Broderick v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 155 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARIA MILAGROS BRODRICK of Paparoa Appellant (Appeal No. DCA 17/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of July 1997 APPEARANCES D Brodrick, (husband) for the appellant A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The appellant lodged a claim with the respondent in March 1995 following an accident which occurred on 27 January 1995 when she fell down while mowing the lawn and the lawnmower handle came off. She made her first visit to her General Practitioner, Dr L Mitchell on 29 March 1995 and was diagnosed as having "a strain on L4/15 spine." The appellant was granted cover as a result of which various entitlements to compensation were approved. 2 In December 1995 the appellant applied for entitlement to childcare and home help which was referred for assessment and the subsequent assessment issued on 4 March 1996 showed a nil entitlement. A report from the assessor in relation to home help concluded that a report from a specialist might be of assistance because the assessor noted "Is her need for help suddenly due to the fact of her pregnancy?? I query why she suddenly needs help in the home after her injury being a year old." A report from the appellant's General Practitioner, Dr Mitchell which is dated 20 January 1996 noted that the appellant had a history of pre-existing pain which had lasted for some years and also noted that an x-ray report in June 1995 had described the appellant's condition as "normal". Dr Mitchell stated: "There are a multitude of pre-existing conditions which might delay recovery i.e. anxiety/depression social circumstances endometriosis small statue; her daughter aged 2 and a half is half the size of her already and still being carried/lifted/bathed etc." A further report was provided by Dr S Helagi on 8 February 1996 in which she submitted a copy of a report from Mr M C Sanderson, an Orthopaedic Surgeon who had examined the appellant in August 1995. His comments were: "She does complain of a number of aches and pains which have been a problem to her over the years. Two years ago she had a caesarian section for a baby which was over 10lbs in weight. She also apparently has endometriosis which gives her back pain and has intermittent migraines. Since her caesar she has not returned to her previous activity level and has become rather overweight." Dr Mitchell had also provided a copy of a report from Mr D Lyon, an Orthopaedic Surgeon who had examined the appellant in June 1992 when he had found "on examination she has a number of inappropriate signs in that she has generalised tenderness to light touch down most of her spine and positive axial compression test." He concluded that the appellant's problems were "she most likely has a mechanical type back pain which should be treated conservatively but I feel we should rule out any other cause for her pain." . . On 29 March 1996 the respondent advised the appellant that it declined further entitlements to payments under the Act because: (a) there was a delay of two months in seeking medical help which raised serious doubts as to the seriousness of the accident; and (b) that she had a well documented pre-existing back condition. The appellant sought review of that decision. At the review hearing the appellant was represented by her husband who declined a request by the Review Officer for him to obtain additional evidence from the Occupational Therapist and from Dr Mitchell. In the absence of further evidence the Review Officer concluded that on the 3 basis of the medical evidence before him there was insufficient evidence that her continuing back problems were attributable to the incident with the lawnmower. At the hearing of the appeal Mr Brodrick provided me with extensive submissions. He submitted that the respondent had failed in its duty to make assessments in relation to childcare within the appropriate time and furthermore, had relied on information which it had obtained from medical practitioners without the consent of the appellant thus breaching the privacy legislation. He submitted further that in the absence of the persons whose reports were relied upon by the respondent and the Review Officer, the Review Officer could not have come to the decision which he did. He also submitted that some of the reports relied upon were prejudiced against the appellant. He submitted further that the pre-existing condition as a result of the accident in 1988 could not be used against the appellant because the respondent had not recognised that the appellant had suffered an accident on that occasion. He also submitted that as the review application had been reasonably brought, some allowance for costs should have been made. Mr Barnett submitted that any entitlement to compensation for back injury as a result of the accident on 28 January 1995 could only exist as long as the effects of the accident continued. He submitted that as the appellant had not sought medical assistance for some three months after the accident, the consequences of the accident could not have been too serious. He submitted further that the report of the Occupational Therapist in January 1996 raised doubts as to the reasons for which the appellant required assistance as it appeared to the Therapist that they were not accident related. Mr Barnett submitted that on the medical evidence, it was clear that the appellant did have an underlying back problem unrelated to the accident. As I explained to Mr Brodrick at the hearing, the Review Officer has a wide discretion to accept any evidence whether or not it would normally be accepted as evidence in a Court of law. The Review Officer was therefore able to place reliance on the medical evidence and the Occupational Therapist's statement. Furthermore, in filing the claim in March 1995 the appellant authorised the respondent to obtain such information in regard to her medical history as it wished so that the question of authorisation is not in issue. As the appellant was not prepared to authorise the Review Officer to seek additional information which may have supported the appellant's claim then I am left in the same situation as the Review Officer. The appellant certainly did not appear to consider the effect of the lawnmowing accident as serious because she did not seek medical assistance until three months after the accident occurred. There can be no doubt that at the time she was supported by her husband and was aware that she could seek medical assistance if she required it. The fact that the respondent did not grant cover in respect of the 1988 accident is not an argument for saying that the appellant did not have a pre- existing back problem. All the medical evidence and particularly that of Dr Mitchell, Mr Sanderson and Mr Lyon indicates that the appellant has a long-standing mechanical problem with her back which is not accident related. I am bound to accept that evidence because there is no other evidence which would support the 4 appellant's claim. Accordingly, I consider that the decisions of the Review Officer and the respondent were correct and that part of the appeal is dismissed I agree with Mr Brodrick that the Review Officer could well have concluded that the application for review was reasonably brought and could have made some allowance for costs on the review. In the circumstances, there will be an allowance of $150 for costs of advocacy together with $150 towards out of pocket expenses. DATED at WELLINGTON this 4th day of August 1997 Awunadula A W Middleton District Court Judge dca17-97.doc (nr)