Leaderbrand Produce Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 264/97 Appeal No. DCA 269/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LEADERBRAND PRODUCE LTD of Gisborne Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the Act Respondent HEARD on the 27th day of August 1997 COUNSEL Ms E Jeffs for appellant Ms K Tahana for respondent DECISION OF JUDGE P F BARBER The issue is whether an employee of the appellant suffered a work injury (in terms of section 6 of the Act) on 6 March 1995. The appellant has also raised as an issue the standard of proof required before the respondent should accept that a work injury has occurred. The appellant's theme is that the employee's injury did not occur in the workplace. The Facts On 16 March 1995 the employee lodged a claim with the respondent in respect of a back injury. In an accompanying certificate the employee's doctor had described the 2 injury as "prolapsed lumbar invertebral disc" and had certified the employee as fit for light work. On 8 March 1995 the doctor had issued a fully unfit certificate for the employee. The respondent accepted the employee's claim for cover and paid weekly compensation and other entitlements. A work injury report was forwarded to the appellant in July 1995 and the appellant disputes that the claim was a work related accident on the basis that the accident was never reported to it. The essential evidence regarding the accident and the injury comes from the employee. He stated that the injury occurred at about 5.00 pm on Monday 6 March 1995 and that the next day he consulted his doctor who gave him a certificate for light work. He then advised his superior. The employee said that he suffered the injury while lifting a six inch pipe but he did not report the injury at that time. There seem to have been other employees working at that time but they were not advised of the injury. On Wednesday 8 March he was instructed to work under a truck which he did not think was light work. The employer disputes this and says he could have completed light duties. On 8 March 1995 the employee had returned to work with a further doctor's certificate stating that his "pain had become worse" and that he was to go off work and rest. On Friday 10 March 1995 his employment was terminated. He challenged the cessation of his employment through the Employment Tribunal and that aspect was subsequently resolved. The employee had suffered two previous work injuries on 25 November 1994 and 1 January 1995 respectively. The appellant has a policy requiring its employees to immediately advise it of any injury which they suffer while at work. On the two previous occasions when the employee suffered a work injury, he immediately reported that in terms of the appellant's policy and procedures. The appellant seeks to have the claim's cost deleted from its experience rating assessment. The effect of the respondent treating the employee's injury as a "work injury" is to increase the appellant's employer premium by about $12,000. A review was held on 1 May 1996 and the Review Officer upheld the respondent's decision to accept the claim as a work injury claim. The Relevant Sections of the Act Section 6 of the Act defines a "work injury" as "... personal injury arising out of and in the course of employment of that person; ..." and in that section there are also definitions of "arising out of employment" and "arising in the course of employment" Section 65(6) of the Act provides that where a work injury claim is lodged and there is a dispute as to whether or not a work injury has occurred, the Corporation shall "determine the matter". 3 Reasons for Decision Ms Jeffs submitted, inter alia, that the Act does not set out the "standard of proof" or, in other words, the requisite level of information which the respondent should obtain before it determines that a work injury has occurred nor the procedure it should follow in making such a decision. She particularly referred to Symington & Co v ARCIC (87/94, 11 November 1994, District Court, Christchurch) where the District Court held (inter alia) that the Corporation's obligation was to act fairly between the interested parties and that there was no particular onus of proof "as between the claimant and the employer" and the Corporation should not adopt a mechanical approach which requires supporting evidence of a work injury allegation. The Court also noted that whether a reporting procedure laid down by an employer had not been followed by the claimant was not in itself ground to reject an application for compensation, but it would also be wrong for the respondent to ignore the existence of work reporting procedures. The Court referred to the employer needing to show a probability (rather than a possibility) of a breach of natural justice where that is alleged. I agree with the submission of Ms Tahana that the correct onus of proof in matters such as these is that the appellant must show on the balance of probabilities that the employee did not suffer a work injury (in this case on 6 March 1995); refer West v Firestone Rubber Co [1991] NZAR 514 (CA) at 527 per Cooke P. Ms Jeffs also submitted that, in reaching his conclusion, the Review Officer did not give sufficient weight to the employee's failure to notify anyone of the accident despite there being other employees present at the place of work at the time. She referred to the employee having stated that there were no other employees present for him to report the accident to. She also referred to the employee having suffered two previous work injuries so that he must have been aware of his employee's accident reporting procedures as at 6 March 1995. Accordingly, she submitted that the respondent should not have accepted the employee's word that he suffered a work accident and that the Review Officer should not have confirmed this position. Ms Tahana also referred to the only ground advanced in support of the appellant's case, namely, that no work injury occurred in that the accident was not immediately reported and that the employee's credibility must be in doubt. The employee stated that he injured himself at approximately 5.00 pm on the evening of 6 March 1995 by lifting an irrigation pipe and in the transcript he states in some detail how the accident occurred. He injured his back dragging a pipe so that a door could be closed. He maintained that the office was locked at the time so that he could not report the accident but he did so on the morning of the next day; and it is clear that he did that. There was reference by counsel to a number of District Court decisions which have considered alleged work injury situations where procedures for reporting work, accidents were not complied with; but this case must be considered on its own' particular facts. I note that at the review hearing the employee said that the pain he experienced at the time he bent over and lifted the pipe (at about 5.00 pm on 6 March 1995) was not as severe as the pain that came upon him later that evening. This could be a reason for his not telling other employees who may have been around about 5.00 pm but, frankly, there could have been various reasons why he did not report the accident until the next morning rather than, in effect, after the end of the previous working day. I agree with Ms Tahana that it is clear from the cases that non-compliance with reporting procedures cannot be determinative of whether there has been a work injury and it is merely a factor to be taken into account in all the circumstances. That is simple common-sense. The fact is that there is no real evidence to contradict that given by the employee before the Review Officer. In so far as there may be reasons for doubting the credibility of the employee e.g. a possible contradiction in his evidence as to whether he could have told other workers at the time of his injury, those factors are not compelling enough to cast doubt on his essential evidence about the occurrence of the injury. On the one hand, it is curious that he did not tell someone about the injury shortly after it occurred and follow the injury reporting procedures which he must have known about from previous occasions of work injury; on the other hand, the injury occurred at the end of the day and he may not have realised the consequences of it, or the extent of it, until he visited his doctor the next morning. I observe that the appellant employer was not represented by legal counsel at the hearing before the Review Officer and that it could have called further evidence or tested the existing evidence better than it did at the Review Hearing, or could have pursued its application to call evidence before me, but did not to do so. I accept that there was ill feeling between the employee and the appellant due to the appellant having terminated the employee's job on 10 March 1995, being fairly soon after the accident, and that attitude could well colour the evidence of the employee. There has been no real evidence that the incident of lifting the six inch pipe was not causative of the employee's lumbar disc prolapse. That injury must have occurred at work. In any case, the Review Officer has made considered findings regarding credibility and there is no reason to go behind those findings. The Review Officer made his findings having heard direct evidence from the employee and from the appropriate executive of the employer (the appellant). I take into account the submission of Ms Jeffs that as the employee had suffered two work injuries previously, he would have been aware on the night of 6 March 1995 that he was required to report the accident; and that one should query the evidence of the employee that he suffered a work injury in the light of the fact that there must have been other employees available to whom he could have reported the accident and yet he (allegedly) has stated that there were not. However, I consider that even taking into account the employee's failure to follow the reporting procedure for work accidents and seeming inconsistencies in the employee's evidence, nevertheless, on the balance of probabilities the employee suffered a work injury. 5 The essential submission made in a number of ways by Ms Jeffs is that there is a lack of proof that the injury occurred in the workplace, particularly when account is taken of other employees apparently having been present at the time of the injury and the existence of a reporting procedure, and that the respondent should not have made its decision solely on the word of the employee. I certainly appreciate the dilemma of the appellant employer that it is in a difficult position when it is advised of the details of a work accident some time after the event. It can become difficult at that point for the employer to check out the allegations. However, I cannot accept Ms Jeffs' submission that there is a complete lack of evidence to suggest that the employee's injury occurred in the workplace. On the contrary, there is direct evidence of the employee which has not been challenged in any convincing way at any stage. I do not accept Ms Jeffs' submission that the Review Officer's finding of credibility is only implicit. He found that on the balance of probabilities the accident occurred as described by the employee and in the course of the employee's work. As I mentioned above, the employer could have better tested the evidence of the employee and other workers at the Review Hearing level but did not do so. In so far as Ms Tahana submitted that there could be no self-interest in the evidence of the employee, I note that the employee could well be against the appellant employer in view of it having dismissed him soon after the accident. I take into account that the employee did not much like the employer at material times, in terms of the evidence for this case, and there was acrimony between the appellant and the employee. However, there is no compelling evidence to shake that given by the employee to the Review Officer or any inferences made by the Review Officer regarding the employee's credibility. On the balance of probability from considering the transcript of the Review Hearing, I find that the employee suffered an accident arising out of and in the course of his employment with the appellant. There is no compelling evidence to suggest that the accident occurred outside the employment environment or otherwise than from an employment task. I am not prepared to alter the findings of the Review Officer. The appeal is hereby dismissed. DATED at WELLINGTON this | 7 day of December 1997 Judge P F Barber District Court Judge dc269-96.doc (nr)