O'Halloran v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 2 5 - 197 HELD AT CHRISTCHURCH 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 NICOLA JAYNE O'HALLORAN Appellant (Appeal No. DCA 192/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of June 1997 APPEARANCES Craig Hutchison for appellant Rebecca Irving for respondent DECISION OF JUDGE D A ONGLEY The appellant lodged a claim with the Corporation in May 1995 in respect of cervical spine dysfunction resulting from being hit in the face by a basketball in 1989. The Corporation enquired into the claim in order to consider whether it should be accepted outside the twelve month period for lodgement of claims under s 63(2) of the Accident Rehabilitation and Compensation Insurance Act 1992. By a decision of 2 November 1995 the Corporation declined to accept the claim. The Corporation's letter noted that there was an inconsistency between the appellant's account of her injury and the associated medical record. The appellant had stated that she was hit in the face by a basketball that jerked her head back and that she had suffered neck problems ever since. The reference to the general practitioner's note referred to a medical record of 13 June 1989 which recorded only "netball training. Sore ears .. ". It did not refer to neck pain. Secondly, the Corporation's letter noted that the Corporation was prejudiced in determining whether personal injury by accident did occur, so that the claim would not be accepted either under the Accident Compensation Act 1982 or under the 1992 Act. An application for review was heard on 21 February 1996. The Review Officer asked for some further information from Mr D M Thorburn, oral surgeon at Canterbury Health. Mr Thorburn provided a precis of Canterbury Health records commencing with an examination on 2 August 1993 on a referral from her private dental practitioner for removal of wisdom teeth which the appellant had requested prior to going overseas. The note recorded "Pain? Left TMJ began August 1992.... radiograph revealed unerupted 38 - ? cause of pain and referral for assessment .. impression pain (left) face unlikely to be related to unerupted 38". Mr Thorburn said a note on 4 September 1993 recorded "? some cervical referral" and he gave a resume of ongoing treatment at fairly frequent intervals until 24 November 1995 when, he said, the appellant contacted him "requesting ACC documentation that the primary trigger to her problem was a blow from a basketball probably in 1992. After checking the notes I told her this was the first comment she had made on this initiation and I was not prepared to certify cause and effect." Mr Thorburn said that there was no mention of any traumatic episode before the appellant telephoned him on 24 November 1995. He said: "This girl had a jaw dysfunction which retrospectively can be considered a secondary manifestation of cervical dysfunction. The cause of the cervical dysfunction is not clear from the evidence available, but the possibility of a traumatic event cannot be excluded. There is no apparent connection between her presenting painful problems and the wisdom teeth which evidently were removed at patient request pending her overseas departure." In his decision, the Review Officer accepted that the appellant probably suffered personal injury by accident in June 1989, but considered that the Corporation had been prejudiced by the six year delay before a claim was lodged. The Review Officer found that the available medical evidence did not assist in overcoming the prejudice caused to the Corporation through delay. He therefore confirmed the Corporation's decision declining to accept the claim. The advocate for the appellant submits that there is no question that an accident occurred and that the claim should first be admitted, then an enquiry should be made to establish whether the appellant suffered the personal injury treated in later years. The respondent submits that the prejudice which is caused by late lodgement of the claim is the lack of opportunity to make a timely medical enquiry in order to ascertain the consequences of the accident in relation to the cervical pain for which the appellant later received treatment. I have considered whether the possible late onset of symptoms from the basketball accident may have been so unexpected that the Corporation would have been in no better position if the appellant had lodged a claim in 1989. If she had done so, it is very likely that no entitlements would then have been claimed beyond the initial medical consultation and the file would have been closed. The appellant's claim some six years - 3 - later in respect of personal injury resulting from that same accident would have left the Corporation with exactly the same difficulty that it now faces Ms Rice submitted that if a claim was made in 1989 a more explicit description of the injury would have been required on the claim form. I agree that is probable. There may have been a more focused record of the injury and its immediate effects, which would probably have assisted the Corporation in considering whether later symptoms were caused by the accident. Section 63 of the 1992 Act governs the present question of admitting a claim lodged after one year from the date of the accident. Consideration of a late claim is governed by subs 2A which reads: 63. Claims - (2A) A failure to lodge a claim in respect of personal injury within the time specified in subsection (2) of this section shall not be a bar to payment in respect of that personal injury if the Corporation is of the opinion that the Corporation has not been prejudiced in determining cover or payments in respect of that personal injury by the failure to lodge the claim within the time specified. ] The time difficulty is overcome if the Corporation is of the opinion that it has not been prejudiced. In this case the Corporation is not of that opinion and the question on appeal is whether the Corporation holds that view reasonably. I consider that the Corporation is entitled to take into account the very tenuous link which is demonstrated by the medical material already obtained. One may suppose a possibility that an exhaustive medical enquiry may establish batter reasons to associate the appellant's present symptoms with the 1989 accident as she now describes it. Even so, it appears reasonable for the Corporation to consider that it is prejudiced by the now vague description of the accident and its immediate consequences, the lack of any contemporaneous medical opinion, and the speculation which must now be involved in connecting the later symptoms with the accident. The appellant for her part has not acted unreasonably. She cannot be criticised for not lodging a claim in 1989. However the question whether the Corporation is prejudiced is an objective one. In my opinion, Corporation has taken the correct considerations into account. I cannot find that the Corporation was unreasonable in declining to accept that it would not be prejudiced by delay in this case. The appeal is dismissed. DATED at WELLINGTON this day of 1997 D A Ongley District Court Judge IN THE DISTRICT COURT Decision No. 25 - 197 HELD AT CHRISTCHURCH 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 NICOLA JAYNE O'HALLORAN Appellant (Appeal No. DCA 192/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of June 1997 APPEARANCES Craig Hutchison for appellant Rebecca Irving for respondent DECISION OF JUDGE D A ONGLEY The appellant lodged a claim with the Corporation in May 1995 in respect of cervical spine dysfunction resulting from being hit in the face by a basketball in 1989. The Corporation enquired into the claim in order to consider whether it should be accepted outside the twelve month period for lodgement of claims under s 63(2) of the Accident Rehabilitation and Compensation Insurance Act 1992. By a decision of 2 November 1995 the Corporation declined to accept the claim. The Corporation's letter noted that there was an inconsistency between the appellant's account of her injury and the associated medical record. The appellant had stated that she was hit in the face by a basketball that jerked her head back and that she had suffered neck problems ever since. The reference to the general practitioner's note referred to a medical record of 13 June 1989 which recorded only "netball training. Sore ears ..". It did not refer to neck pain. Secondly, the Corporation's letter noted - 2 - that the Corporation was prejudiced in determining whether personal injury by accident did occur, so that the claim would not be accepted either under the Accident Compensation Act 1982 or under the 1992 Act. An application for review was heard on 21 February 1996. The Review Officer asked for some further information from Mr D M Thorburn, oral surgeon at Canterbury Health. Mr Thorburn provided a precis of Canterbury Health records commencing with an examination on 2 August 1993 on a referral from her private dental practitioner for removal of wisdom teeth which the appellant had requested prior to going overseas The note recorded "Pain? Left TMJ began August 1992.... radiograph revealed unerupted 38 - ? cause of pain and referral for assessment .. impression pain (left) face unlikely to be related to unerupted 38". Mr Thorburn said a note on 4 September 1993 recorded "? some cervical referral" and he gave a resume of ongoing treatment at fairly frequent intervals until 24 November 1995 when, he said, the appellant contacted him "requesting ACC documentation that the primary trigger to her problem was a blow from a basketball probably in 1992. After checking the notes I told her this was the first comment she had made on this initiation and I was not prepared to certify cause and effect." Mr Thorburn said that there was no mention of any traumatic episode before the appellant telephoned him on 24 November 1995. He said: "This girl had a jaw dysfunction which retrospectively can be considered a secondary manifestation of cervical dysfunction. The cause of the cervical dysfunction is not clear from the evidence available, but the possibility of a traumatic event cannot be excluded. There is no apparent connection between her presenting painful problems and the wisdom teeth which evidently were removed at patient request pending her overseas departure." In his decision, the Review Officer accepted that the appellant probably suffered personal injury by accident in June 1989, but considered that the Corporation had been prejudiced by the six year delay before a claim was lodged. The Review Officer found that the available medical evidence did not assist in overcoming the prejudice caused to the Corporation through delay. He therefore confirmed the Corporation's decision declining to accept the claim. The advocate for the appellant submits that there is no question that an accident occurred and that the claim should first be admitted, then an enquiry should be made to establish whether the appellant suffered the personal injury treated in later years. The respondent submits that the prejudice which is caused by late lodgement of the claim is the lack of opportunity to make a timely medical enquiry in order to ascertain the consequences of the accident in relation to the cervical pain for which the appellant later received treatment. I have considered whether the possible late onset of symptoms from the basketball accident may have been so unexpected that the Corporation would have been in no better position if the appellant had lodged a claim in 1989. If she had done so, it is very likely that no entitlements would then have been claimed beyond the initial medical consultation and the file would have been closed. The appellant's claim some six years - 3 - later in respect of personal injury resulting from that same accident would have left the Corporation with exactly the same difficulty that it now faces. Ms Rice submitted that if a claim was made in 1989 a more explicit description of the injury would have been required on the claim form. I agree that is probable. There may have been a more focused record of the injury and its immediate effects, which would probably have assisted the Corporation in considering whether later symptoms were caused by the accident. Section 63 of the 1992 Act governs the present question of admitting a claim lodged after one year from the date of the accident. Consideration of a late claim is governed by subs 2A which reads: 63. Claims - (2A) A failure to lodge a claim in respect of personal injury within the time specified in subsection (2) of this section shall not be a bar to payment in respect of that personal injury if the Corporation is of the opinion that the Corporation has not been prejudiced in determining cover or payments in respect of that personal injury by the failure to lodge the claim within the time specified.] The time difficulty is overcome if the Corporation is of the opinion that it has not been prejudiced. In this case the Corporation is not of that opinion and the question on appeal is whether the Corporation holds that view reasonably. I consider that the Corporation is entitled to take into account the very tenuous link which is demonstrated by the medical material already obtained. One may suppose a possibility that an exhaustive medical enquiry may establish batter reasons to associate the appellant's present symptoms with the 1989 accident as she now describes it. Even so, it appears reasonable for the Corporation to consider that it is prejudiced by the now vague description of the accident and its immediate consequences, the lack of any contemporaneous medical opinion, and the speculation which must now be involved in connecting the later symptoms with the accident. The appellant for her part has not acted unreasonably. She cannot be criticised for not lodging a claim in 1989. However the question whether the Corporation is prejudiced is an objective one. In my opinion, Corporation has taken the correct considerations into account. I cannot find that the Corporation was unreasonable in declining to accept that it would not be prejudiced by delay in this case. The appeal is dismissed. DATED at WELLINGTON this day of 1997 D A Ongley District Court Judge