by the review officer. The appellant contends that the skins were not heavy hides but sheepskins weighing about three kilograms. There is no indication that the chiropractor was under any different impression. The activity described by the chiropractor was a loaded rotatory manoeuvre common amongst manual workers. Although the claimant's general practitioner may have been under the impression that heavy lifting was involved, it does not appear that the chiropractor based his opinion on heavy lifting, at least he did not say so. The weight of evidence indicates that the symptoms were associated with sorting skins off the conveyor belt and that there were acute symptoms on 11 October 1995 that can be associated with a strain injury. The chiropractor diagnosed an injury of acute lumbar joint sprain after examining the claimant and viewing x-rays. There is not very much medical opinion on this claim file, but what there is is reasonably straightforward and was sufficient to justify the review officer's decision. If the employer wished to raise other possibilities it probably would have been necessary to arrange further medical examination and request a specialist to answer specific questions concerning the possibility of causes other than an employment task. I note that some of the employer's submissions referred to the requirements of s 7 relating to gradual process injuries in the course of employment. However, during the argument on appeal it was clear that the Corporation's decision and the review officer's decision related to an injury by a specific accident or series of accidents on 11 October 1995. The employer's representative was aware that the appeal related to that question. For those reasons the appeal is dismissed. DATED at WELLINGTON this 4th day of August 1997 4 . D A Ongley District Court Judge