Reece v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. /49/95 AT WELLINGTON DCA No. 160/95 UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND 45/ 95 / 02 97. IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN K. REECE APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: : 19 October 1995 Date of Decision: 2 1 December 1995 C.A. Wilson as advocate for the appellant J.W. Saxton as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE It appears that the appellant's claim relating to weekly compensation should be calculated on the basis that there were two accidents and the Corporation should re-assess his entitlement on that basis. Issues: The issues in this appeal are:- 2. (a) Was there one accident or were there two accidents; (b) The appellant's entitlement to weekly compensation in particular with reference to s. 40(2) (b) of the Act. At the completion of counsel's submissions I indicated I would give a preliminary decision referring back to the Corporation the question first of whether there were two accidents, and if there were, the second question of what compensation is payable. However, I have decided to review the evidence relating to the accident or accidents because that may assist the Corporation. It may also assist if I record that my preliminary view is that what occurred on 24 January 1994 can be regarded as a separate accident within the meaning of ss. 2 and 8. Introduction: On 8 December 1994, the appellant was working as a carpenter. He fell when climbing on a desk and injured his wrist and lower ribs. An M46 claim form for cover and treatment expenses dated 9 December 1994 was lodged with the Corporation on 12 December 1994. The medical certificate in that form certified that the appellant was unable to resume any duties at work from 9 December 1994 for one day. There is on the file a second M46 claim form for cover and treatment expenses dated 26 January 1995. In the section headed "COMPLETE THIS SECTION ONLY IF THIS IS YOUR FIRST CLAIM FOR THIS INJURY" in answer to the question "How was your injury caused?" it is recorded:- "R. ribs fractured on 8/12/94 had begun to heal but have opened up again and are very painful." 3. In the same section the date of injury is given as 8/12/94, the name of the doctor from whom the appellant first sought treatment is given as Dr R.N. Stirling, and the date of the first visit is given as 9/12/94. This claim form tends to bring two accidents together, but that does not mean there was only one accident. In the medical certificate on the form the doctor described the injury as "fracture r. ribs" and he stated that the appellant would be unable to resume any duties at work from 24 January 1995 for 21 days. The appellant applied for entitlement to loss of wages. He had been unemployed up to September 1994 when he obtained work with Lucas Commercial Interiors, his employer at the time of the accident. A certificate from Lucas Commercial Interiors stated that at the time of the accident the appellant was off work on compensation on both Friday 9 December 1994 and Monday 12 December 1994, and that he was paid six days sick leave for 9 and 12 December and 24 to 27 January 1995. The total sick leave paid amounted to $648 gross. The Corporation calculated the assessment of weekly compensation pursuant to s.40(2)(b) on the basis that there was only one accident. It determined that the appellant's first date of incapacity was 9 December 1994, as he was declared unfit to work for one day and did in fact take time off work. By the time the appellant's next period of incapacity commenced on 24 January 1995, the short term period under the Act had passed, and therefore compensation was assessed and paid at the long term rate. 4. Because he had been unemployed until September 1994, the average weekly earnings figure calculated under s.40(2)(b) amounted to only $210.14. This was increased to $250.60 being the minimum weekly earnings figure for a period of incapacity after the fifth week. As to the period before 31 January 1995 when the appellant received payment for six sick leave days the Corporation applied the abated earnings calculation resulting in nil weekly compensation paid for the period 24 to 30 January 1995. After correspondence with Ms Wilson the Corporation advised her by letter dated 28 March 1995 that compensation was assessed and paid at the long term rate. By application dated 29 March 1995, the appellant sought review of the decision stating:- "Give date on which the original claim was made or last requested material supplied: 26/1/95. The reasons for my application are as follows:- The Corporation's decision is incorrect in taking the 9.12.94 as the first date of incapacity. For the purpose of calculating weekly compensation the relevant date of incapacity was 24. 1.95. The Corporation has taken a very narrow view of s.40 which is not in accordance with the objective of the Act. Such narrow interpretation is also contrary to s.5(j) of the Acts Interpretation Act 1924. I seek the following result as a consequence of this review application: reassessment of weekly compensation pursuant to s.40 taking date of incapacity as 24. 1.95." 5 . The review was heard on 28 June 1995. Mr and Mrs Reece and Ms Wilson attended the hearing. In his decision dated 6 July 1995, the officer says in part:- "The date of accident is given as 8 December 1994. Mr Reece first sought treatment in respect of that injury on 9 December 1994 and was subsequently certified unfit for work for one day. He returned to work on 13 December. On 26 January 1995, the claimant was again seen by his GP who certified him unfit for work for 21 days from 24 January 1995 as the original injury to the claimant's ribs had been exacerbated through some lifting at work." In his decision the officer reviewed the information relating to the calculation of weekly compensation, and referred to s.40 and s.38. In respect of the calculation of compensation he said that on the available evidence, he believed the Corporation's approach was correct and confirmed its decision. The appellant appealed against that decision by notice of appeal dated 1 1 July 1995. In the notice of appeal he stated that s. 40 had been interpreted restrictively and s.47 had been misapplied, and sought calculation of weekly compensation in accordance with the short term formula in s. 40(2) (a). Appellant's Written Submissions in Support of Appeal: Ms Wilson filed written submissions dated 20 September 1995 in support of the appeal. She stated the issues as follows:- "1.1 THE Respondent's decision to consider the Appellant's total period of incapacity as related to one accident whereas there is 6. sufficient evidence to warrant the conclusion that the Appellant suffered two distinct accidents. 1.2 THE Respondent's interpretation of section 40 of the Accident Rehabilitation & Compensation Insurance Act 1992 (the "Act") and its resulting decision to determine the Appellant's period of incapacity as being continuous from the first date of incapacity for the first injury being the 9 December 1994 for the purposes of calculating his entitlement to weekly compensation. 1.3 THE Respondent's decision to abate the Appellant's compensation for loss of earnings pursuant to section 47 of the Act because he had been paid by his employer for six days of his incapacity." She set out the background to the appeal and ss.38, 40, 43(1), and 47(1) and (2). She submitted that there were two separate accidents stating:- "4.1 THE Appellant's incapacity for the period from the 24 January 1995 to 26 February 1995 can be seen to be the result of a separate accident although it affected the same part of the body which had already been weakened by the accident of 9 December 1994. That injury was caused by a fall whereas the subsequent injury was caused by lifting heavy material. The fact that the Appellant's ribs had been injured previously is not a barrier to the second injury being deemed to be personal injury by accident also." She referred to the decision in Cox v ACC, 26 August 1988, Appeal Authority 187/88, and Mccarthy v Union Steamship Co of NZ Ltd [1916] NZLR 1154. She referred to evidence that the appellant gave at the review hearing that the second injury occurred after he had been lifting heavy gib board, and referred to the finding of the Review Officer in relation to that second injury. She submitted:- 7. "The Review Officer failed to identify two separate accidents. He deemed the periods of incapacity as being related to one personal injury by accident and affirmed the Respondent's decision to take the first date of incapacity as 9 December 1994. It is submitted that the Appellant's period of incapacity from the 24 January was the result of a separate and distinct injury. The specific event causing the accident was the lifting of the heavy gib' board in the course of employment whereas the specific event causing the first injury was a fall from a desk. The Respondent was, therefore, bound to assess the Appellant's entitlement to compensation in accordance with section 40(2) (a) of the Act (the 'short-term compensation'). Consequently the Appellant was entitled to compensation based on his average weekly earnings for the 4 weeks prior to 24 January. As the Appellant's injury was a work injury the Appellant's employer was liable for the first week of compensation in accordance with section 38(5) (a) of the Act." Ms Wilson then made further alternative submissions on the basis that the Corporation's decision to assess the appellant's entire period of incapacity as attributable to only one injury, was correct but it is not necessary for me to set out those submissions in this decision. Hearing of Appeal: At the hearing of the appeal on 19 October, Ms Wilson advised that the appellant abandoned his argument that there were two accidents. However, after further discussion the issue of whether there were two accidents remained. Evidence was given by Mr Reece relating to the circumstances in which he was injured. In summary Mr Reece said in evidence that when he went back to work before the Christmas holidays he did only light duties. His ribs were sore but he was able to cope. When he went back to work after the Christmas holidays, he 8. resumed his normal duties which included lifting gib. board. In the afternoon he started to get pain around the ribs. After a few more lifts he could not work any more. The pain was unbearable. After work he sought medical advice. His doctor came to the conclusion that his ribs must be fractured. Mr Reece believed that the lifting of the gib. board had opened up his ribs again. The doctor certified him as unfit for work for 21 days. Ms Wilson also presented a photocopy of the relevant part of the doctor's file relating to the appellant. An entry dated 9/12/94 reads:- "ACC. Fell on to desk > ... ribs bruised. L wrist flexor tendon strained." The entry for 24 January 1995 reads:- "L ribs painful and tender after lifting heavy gib ... " The entry for 26 January 1995 reads:- "Severe pain with fracture of ribs." In her submissions Ms Saxton set out the background to the appeal, referred to the definition of incapacity in s.3, and the medical certificates, and made submissions on the basis that there had been only one accident. It is not necessary for me to set out those submissions in this decision. In connection with the submission that there were two separate accidents she said:- 9. "4.1 Counsel for the appellant has alleged in her written submissions that the January incapacity can be treated as stemming from a separate identifiable accident, rather than just being an exacerbation of the original accident. The Corporation's decision at issue relates to weekly compensation payable as a result of the December accident, that is the only accident that has been accepted for cover, and that is the accident in issue in this appeal. Neither the Corporation nor the Review Officer considered allegations that there was a separate accident. It was accepted before the Review Officer that there had been just the one accident in December. Also, the notice of appeal fails to raise this point. It is submitted that the District Court has no jurisdiction to consider this issue. 4.2 Regardless of the jurisdiction point above, it is submitted that the facts show that there was only one personal injury by accident in the appellant's case, that being the December 1994 injury. The M46 certificate lodged by the appellant in respect of the incapacity from 25 January 1995 states that the date of personal injury by accident was 8 December 1994, and the 1995 incapacity resulted from an exacerbating of the December 1994 injury. 4.3 Counsel for the appellant's submissions state at paragraph 2.3 that the appellant was only engaged in light duties over the Christmas period when he was working. It was after a heavy day of work that he exacerbated his injury. The evidence that the appellant re-injured himself the first time he had to do heavy duties (which were part of his job) supports the submission that the subsequent incapacity of the appellant must have resulted from the original accident. Also the appellant stated at the review hearing that there was only one accident (refer transcript page 4). It is submitted that the appellant's argument that the January exacerbation can be treated as a separate accident cannot be accepted on the facts." In connection with the abatement issue Ms Saxton said this had been considered by the Review Officer, but had not been appealed against. She submitted that the decision of the Review Officer on the abatement issue is not a part of the decision of the Review Officer appealed against and as such the Court does not have jurisdiction to consider that decision - s.91(8) of the Act. 10. As I said when I set out the issues at the beginning of this decision, my view at this stage is that there were two accidents and that compensation should be assessed on that basis. Section 3 provides that, unless the context otherwise requires:- "Accident' means - (a) A specific event or series of events that involves the application of 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." I consider that on 24 January 1995:- 1. There was a specific event or series of events that involved the application of force external to Mr Reece's body, that is the strain of lifting gib. board, and that 2. That application of force resulted in personal injury, that is the fractured ribs that had begun to heal opened up again. Further Matters: At the hearing of the appeal I said that after I had referred back to the Corporation the question of whether there were two accidents, I would give a decision on what Mr Reece's entitlement to compensation was on the basis that he had only one accident, i.e. on 8 December 1994. However, at this stage it 11. appears that that would be only an academic exercise, so I will simply reserve leave for either party to bring this appeal on for hearing if need be. (J.W. Imrie) District Court Judge