Martin v Accident Rehabilitation and Compensation Insurance Corporation

l\! THE DISTRICT COL RT HELD AT \\'ELLE\'GTON Decision No52 /9-4: UNDER The Accident Rehabilitation and Compensation Insurance .-\ct 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 68-94- 0113 BETWEEN NICOLA MARTIN of Taradale Appellant (Appeal No. DCA 112/9-4:) AND ACCIDENT REHABILITATION . . AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21st day of September 1994 APPEARANCES R J Hayward for appellant. N L Smith for respondent. DECISION OF JUDGE AW MIDDLETON The issue in this appeal is whether or not the personal injury suffered bv the appellant entitles her to a lump sum payment under the Accident Compensation Act 1982. J · The facts which gi\·e ri.se to the appeal are th,1t the appellant 1L1dged a cl,1irn with the 1:espondent on S September 1992 requesting co,·er in respect l1f the development of right wrist tenosyno,·itis. The appellant's employment required her to \\'Ork with numerical keys on a computer, constantly using her index and pointer fingers. She had been employed in this capacity by the same firm for 16 years during which time the effects of the injury gradually became apparent. Her first recollection of problems was in about 1990 or 1991 when she went on holiday to Bali and her wrist became so sore that she could not write postcards home. On her return to New Zealand she became ill v-:ith diarrhoea and ,·omiting. She attended her general practitioner on 3 September 1991 for this complaint and she says for the problems vvith her wrist. Her then general practitioner, Dr Sweetapple, recorded in her records the following report: "Med. cert sent to 3 Sep 1991 3/7 return from 1/12 Jzolidrzy nrz11serz/rn111iti11g mzd dirzrrlzoerz on plmze ,zow settli11g o/e clzest rzbdo 11rzd ... rzlso tre111bly Juz11d writti11g [sic] see 1/52 if not i111proui1Lg. Gnstrolyte Sg Srzclret 10 qhj- Buccrzstem 3111g tnb 15 qtij" Shortly after that attendance the appellant was admitted to hospital and. was off work for four weeks. Upon her return to work she realised that she had used all her accumulated sick leave and in order not to jeopardise her job she continued with her work, although with some difficulty. She did not return to see her doctor. As her problems continued, she explained to the Review Officer that she thought that she should carry on, and occasionally she received additional support at work, but in the end was forced to seek _ medical advice from Dr Reekie on 8 September 1992. The -claim ·form which the doctor completed, which is dated 8 September 1992, details the description of the injury as "Computer Operator - developed right wrist pain and weakness over last six months" . . The doctor showed the date of injury as being 30 April 1992, presumably because of the appellant's complaint that the problem had developed over six months, because there appears to be no other reference to this date in the material on the file. The respondent acknowledged the filing of the claim and accepted that the appellant had cover, noting that the injury had occurred on 30 April _ 1992. On 6 March 1993, the appellant lodged a claim for a lump sum entitlement: On 11 May · 1993, the respondent ad vised the appellant that it considered the date of accident to be 8 September 1992 and that consequently she was entitled only to an independence allowance. On 6 September 1993, the respondent advised the appellant that her claim for a lump sum entitlement was declined because her claim had been accepted under s.8(2)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant applied for a review o( that decision. ,., _, In her decision the Re\·iew Officer confirmed that pursuant to the prn\·isions of the 1992 Act a · claim under s.7 for personal injury caused by gradual process, disease, or infection arising out.of and in the course of employment, is deemed to ha\'e been suffered on the date upon ·which the appellant first recei\'ed treatment from a registered health professional for that personal injury, or, that the injury resulted in the incapacity of the appellant, ·whiche\·er first occurs. The Re\·ie\,· Officer held that the submission that the date of first treatment was 3 September 1991 could not meet the statutory requirement of s.7(3) of the 1992 Act. The Re\'iew Officer considered that the primary motive which prompted the 3 September 1991 \'isit was the nausea, vomiting and diarrhoea problem, and that the doctor only noted the handwriting problem. The Re\'iew Officer, therefore, confirmed the respondent's primary decision. !vis Hayward submitted that the Review Officer erred both in fact and law in applying the test set out in s.7(5), and, alternatively, that if the Review Officer was correct in applying the s.7(5) test she was wrong to conclude that the appellant's appoinhnent with Dr Sweetapple on 3 September 1991 did not satisfy the requirements of the section. Ms Hayward submitted that the Review Officer had correctly described the date . of injury as 30 April 1992 but, as I have previously said, that-appears to have been a date fixed by the doctor only because of the appellant's suggestion to him that the problem had then been evident for approximately six months. There is certainly no other reference to this date nor does there appear to be any other reason why it should have been recorded as the date of injury. I\.1s Hayward further submitted that regard should be had to the transitional provisions in the 1992 Act and, in particular, the provisions of s.135(3). This section, in my view, could only apply if the date of injury is accepted as being 30 April· 1992, but as I have alre?dy said, I do nc:it accept . that date as being in any way established and I i:eject that submission. The principal submission made by Ms Hayward is whether or not the attendance on Dr Sweetapple could be considered to be 1 1treahnent11 in respect of the wrist problem in order to meet the test in s.7(5). The only record is the note from Dr Sweetapple that the appellant had 11trembly hand writting [sic]". Certainly no diagnosis or treatment was given other than the reference to the effect that she should return a week later. Ms Hayward provided me with various definitions of the meaning of "treatment" taken from different dictionaries and submitted that the examination and recording of the results _by Dr Sweetapple was sufficient to constitute "treatment". Ms Smith submitted that the transitional provisions of s.135(2) do not help the appellant in this case because they only relate to the situation of an applicant who has already been accepted for CO\'Cr under either the 1972 or 1982 Acts. In this case, the appellant's claim had not been accepted under either Act. --1 :t\.ls Smith submitted that if the appellant wished to establish her entitlement tL) co,·er under s.28 of the 1982 Act, she had to comply with s.28(3) which deems the date of accident so far as that section is concerned as being the date of inrnpacity for employment. Ms Smith submitted that that interpretation \Vas confirmed in the decision of Du Fall v ACC (District Court, Decision No. 21/9-1). Ms Smith submitted that as the appellant did not stop working until December 1992, the deemed date of accident so far as section 28 of the 1982 Act is concerned, would be December 1992. Ms Smith submitted that accordingly the issue had to be determined under s.7 of the 1992 Act which brings into play the provisions of s.7(5). She submitted that on the e\·idence, both on the file and in the transcript before the Review Officer, the only reference to the wrist problem, prior to the filing of the claim, was the reference by Dr Sweetapple regarding the handwriting problem when the appellant had consulted him in relation to her nausea, vomiting and diarrhoea problems following her Bali holiday. I accept Ms Smith's submission that the deemed date of the appellant's accident must be 8 September 1992. I do not accept Ms Hayward's submission that the attendance upon Dr Sweetapple on 3 September 1991 constituted "treatment" in relation to the right wrist problem. In my· view, the provisions of s.7(5) contemplate a specific vi sit to a registered· health professional with a view to . _ obtaining an examination and diagnosis of the alleged problem for the purpose of effecting a cure. I do not consider that in this case the appellant has met the criteria provided in s.7(5) and the appeal must be dismissed. Dated at Wellington this 30th day of September1994 Anunaduer Judge AW Middleton 112-\1-l.Joc(mh)