Jones v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 46 198 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 KEVIN WAYNE JONES DCA 278/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of March 1998 APPEARANCES: Miss F Taylor appellant Miss C Taylor for respondent No appearance by Rufflette NZ Ltd the employer DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant did suffer a gradual process injury within the meaning of section 7 of the Act in the course of his employment with Rufflette NZ Ltd. 2 For the purposes of this appeal the Court received written submissions on behalf of the appellant, the Corporation and the employer Rufflette NZ Ltd. However the latter did not appear at the hearing of the appeal. At the time I heard the submissions of the appellant and the respondent I had not had the opportunity of reading the Corporation's file in relation to this particular claim but now that I have done so I find that this is a matter which should be referred back to the Review Officer pursuant to C 12 of the Appeals Regulations. My reasons for doing so are that this particular claim has had a somewhat unusual course down to the appeal hearing. At the end of the day it is the respondent's position that whilst the appellant may be able to satisfy the criteria of section 7(1)(a) and (b) of the Act, there is no evidence to establish the affirmative answer needed for section 7(1)(c) and therefore the claim must fail. After considering the submissions and looking at the medical evidence that has been adduced in this case, I find I would have to agree with that submission. However, were I to do so and simply dismiss the appeal it would be doing less than justice to this appellant in the particular circumstances. The fact of the matter is that this appellant made a claim for extensive tendon strain to his right wrist caused by assembling curtain rail tracks repetitively in the course of his employment with Rufflette NZ Ltd. Medical evidence was adduced which supported the fact of that wrist strain and on the basis of it the Corporation accepted the claim and granted cover. Gradual process questionnaires were sent to the appellant's GP, his employer and to the appellant himself. These questionnaires were duly completed and returned and it would seem that the matter was then referred to the branch medical advisor for comment. That questionnaire required answers to questions which were in effect answers to the three categories of section 7(1)(a)(b) and (c). The relevant question was "Is the risk of suffering the condition significantly greater for people performing this work activity (or working in this environment) than for people who don't." The answer written by the medical adviser was "possibly." 3 The matter then seems to have proceeded to an assessment and a check list was then prepared and on that check list the same question as above was answered "yes". At the foot of this document the team leader Stephen Goldsbury has completed the section as supervisor indicating that cover should be accepted. Thereupon by letter of 6 November 1996 the appellant was advised that his claim had been accepted and the employer was advised similarly. It was as a consequence of this decision that Rufflette NZ Ltd sought a review. At the review hearing which took place on the 19th of June 1997 representatives of the employer only appeared. The Corporation was not represented and the appellant himself did not appear although he had written a letter in reply to statements made by the employer which had been referred to him by the Corporation. On the basis of the evidence heard by the Review Officer he determined that the appellant had not satisfied the criteria under section 7(1)(b) or (c) and therefore the Corporation's decision to accept a gradual process claim of the appellant was revoked. When the matter came before me it was the Corporation's position that the Review Officer's decision should be upheld as there was no evidence of an expert nature which established that the criteria necessary for section 7(1)(c) could be answered in the affirmative. Counsel referred to the decision of Judge Middleton in Hensley (Decision 82/97) where his Honour held that in order to satisfy the requirements of section 7(1)(c) there needs to be some supporting expert opinion. He stated that it would be as mistake to simply make the assumption that because the injury was caused by the employment and because the employment involved repetitive activity it must be that the employment posed a significantly greater risk. In the present appeal there is no evidence, expert or otherwise, and one would certainly have expected there to have been some evidence before the Corporation came to the decision to accept the claim. On my reading of the file I find no such evidence other than the fact of section 7(1)(c) being satisfied by virtue of the answer in the affirmative on the check list. I consider that appeals to this Court under the Accident Rehabilitation and Compensation Insurance Act are not to be totally adversarial and I consider that Regulation 16 of the Appeals Regulations is a significant indicator that such is not intended to be the case. In the present case we have an appellant who was a successful claimant and who successfully passed the screening test set up by the Corporation before his claim was accepted. In those circumstances I find that it would be wrong to now hold that because he has not himself taken the step of adducing expert evidence that he should be penalised. I take this view particularly as the Corporation did not see fit to be represented at the review hearing and so the Review Officer did not have the benefit of any submission regarding section 7(1)(c) from the Corporation. I note that the Corporation did receive expert medical opinion on the appellant's injury from Mr R J Kyd, orthopaedic surgeon, and it was from his report that the Corporation determined that the appellant's employment task did have the property or characteristic which caused the injury. I consider it would have been well within the Review Officer's function to have sought an opinion from Mr Kyd on the question of section 7(1)(c) before delivering his decision. That he did not do so is to be regretted. However I now seek to remedy that oversight. Accordingly, pursuant to Regulation 16 of the Appeals Regulations I direct that this appeal be referred back to the Review Officer for the specific purpose of ascertaining by means of such expert evidence as he may consider necessary to determine the issue one way or the other, whether or not the risk of suffering the personal injury so suffered by the appellant is significantly greater for persons performing the appellant's employment task in that environment than for persons who do not perform that task in that environment. DATED at WELLINGTON this 20 day of March 1998 M J Beattie District Court Judge Direbeat.doc KD