Good Health Wanganui Limited v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 300/ 99 IN THE DISTRICT COURT DCA No. 131/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN GOOD HEALTH WANGANUI LIMITED Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Auckland: 7 September 1999 Date of Judgment: 26 October 1999 Counsel: S. Mechen for appellant D. Tui for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE The issue in this appeal is whether or not the Review Authority was correct in declining jurisdiction to enquire into a determination by the respondent allowing Mr Brickell's claim for a gradual process injury. [I:JUDICIAL\Hubblej\Good Health.doc jab] 2. Background: In 1995, Mr Brickell was employed by Good Health Wanganui Limited (GHW) as a general orderly. This job involved him lifting, pushing and pulling trolleys, and other general duties. On 4 December 1995, he reported a shoulder and neck strain injury which had developed over a period of time. He completed a gradual process injury questionnaire on 24 January 1996, and GHW also completed the GP3 questionnaire on 11 March 1996. This questionnaire is in a set form produced by the ACC, and contains questions which seek a yes or no answer. Under the heading "Cause of Injury" is the question "Do you consider the injury to be solely work related" and the "yes" box has been ticked by one K.R. Sandiland who is described as the Health & Safety Coordinator for GHW. Having accepted in the declaration that the injury was work related, GHW then paid the first week of Mr Brickell's wages when he was required to be off work. In a letter dated 14 March 1996, the respondent wrote to Mr Brickell and advised him that a decision has been made to accept his claim, and further advising him of his rights to apply for entitlements and rights of review. Mr Brickell's problem was on-going and he saw a specialist, Dr Shatwell, on 8 July 1996. Dr Shatwell's report records Mr Brickell's complaint that he had experienced a gradual onset of pain at the root of his neck, which developed over a period of fifteen months at work. Dr Shatwell's opinion was that no permanent damage had been incurred, and that he expected the chronic muscular pain to 3. settle down within the fullness of time. The report also mentions a shoulder injury suffered by Mr Brickell two years prior to the work related incident. A horse that he was leading bolted and caused a traction injury, but the pain was not severe and the symptoms soon settled. Up to this point GHW had had no reports concerning the progress of the claim, but on 4 September GHW asked for an investigation into the accident raising the issue whether or not the injury was caused by work related activities, or whether it was merely a recurrence of a previous accident, namely, the incident involving the horse. On 4 September 1996, the respondent through its Experienced Rating officer, wrote a letter to Dr Shatwell putting this question to him. There appears to be no reply from Dr Shatwell on file, and the respondent quite properly appears to have busied itself in trying to gain other useful employment for Mr Brickell. Almost two years later on 31 July 1998, Mr Mccord from Injury Management NZ Limited (IMNZ) acting on behalf of GHW, requested information regarding the claim, and on 15 September 1998 copies of the M46 and GP3 questionnaires were forwarded to Mr Mccord, together with advice that Mr Brickell was seeking employment and hoped to become independent of ACC weekly compensation by 30 November 1998. 4. On 12 October 1998, the respondent again wrote to Mr Mccord in the following terms:- "This letter confirms our previous advice that ACC has accepted the above claim as a work injury. You already have a copy of the M16 claim form and other claim details which confirm the reasons for this and you are aware that Good Health Wanganui has also signified their acceptance by paying the first week compensation. You are entitled to apply for an independent review of this decision within three months from the date of this letter, in accordance with the details contained in the ACC booklet entitled 'Is There a Problem?' which has been sent to you under separate cover." This was the first time a formal decision on the injury had been received in writing by GHW, and on behalf of them IMNZ lodged a review application, and the hearing was set down for 17 February 1999. At the hearing, the review authority declined jurisdiction basing his decision on decided cases. The issue: The short issue is whether or not the Review Officer was correct in declining jurisdiction. In other words in broad outline, the appellant's case is that they were required to be advised of the Corporation's decision in writing (s.67(1)) despite the fact that the injury occurred and the claim was made in May 1995, the appellant was not in fact advised in writing of the decision of the respondent until the letter of 12 October 1998, and accordingly the three months time limit to appeal (s.89(5)(b)) did not begin to run until that letter of 12 October was received. A review was in fact lodged just within this time limit, and accordingly the appellants says jurisdiction should have been exercised. 5. The outline case for the respondent is that the completion of the GP3 form containing an acknowledgement by the appellant that the injury to Mr Brickell was work related, effectively amounted to a waiver of any rights to review. They argue that the Corporation was not required to give written notice of the decision because there was no dispute (s.65(6)). Reliance is placed upon the decisions of Cadbury Confectionery Limited v ACC, M.J. Beattie, 207/98 and Nelson Marlborough Health Services v ACC. The respondent further submits that at most the letter of 12 October 1998 was a confirmation of an existing situation, and not a new decision which could form the basis of a review. The law: The relevant portions of the statutory provisions are as follows:- "65. Acceptance of work injury claims - (1) Except as provided in subsection (3) of this section, a work injury claim may be lodged with the relevant employer or the Corporation. . .. 1) Where any work injury claim is lodged direct with the Corporation, the Corporation shall refer a copy to the employer and request a work injury report within 21 days, unless it is a work injury claim to which subsection (7) of this section applies. . .. (6) Where a work injury claim has been lodged and there is a dispute as to whether or not a work injury has occurred, or the employer refuses to supply a work injury report when so requested, the Corporation shall determine the matter and advise the parties in writing of its decision." It is clear therefore that there is a mandatory obligation on the Corporation to refer the nature of the claim received to the employer, and to request from that employer a "work injury report within 21 days". The "work injury report" is not a 6. prescribed form, but ACC have devised the GP3. As indicated earlier this contains inter alia requests for an answer to "yes" and "no" questions, one of which is "Do you consider the injury to be solely work related' and the person filling out the form has ticked the "yes" column. Section 65(6) makes it clear that if the employer refuses or fails to supply this report, or if there is a dispute as to whether or not a work injury has occurred, then rather than the matter being referred to any third parties, the Corporation is directed to make a determination and advise the parties in writing of their decision. The section itself is silent on what should occur or what further enquiries should take place (if any) when the GP3 form indicates an admission on behalf of the employer that the injury is work related. Section 67 then provides as follows:- "67. Notice of decisions - (1) The Corporation shall, as soon as practicable, give to any person who is entitled to apply for a review under section 89 of this Act notice, in writing, of any decision in respect of which that person could make the application for review. (2) Where any decision of the Corporation referred to in subsection (1) of this section is not wholly in favour of the person, the Corporation shall provide to that person, in writing, the reasons for the decision and general information about the rights of review and appeal available under this Act if that general information has not been provided within the previous 6 months." This is clearly a mandatory requirement that any person who is entitled to apply for a review under s.89 should be advised in writing of "any decision in respect of which that person could make an application for a review". 7 . Subsection (2) makes it clear that if the decision made by the Corporation does not meet the expectation of either the claimant or the employer in every respect, then there is an additional obligation not only to advise the person entitled to apply for a review of the decision itself, but also to provide reasons for it and give general information as to rights of review and appeal if such general information has not already been given within the previous six months of the decision. The essential question raised in the present case is whether the appellant's acknowledgement in the GP3 questionnaire that the "injury was solely work related" meant that no further decision was necessary by the Corporation. Even if a decision was necessary, the issue is raised by the Corporation (presumably based on waiver or estoppel) as to whether the appellant was "a person who is entitled to apply for a review under s.89". In other words if the employer admits the claim, they have waived any right of review. If a decision was in fact necessary by the Corporation, and if the appellant has not waived any rights of review under s.89 by its admission, then by reason of s.67(1) they would be entitled to notice in writing and time would not run until three months had expired after the date that such notice in writing was given. Was a "decision" necessary?: In the case of Cadbury Confectionery Limited v ACC, 207/98 a claimant, P, lodged a gradual process injury claim with the Corporation in November 1992. A GP3 was completed by an occupational health nurse on behalf of the employer accepting that the injury was a work injury. The Corporation subsequently granted 8. cover for the injury. No notice in writing of any decision made by the Corporation was sent to the appellant. "However, much later when assessing premiums against the employer, the Corporation sent an Experienced Rating Regulation schedule (ERA) which included P's name on the schedule. The employer sought a review of the ERA under s. 16 of the Experienced Rating Regulations. His Honour Judge Beattie held that the ERA was not a decision against which a review could be lodged under s.89 of the Act, nor could letters declining the employer's applications amount to individual decisions which were appealable. One of these letters indicated that the employer's admission; that it was a work related injury in the GP3, ruled out the possibility of appeal. It was against this decision that an appeal was lodged. His Honour Judge Beattie effectively held that there was no requirement to issue a decision because of the employer's original admission. His Honour then said:- "Section 65 of the Act gives an employer certain rights and safe guards in relation to work injury claims lodged by employees. Subsection 6 requires that where there is a dispute as to whether or not a work injury has occurred, that matter shall be determined by the Corporation and a decision in writing given. Such a decision is specifically identified as a decision giving rise to a right of review in section 89(2) of the Act. The evidence in this case makes it clear that no such decision was ever made in terms of section 65(6) as the appellant accepted that Ms Pool's injury was a work injury. There was therefore, no substantive issue to be determined and thereafter the fact of it being a work injury was thereupon administered by the Corporation in accordance with the Act and in accordance with regulations which affected the employer as to payment of premium and its accident Experience Rating. I find that it is quite clear that once three months have elapsed since the acceptance of a claim by the employer as being a work injury, its rights to contest that fact are extinguished. From the foregoing I find as a fact that the Appellant was seeking to either revisit the prime decision of having Ms Pool's claim been classified as a work injury or seeking to contest its continuance as such in the year subsequent to the year in which that claim was first made. ... 9. Having found those facts I rule that the appellant cannot seek by such review to revisit the fact that the Corporation determine that Ms Pool's injury was a work injury and thereafter treated it as such. There are two reasons firstly, as I have previously noted no such decision was required because of the acceptance of the fact by the appellant. However, even if there could be regarded as being some form of notional decision by reason of that acceptance, the application for review of that decision was made considerably more than three months after that decision would be deemed to have been made and therefore any right of review is extinguished." The effect of the above decision is that if an employer ticks the GP3 question "Do you consider the injury to be solely work related" "yes" and then adopts the usual custom of paying the first week's wages whilst the employee is off work, it thereby looses all rights of review. One other possible interpretation is that the employer by its actions immediately creates a "notional decision" made by the Corporation, and time begins to run from the date of that "notional decision" Presumably this is on the basis that written notice is deemed to be given by the admission in the GP3. The Cadbury decision was followed in the Nelson Marlborough Health Services (Appelman decision) 24/99 by His Honour Judge Middleton who said:- "Mr Cadenhead's principal submission was that in this case, by its letter of 8 January 1997, the respondent had issued a decision which was reviewable The position is unusual in that by virtue of section 65 the work injury report had been completed by the appellant in which it accepted that a work injury had occurred. That is quite clearly stated in the report completed by the appellant. Moreover, the respondent accepted that report and reimbursed the Appellant for the weekly earnings it paid to Appelman until such time as he retired from his position. The query that Appelman had not suffered a work injury only arose after the issue of attribution of costs was raised long after the claim had been accepted as a work injury and certainly well after the three month period in which an application for review is required to be made. Furthermore, the respondent had carried out its obligations under section 65(4) and had received the appropriate report from the appellant within the time required. As provided by section 65(6) no dispute arose as to the nature of the injury because the appellant accepted it as a work injury and it was therefore not necessary for the respondent to issue any further written decision. 10. I respectfully adopt the findings of Judge Beattie in the Cadbury case. I consider that the appellant is now endeavouring to revisit the determination of Appelman's injury outside the time limits imposed by the Act and Regulations. There was no need for the letter of 8 January 1997 to have been issued as the determination was made by the appellant itself in completing the work injury form. It accordingly follows that the decision of the Review Officer must be revoked as she did not have jurisdiction to review the purported decision of either 9 December 1996 or 8 January 1997. It further follows that the second issue relating to attribution of costs could not be the subject of a review and the Review Officer's decision on that issue must also be revoked. [Our Emphasis Added]" Judge Middleton spells out the effect of the Cadbury case by concluding:- "There was no need for the letter of 8 January 1997 to have been issued as the determination was made by the appellant itself in completing the work injury form." Decision: If for the sake of argument we were examining the situation at the time the appellant filed its GP3 in March 1996, it is established law that the Corporation must accept the burden of enquiring into and thoroughly investigating any claim allegedly resulting from work injury before disbursitis monies. This has been generally accepted in a number of decisions, but in particular South Pacific Tyres Limited (5/98), Click Clack International (61/95) and Naylor Love v ACC. Because of the foregoing, I have difficulties with the conclusion reached in Cadbury and Nelson Marlborough Health Services to the effect that:- "(1) The determination was made by the appellant itself in completing the work injury form. (2) That no 'decision' is necessary if the employer admits the injury is work related and (3) That a 'notional decision' may arise." 11. The reality is that the work injury form is nothing more than a basic source of information essential to permit the Corporation to carry out its proper enquiries. There is no direction on the form as to who should fill it out. It may be filled out by some junior clerk relying upon hearsay information, or by a person friendly with or unduly influenced by the claimant himself/herself. Miss Mechen in the present case makes the further point that the employer clearly did not know about prior injuries to Mr Brickell. They were not therefore in a position to make a fully informed decision. Furthermore, it would be surprising indeed if a decision on whether or not for example a claimed fibromyalgia or epicondylitis as a work related injury, was left to any person qualified or unqualified who happens to fill out the GP3 form. In many cases of course the injury and its cause is obvious but, gradual process injuries and the cause of them are not matters which a medically unqualified business person can give opinions on. In my judgment, the decision whether or not a claim is a proper one cannot be abdicated by the Corporation to the employer. The employer's views would obviously be taken into account, but that ought not to obviate the necessity for proper enquiry and a decision made resulting from those enquiries. I would therefore have no argument with the frequently followed definition of "decision" referred to in both Hull (249/97) and Taylor (212/98) to the following effect:- 12. "If those meanings of the word decision are applied in the context of s.89 I find it clear that it is only the decisions which (1) Are the act of deciding the claimant's claim or entitlement; (2) Are the manifestation of the process of the conclusion that has been reached upon a particular claim or entitlement, (3) Conclude the consideration process and state the result; or (4) Identify the defining moment on any issue pertaining to a claim for an entitlement that are intended and meant by that word." In my judgment, it would not be a proper discharge of the Corporation's primary obligation to consider, enquire into and determine the claims, to regard their obligations as discharged by reference to a view expressed by the employer in the GP3 questionnaire. It should not therefor be inferred from s.65(6) that no "decision" is necessary by the Corporation if the employer admits the injury is work related. In my judgment, s.65(6) is an essential provision outlining what must occur if an employer defaults in providing information (the GP3) or disputes the work injury. In that event s.65(6) reserves the initial decision making process to the Corporation itself. It does not by inference or implication absolve the Corporation from making a decision simply because the person who completes the GP3 form (whoever that may be) expresses a personal view that the injury is work related. In my judgment therefore the Corporation is obliged to make a decision after proper enquiry which will include the employer's own views. It follows from the foregoing that if the appellant is a "person who is entitled to apply for review of that decision under s.89, then they are also entitled to notice in writing of the decision (s.67(1) and by s.89(5)(b) they are entitled to three months 13. "after the date on which notice in writing has been given of the decision in respect of which the review is sought" in which to file their appeal. Has the appellant lost the right to apply for review under s.89 because of the concession made in the GP3 questionnaire?: Section 89 (where relevant) provides:- "89(2) Any employer who is dissatisfied with a decision of the Corporation under s.65 or s. 107 of this Act may apply to the Corporation for review of that decision." "89(5)(b) In any other case, an application in the prescribed from may be made 'within three months after the date on which notice in writing has been given of the decision in respect of which the review is sought." A decision by the Corporation to accept the claim can have ramifications for an employer which run into tens of thousands of dollars in costs and premiums. It is fundamental that they should have an opportunity to be heard once fully informed of all relevant considerations. Perhaps the argument can be raised that the appellant in this case cannot be a person who was "dissatisfied" with the decision of the Corporation, because of their acknowledgement in the GP3 questionnaire. There are two reasons why, in my judgment, this cannot be so: first, a decision must first be made before an employer can decide whether they are dissatisfied with it or not. Despite the concession in the GP3 questionnaire, there may be a number of aspects of the decision which are the subject of disagreement. For example, when medical reports are completed, finding that the "injury" was not caused by the employment, or discovering that an unknown past history is the real cause. Secondly, if I am 14. right in concluding that there is no statutory provision releasing the Corporation from making a decision merely because a concession is made in the GP3 form, then the appellant's right to be heard could only be lost on the basis of waiver or estoppel. For there to be a waiver or estoppel the concession would have to be - (a) Clear and unequivocal; (b) Made with the established authority of the person affected; and (c) Made with the full knowledge of all relevant facts. The completion of the GP3 questionnaire does not necessarily satisfy any of these requirements. It contains no acknowledgement of authority, no warning of possible consequences of answering certain questions (notably that an answer to the question "Do you consider the injury is solely work related" would have the result that the claim was immediately accepted, and all rights of review lost. The form is nothing more than a purported discharge of the statutory obligation placed on the Corporation to collect information so that an informed decision can be made. It does not require any proper enquiry into work place conditions, the prior history or any medical reports on the alleged injury suffered. In the present case therefor the appellant was entitled to written notice of the decision and it was entitled to three months from that notice to lodge its appeal. The letter of 12 October 1998 is the first notification in writing to the employer as required by s.67(1). The rights of review did not begin to run until three months following that written notification. 15. I have not overlooked the arguments raised in Hull and Taylor which in my judgment were plainly on a different footing, and in a true sense it could be said that the later notifications by letter were nothing more than a confirmation of earlier written notifications which had been given. This is not the case in the present appeal. In the circumstances, the decision of the Review Officer must be set aside and the matter referred back for enquiry on the substantive issues. I invite counsel to file memoranda as to costs. (G.V Hubble) District Court Judge