Kiwi Packaging Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 272 / 47 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KIWI PACKAGING LIMITED of Lower Hutt Appellant (Appeal No. DCA 68/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of November 1997 APPEARANCES V K Stringleman for appellant S J Simms for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant's employee, J O'Hare (the worker), suffered personal injury arising out of and in the course of his employment. . The worker lodged a claim with the respondent which is dated 8 July 1996 in which ' he stated that he had suffered "back pain from lifting repeatedly pails of 20 kg (sometimes 40 kg) at work". The date of injury is shown simply as 6/96 and his visit to Dr 2 Hingston was on + June 1996. On his application for entitlement the appellant provided a statement in which he said: "On Friday afternoon, 31 May I felt a slight twinge in my back while lifting cartons of ink. I didn't think it was anything to worry about, and carried on working. I certainly didn't believe it was worth reporting, therefore no "accident" was recorded. During the course of the evening my back started to ache. By Saturday afternoon the ache had increased sufficiently for me to go to bed where I stayed till Tuesday morning (end of Queens Birthday weekend) when I went to see Dr Hingston. On returning home I rang John given at work to advise him that I would be off work due to the fact that I had severe back pain. At that stage I could not recall having had an accident as such, and could not offer any explanation for my condition. Having used up all my sick leave entitlement and now using my annual leave he (John Gibson) advised me that I needed to apply for ACC." In the gradual process questionnaire which the worker was required to complete, he stated in answer to the question "What are the activities that you do away from work that could have contributed to your condition?": "Gardening? Have assisted in furniture relocation twice earlier this year, but mainly driving truck, no heavy lifting". In answer to the question "Have you suffered from a similar condition in the past?": "Yes" and the explanation "5 or 6 years ago slight backache" which he attributed to the fact that he might have done it while digging in the garden. The employer was requested to complete a questionnaire form and has stated that the worker did not report that he had suffered any injury and that on 31 May 1996 when Mr Gibson , its manager, saw him leaving the premises and he did not appear to have any back problems. The employer's comments in the questionnaire were: "The claimant is not required to perform heavy lifting as part of his employment and knows that 'any' lifting requires the use of a back support belt, which he does not have. Failure not to use such safety equipment is negligence on his behalf. We maintain the injury occurred over the Queens Birthday W/E period at his home. Early discussions with him support this, that is why he has been on sick leave rather than of ACC to date (8 weeks). His 'story' has altered during the period to suggest that it is a workplace accident, we contest at the suggestion of his physician. We further know that the claimant attended a children's birthday on the Saturday (1/6) at which he used a back stretching exercise machine owned by his daughter. We contest that this is the source of the 'alleged' injury. We would be happy to discuss this further and in no way believe it to be a workplace injury." . The job description is that of a printing department supervisor in which he arranges for delivery of ink which comes in 2 - 10 kilograms which he allocates to jobs by placing them on a shelf. It is said that heavy lifting does not come into his duties. 3 The appellant's doctor, Dr D Hingston, provided a report to the respondent dated 3 September 1996 in which he stated: "To answer your queries as you have presented these: 1) Lumbar prolapsed intervertebral disc left side. Prognosis has proven to be satisfactory with a slow but steady convalescence. However it may recur. (2) Repeated lifting of heavy pails (20 kg) at work appears to be the cause of the backpain. Time off work followed by light duties has shown a slow but steady convalescence. 3) Treatment consisted of physio and rest. Response as above. John is currently trialling normal duties at work again. (4) No other possible aetiologic factors were identified. (5) John has had 'probable lumbar disc lesion' recorded in his notes by a previous doctor. 1991 an episode of back pain is noted, similar to the current injury. John notes recurrent back pains in last 7 years however not to the degree of the current illness. (6) No. Has significant asthma with relatively frequent steroid useage (sic). (7) Asthma medication - Ventolin, Becloforte and SOS prednisone, Nasal Atrovent and steroid inhalers, Claratyne. 8) X-rays copies attached as requested. Neither specialist opinion or workplace assessment has been sought. (9) The ACC M46 claim was delayed in submission to ACC as initially there were no events recalled to explain causation. A medical explanation was therefore sought. No evidence of neoplastic pathology was found and the only possible explanation was repeated lifting at work as causation. (10) The alternations you refer to on the M46 are several. The 31-5-96 as date of injury was not done by myself, rather I entered it as '6-96'. 31-5-96 however remains consistent with the date of injury. The date of first visit was definitely corrected by myself, as John had not understood the correct answer. I can provide a carbon copy from my file if desired, however I cannot imagine in the circumstances if this would be of use to you. The times are consistent with what I'd envisioned." . On 19 August 1996 the respondent advised the appellant that his injury was accepted as a work injury and on 5 September 1996 the appellant was advised that the worker had suffered a work injury which arose out of and in the course of his employment. The appellant applied for a review of that decision. On 26 September 1996 the 4 respondent notified the appellant that it had reconsidered its decision and accepted that the worker's injury was a work injury under s.6 of the Act and not under s.7. The appellant applied for a review of that decision. After hearing from the worker and submissions on behalf of the appellant the review officer concluded that he should uphold the respondent's primary decision. However, in doing so he altered the respondent's decision to attribute all the costs of the worker's claim to the appellant and found that on the evidence there were two incidents which could have been the cause of the injury, being either the lifting at work or an incident with an exercise machine during the following weekend. He decided that the cost should be attributable only as to 50% against the appellant. Ms Stringleman submitted: 1. That Dr Hingston's finding that the cause of the problem was the repeated lifting of heavy pails at work was not consistent with the finding of the review officer that the cause of the injury was one distinct incident. 2. That the worker was absent from work for a period of 5 weeks until he lodged his claim with the respondent and no notification was given by him to his employer. That so far as the appellant was concerned it was understood that the worker was ill. 3. That Dr Hingston's explanation of the delay in notifying the worker's claim to the Corporation was because "initially there were no events recalled to explain causation" and that "the only possible explanation was repeated lifting at work as causation". 4. That there is insufficient evidence to support acceptance of the worker's claim either as a work injury as defined in s.6 or as a gradual process injury in terms of s.7. That this is supported by Dr Hingston's opinion that he suffered a prolapsed intervertebral disc on the left side caused by repeated lifting of heavy pails which Dr Hingston considered was "the only possible explanation". 5. That there is evidence from the appellant's daughter that he suffered some sort of an incident after trying the exercise machine during the weekend immediately following the claimed incident at work after which he was bent over and unable to straighten up. Ms Simms submitted: 1. That the worker's injury was caused by the was caused by the event of lifting a pail of ink on 31 May 1996. That he first felt the pain of that day when he said that "on Friday afternoon, 31 May I felt a slight twinge in my back while lifting cartons of ink". 5 2. That it is more probable than not that that was the specific event which caused the injury rather than by gradual process prior to that date. 3. That the injury was caused at work and during the course of his employment. Some matters raised by the worker cause me concern. Although he stated that he felt the twinge on the Friday and that on the following Tuesday he visited his doctor because of the alleged back pain, he could not recall what had caused it. This seems to be an extraordinary claim because the worker says that he felt the twinge at work on the Friday, and during the weekend he had the episode with the exercise machine after which he could not straighten his back and on the following Tuesday could not tell Dr Hingston of anything which could have precipitated the problem. It seems to me that only after the doctor had discussed the matter with him and after he had been advised by the appellant to lodge a claim with ACC that he advocated the story that the work with the ink pails had caused the problem. It is interesting to note from the claimant's evidence before the review officer his statement that: "I told you that when I went to the doctor the doctor says what have you done to yourself, and I says nothing. He says you must have done something to cause this, he said you have got an injury to your back. You must have done something. I said well I don't recall anything. And he just looked at me as if well I don't understand it. You have obviously done something. So anyway he says I'll sent (sic) you for x-rays and see what is wrong and he sent me for physiotherapy and the physiotherapist said did they ask me what I had done, and I says nothing. And she said well you have done something to yourself to cause this, you have got a back injury and you must have done something. And I said well I don't recall doing anything. And that is what started me thinking, what are all the things that I do that may have caused this. And that is when I remembered about that lifting these cartons off the floor I got a little bit of a twinge, that really its nothing, like I said its like knocking your finger against something, but nothing and you carry on working. And that is exactly what happened on the Friday. I didn't believe that I had done anything serious to myself and that is why I didn't report anything because it was it was a nothing incident as far as I was concerned and there was nothing to report. And hence the reasons why I didn't remember having an accident. But Dr Hingston never ever suggested that I put anything down as a work related accident. I (sic) was me that said to him and the physiotherapist, what I had done, and what I felt, and they both said that was the cause. Sorry to (inaudible) that is what I recall." This evidence contrasts with the statement dated 10 June 1997 which is headed ' Statements in support of my back injury claim to ARCIC". Under the heading of "background" he noted: "When describing what happened prior to feeling discomfort, Dr Hingston was flicking through previous notes of what I had discussed re; duties at work - moving pails and cartons of ink. I had told Dr Hingston that on the said date I had actually felt a twinge in my back while lifting a carton of ink." I find it difficult to understand that statement in the light of the statement by Dr Hingston to the respondent that the worker did not recall any incident which could have caused his problem. Another matter in the statement is at paragraph 2.4 in which the appellant says: "At no stage did I lead my employer to believe that I was ill. I had said from the beginning that I had a sore back and that I wouldn't be at work". Mr Gibson claimed that at no time did the worker claim to have a sore back, but only that he was ill. He then remained on sick leave until he returned to work in July, after which he lodged his claim for cover with the appellant. I find it difficult to accept that a few days after the alleged incident at work which the appellant thought necessitated his taking sick leave he was unable to provide his doctor with a description of what had happened. In the intervening period there is the statement by the daughter that he had used the exercise machine but she thought that prior to doing so he had appeared to have some discomfort in his back. In a report submitted for the purposes of the appeal Mr Palmer, an orthopaedic surgeon, reported to Dr Hingston: "I think he has an injury to a lumbar disc, probably the lumbosacral, I have reassured him that I expect it should settle and provided he can look after it for long enough probably permanently." However, Dr Palmer had to rely on the history given by the appellant so cannot take the question of causation further. I have some difficulty with the finding of the review officer that on the balance of probabilities the incident at work was the cause of the problems. On my reading of the review officer's decision he seems to have himself had some doubts as to the severity of the worker's complaint and his explanation as to its cause. The only medical evidence is that of Dr Hingston and his evidence is that the cause of the appellant's difficulties was "repeated lifting of heavy pails (20 kg) at work". (My emphasis.) I agree with Ms Stringleman's submission that it is odd that the appellant accepted that advice when it initially decided that the worker had suffered a gradual process injury arising out of and in the course of his employment and then changed its decision to personal injury arising out of and in the course of his employment under s.6. I agree with Ms Stringleman that on the medical opinion there is no support for that finding. 7 Because of the apparent conflict between some of the statements made by the appellant and the delay in lodging the claim I have some doubts as to the claim he now makes that he suffered a twinge on the 31st day of May at work while lifting pails of ink. Had that been so obvious I am certain it would have been his explanation to the doctor on 4 June, but at that time he could recall nothing. I therefore consider that the decision of the review officer must be revoked and the appeal is allowed. I do not consider that the worker has suffered an injury under s.6 of the Act and accordingly the attribution of costs against the appellant must also be revoked. I should also add, although it was not in issue, that I consider that the respondent's decision to revoke its first decision under s.7 was correct because the evidence did not warrant its original finding There will be costs to the appellant of $900. DATED at WELLINGTON this |4th day of December 1997 A W Middleton District Court Judge dca68-97.doc (rd)