GMP Joinery & Timber (1990) Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 145 /98 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 GMP JOINERY & TIMBER (1990) LTD DCA 212/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of June 1998 APPEARANCES: Mr A Blair for appellant Mr A D Barnett for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Review Officer was correct to hold that a fracture of the bone in the claimant's left forearm in an incident on the 14th of 2 November 1995 was part of the personal injury by accident suffered by the claimant on the 9th August 1995. BACKGROUND FACTS Leslie Paul Beaumont (hereinafter called the claimant), then aged 39 years, was employed by the appellant as an aluminium joiner in Blenheim. On the 9th August 1995 the claimant was lifting a heavy window frame in the course of his employment when he sustained an evulsion of his biceps tendon in his left elbow. That injury required immediate surgery which was carried out by Mr R Maxwell, orthopaedic surgeon, and that surgery involved the re-affixing of the tendon to the proximal ulnar through drill holes made in the ulnar. The claimant made good progress following the surgery and regained a good range of elbow movement. On the 14th of November 1995 the claimant tripped and fell on to the corner of a lounge chair at his home causing a fracture of the ulnar through the site where his biceps tendon had been repaired to the same bone through the drill holes. That ulnar fracture was treated conservatively by Mr Maxwell and was slow to unite. During this period and for some considerable time thereafter the claimant continued to be in receipt of weekly compensation. When particulars of the November incident were made known to the Corporation and the appellant, the appellant sought to have the claimant's injury reclassified as no longer being a workplace injury and that the second injury was indeed the cause of his continuing incapacity. By its decision of 21st February 1997 the Corporation did advise the claimant that his weekly compensation had been reassessed at a lower rate. The reason being that his injury had now been classified as a non work injury due to the second injury on 15 November 1995 and that therefore his weekly compensation was only 80% of the earlier compensation he had been receiving which was of course in turn only 80% of his pre-accident wage. The claimant sought a review of that decision and a review hearing took place on the 10th of April 1997. At the review hearing it was the claimant's contention that the fracture of his left forearm was in fact part and parcel of the workplace injury. In that regard Mr Maxwell gave evidence and the kernel of his evidence was that the fracture which did occur would have happened regardless of any trauma as osteolysis had developed from the suture through the drill holes which weakened the bone and made a fracture inevitable. To use Mr Maxwell's exact words "When I went in there was an osteolylic reaction to the bone, there was just a big hole in the bone. He had an unfortunate and unusual reaction to the sutures I used and so that allowed the bone to react badly and form a cyst in the bone so that the area was a fracture waiting to happen. So it's inconsequential that he remembered doing it when he bumped it. When I asked how did this happen he'd tried to think back at how he had done it and he said 'I think I did it when I bumped into a chair.' I mean he could have done it in his sleep. He could have do you know what I mean." It is noted that the Review Officer found as a fact that the claimant had tripped and fell onto the corner of a lounge chair causing the fracture of the ulnar as above described. There may be several issues which have yet to be determined between the Corporation, the claimant and the appellant, but this Court in this appeal is only concerned with a determination of whether the incident of 14 November 1995 was a separate and distinct personal injury by accident, or whether the injury was simply part and parcel of the earlier August 1995 injury. The question of how that fresh injury affected the recovery process of the claimant from his first injury is not something which this Court was provided with sufficient medical evidence, but in any event, it is not a question which this Court is called upon to determine within the context of this appeal. The only decision in respect of which this Court has jurisdiction to consider by way of appeal is whether the November incident constitutes a specific and distinct accident. The relevant definition of "accident" in the Act is: "A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process: and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events." In this case there is no question that a personal injury as that is defined in section 4 of the Act was suffered by the claimant. It cannot be disputed that the fracture of the ulnar is physical injury. The evidence of Mr Maxwell is that the appellant's arm was, because of the adverse reaction to the suture, an accident waiting to happen. In this particular case I consider that colloquialism to be particularly apposite. Whilst it was Mr Maxwell's evidence that it could have happened at any time, even in his sleep, the fact of the matter is that it did occur when his arm sustained an external force being the arm rest of the chair. Having said that I consider that what Mr Maxwell really meant was that any external force at any time could have caused the fracture because of the weakened state that it had become as a result of the adverse reaction and the formation of the cyst. These matters are all explanatory of why the injury occurred from what would have otherwise have been a seemingly harmless bump to the elbow against the chair armrest. For the purposes of the determination of whether an accident occurs it does not matter if the claimant's body is particularly susceptible to a seemingly harmless bump or brush with another object. The facts of this case could be considered a classic example of the application of the egg-shell skull principle, well-recognised and accepted in medico-legal jurisprudence. In the context of this case the appellant's delicate elbow received the application of an external force from which injury resulted. This accident occurred at the claimant's home and therefore in every respect was quite separate and distinct from the workplace accident of 9th August 1995. Because the initial determination of a separate accident was disputed by the appellant and the Review Officer found for the appellant on review, the Corporation has not yet made any decisions consequent upon the November accident being part and parcel of the August accident or indeed entirely separate. Therefore this Court is not concerned with matters which may now arise consequent upon the finding on appeal that the Review Officer was wrong to find that there was not a separate accident. The matter of the ongoing consequences of this Court's finding will need to be the subject of further decisions of the Corporation and this Court simply records that the decision of the Review Officer was wrong and is hereby revoked. In the circumstances the appellant is entitled to costs which are fixed at $800. DATED at WELLINGTON this day of July 1998 M J Beattie District Court Judge GMPJoin.doc KD