Ward v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT GISBORNE 03 - Decision No. 51/ 96 UNDER The Accident Rehabilitation and 6 Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NEIL WILLIAM WARD of Gisborne Appellant (Appeal No. DCA 265/ 95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of July 1996 APPEARANCES Appellant in person A R Davey for the respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent declining to accept that the injury suffered by the appellant on 28 March 1984 was a work injury. The appellant was granted cover in respect of a infection between the nail of his left index finger which the appellant alleged was the result of a contamination at his place of work which the respondent considered was not supported by the medical evidence. In spite of having received cover for personal injury by accident the appellant has persisted in seeking a review and appeal in order to establish that the injury was a work injury. I am not certain how the appellant considers this will in 2 any way assist his position as the respondent has already accepted that he has cover for personal injury by accident. The circumstances which gave rise to the claim are that on 2 April 1994 the appellant consulted Dr Sepp regarding the injury to his left index finger. The M46 claim form which is dated 2 April 1994 and completed by Dr Sepp certifies that the appellant had an infected left index finger which it was alleged had occurred on 28 March 1994. On investigation the respondent ascertained that the appellant had been employed at the Weddel Freezing Works for one week from 20 March 1994 to 25 March 1994. It appears that on 30 March 1994 the appellant had sought assistance from his employer's medical officer who did not consider that he had suffered a work injury and referred him to his General Practitioner Dr Rouse. The Weddel Works' doctor was Dr Morrison. The respondent obtained various reports in order to ascertain the true status of the appellant's claim. On 13 December 1994 Mr I D Burton, a Surgeon employed by Tairawhiti Healthcare Limited stated: "Thank you for referring Neil to the clinic. I understand that he picked his finger on a hedgehog spine in February and four weeks after this, the finger became swollen and red over the distal phalanx. Had the hedgehog spine been the cause of the inflammation, I would have expected the finger to have become infected much sooner. As you know he is a Slaughterman and the people at the Works said it was like a "maggot". I am not familiar with the Freezing Works term "maggot", but apparently it is caused by some fat from the animals being introduced in the skin close to the nail which then results in a condition identical to that which he had. The swelling became fluctuat and was incised with the release of pus. The nail dropped off and the finger was fine for a while after which the swelling recurred. Two months ago, some more pus discharged from the finger but there has been no inflammation or discharge since then. He is on no medications and has no allergies. On examination today, there is a ridge running longitudinally down the nail leading up to a V-shaped gap in the skin of the distal phalanx overlying the nail bed. There is no tenderness or inflammation. I think it is likely now the finger will settle down completely and I will see him in two months or sooner if necessary. It does seem likely that the problem may well be related to his work at the Freezing Works and he is obviously quite annoyed at the way he feels he has been dealt with by ACC." A report from Dr Rouse dated 10 August 1995 states: "Thankyou for your letter, Ist August, concerning his L index finger. 1. It is difficult to know what caused the finger infection. On 23/3/94 Mr. Ward commenced Augmentin for pain, redness, and swelling over the 3 dorsum of the distal phalanx. I saw him on 30/3/94 and continued Augmentin for infection. On 3/4/94 Dr. E Sepp endeavoured to "drain fluid". On 5/4 there was fluctuat swelling which suggested sterile pus. Mr. Ward mentioned being pricked by a hedgehog one month previously, and being secondarily infected by Orf. Never at any stage did the infection have the typical appearance for Orf - there was no broken skin. I incised the lesion on 6/4/94 and it appeared to settle temporarily. By 7/4/94 Mr. Ward considered that he had been injured by a "Maggot" (a globule hot fat travelling along the nail bed or origin of the nail, causing infection). I told Mr. Ward that I had no knowledge of "maggots" - apparently word for paronychia. 2. It is possible that the finger infection was a result of the work accident. 3. I have never seen an infection said to be caused by a maggot. 4. Mr. Ward stopped work at Weddel Kaiti on 23/5/95. He says the finger gave trouble from 28/3/95, and I saw him 30/3/95. The cause of infection would have been present before 28/3/95. 5. I attach copies of letters from Mr. I Burton to whom I referred Mr. Ward because of ongoing problems." The Weddel Works' doctor, Dr Morrison in a report dated 10 August 1995 states: "With regard to your letter dated 3.8.95. My only record of seeing this patient was on the 6.4.94 as is recorded in the photocopied notes you included in your letter. My implication on re reading these notes is that the patient was somewhat vague as to the history of the event causing the infection E that it did not appear related to work Because of Weddel Kaitis Policy of not treating non work related accidents. The patient was referred to his own G.P. who in this instance was Dr. Rouse. I did not appear to have seen him again and have no record of any further follow up. Reference is made to a "maggot" Mr Burton. A "maggot" is a very specific injury, and is frequently seen in the Freezing Industry. This injury involved the soft tissue of the finger, and in my opinion was not a maggot. It also did not have the appearance of an "orf" another work related injury. 4 Dr. Rouse made reference that the infection was produced by a finger prick injury from a hedgehog. This was a satisfactory examination to the events that followed. I had no reason to doubt this, and therefore was not involved further." As a result of the information it received, the respondent declined to accept that the appellant had suffered a work related injury although it accepted that he had suffered personal injury by accident for which he was entitled to cover. The appellant applied for a review of that decision. The appellant gave evidence at the review hearing which was recorded in the usual manner but as the officer who heard the review was seconded to other duties it became necessary for a second review officer to compare and complete the decision He concluded that the medical evidence did not support the appellant's claim and declined the application for review. It is against that decision that the appellant now appeals. The appellant has submitted that the report from the Pathology Centre to Dr Rouse indicated that the swab from the appellant's finger disclosed Light Proteus mirabilis and Light Diptheroid bacillus. He submitted that on the basis of definitions contained in medical dictionaries, copies of which he submitted he could only have sustained that pathology at work. He submitted further that as Dr Rouse had suggested that when he saw the appellant on 30 March 1995 the cause of infection would have been present before 28 March 1995 this supported his theory that it had occurred at work. The appellant took issue with a number of minor matters which are really not relevant to the appeal which I have to decide, which is whether the injury constituted a work injury. Mr Davey referred me to the medical reports to which I have already referred. He also submitted that in an appeal the burden of proof is on the balance of probabilities and that it is necessary for the appellant to satisfy that onus if he is to succeed. He submitted that Dr Rouse had advised the respondent that he did not consider the injury was work related although he conceded that he had never seen an infection caused by a "maggot". However, Dr Rouse considered it may have been possible that the finger infection was the result of a work accident. Mr Burton also conceded that he was not familiar with the works term "maggot" and he also thought that the problem may well be related to his work at the freezing works. However, Mr Davey submitted that I should prefer to Dr Morrison's evidence he being the specialist works doctor who said that he had had experience of "maggots" and who said that the appellant's injury was definitely not a maggot. Dr Morrison said that a maggot is a very specific injury frequently seen in the freezing industry and that the appellant's injury was not caused by a maggot. While the appellant is adamant that he could only have sustained the injury at work he had sought medical advice some three days after he had left his employment and Dr Morrison, the work's doctor who saw him then and who is the doctor experienced in freezing works related injuries considered it was not a work injury. All that Mr Burton and Dr Rouse can say is that they are not conversant with the particular injury known as a "maggot" and were prepared to say that the appellant may have suffered an injury at work. The onus is on the appellant to show on the balance of probabilities that the injury he sustained was a work injury. I agree with Mr Davey's submissions that I should pay more regard to Dr Morrison's firm opinion that the injury was not a work injury rather than to the other two doctors who stated that they were not conversant with that type of injury and were only prepared to acknowledge the possibility that it could have been work related. In those circumstances, the appeal must be dismissed. DATED at WELLINGTON this 29th day of July 1996 buemadula A W Middleton District Court Judge dc265-95.doc (nr)