Page and Macrae Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 248 198 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 PAGE AND MACRAE LTD DCA 142/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1998 APPEARANCES: Mr L Campbell, counsel for appellant Ms L Rice, counsel for respondent Mr G Mckain, claimant in person RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to accept that the claimant, Mr Mckain, suffered a work injury in or about October 1995. Background On 27 May 1996 the claimant, Garry Mckain, who was employed as an engineer by the appellant, lodged a claim for cover with the Corporation. That claim sought cover 2 for an injury to his left shoulder said to have occurred while lifting steel on 10 October 1995. The claim form indicates that the claimant did not seek treatment for that injury until 27 May 1996 when he consulted his GP, Dr Somerville, who diagnosed his injury as being "subluxation left AC joint, deltoid bursitis, numbness of left hand: nerve pinching left arm". For some reason this claim for cover was treated as a gradual process injury and claimant, employer and medical questionnaires were forwarded for completion. The claimant answered the question as to how the injury occurred by stating: While lifting an RSJ (steel) the other guy slipped, dropped his end and I copped the whole jarring on both arms but my left arm took the brunt of it. The claimant further stated that he had excruciating pain in his left shoulder which "went away after a while but has kept recurring at work depending on the job on hand. Sometimes not even being able to lift my arm up to my mouth and above my waist". The employer questionnaire was completed with the employer stating it had been informed of the accident only at the time of the questionnaire and it advised there was no record of the incident in the accident book. It contended there was no evidence that an injury had occurred at work. On 5 April 1997 Dr Somerville completed a treating practitioner report. He noted that the claimant had continued to work after the accident but had developed severe pain in the left forearm and hand in 1996. His condition became severe in December 1996 and a carpal tunnel decompression was carried out on 1 February 1997. The claimant was still diagnosed as having considerable left forearm and hand pain and his GP diagnosed left ulna nerve entrapment. On 9 May 1997 the Corporation advised the appellant that the claimant's injury had been accepted as a work injury. The appellant thereupon sought a review of that decision. On 24 October 1997 the claimant completed a statutory declaration which declared: "The injury to my left shoulder, arm and wrist did happen at work when myself and another employee of Page & McRae were shifting by hand a steel beam from outside No.3 workshop inside. The other employee tripped and dropped his end of the beam, consequently causing all the weight of the beam to come onto my arms jarring my shoulder and right down my arm. Previous to this injury I had had no problems with my shoulder and my recreational hobbies had had no bearing on my shoulder. However since my injury I have become restricted by what I can do work wise and recreational wise." The claimant attended the review hearing and gave evidence of the circumstances of the injury and subsequent. He stated that he did not notify the accident as was company policy and practice because he thought that the pain would go away. He also related another injury which he did not notify for about three months which initially involved a cut. It was not until the finger became white that he saw a doctor and it was discovered there was a piece of steel in the finger and it nearly required amputation. The claimant gave this as an example of him not notifying of an accident when he thought it would simply go away. The claimant went on to state it was not until the pain started getting very bad and he was being kept awake at night that he realised he would need to have medical attention and it was when it reached that stage that he eventually went and saw his doctor. The Review Officer ruled in favour of the claimant and upheld the Corporation's decision. In so ruling he stated: The issue is essentially one of credibility and fact. Medical opinion on the likelihood of a person continuing to work with this injury for a period of months would be of little assistance. I observed Mr Mckain carefully at the review hearing and found him to be a sincere and credible witness. I find on the balance of probabilities that the injury occurred as described by Mr Mckain at Page & McCrae Lid on or around 10 October 1995. In his submissions to this Court Mr Campbell, counsel for the appellant. submitted that it would be improbable that an injury at work involving "excruciating pain" would not be reported to the employer and he be seen by a doctor at the time. He submitted the failure to report the accident confirmed that it did not occur at work. Counsel further submitted that there was no reliable evidence as to the date of the accident, a claimant giving the date of 10 October 1995 as being as near as he could estimate. A further factor against it being a work injury it was submitted, was the fact that the claimant could not remember the name of the person who was carrying the steel beam with him and who tripped and caused the claimant to bear the full weight of the beam, thereby supposedly causing the injury. Counsel further submitted that the claimant's work history subsequent to the stated date of the accident is not consistent with a severe injury in that he continued to work long hours. He submitted that the Corporation had not established on balance that the claimant had suffered a work injury. Ms Rice, counsel for the respondent submitted that the key issue of credibility was identified by the Review Officer prior to the review hearing and that he conducted the review hearing very much with that in mind. She submitted that the extensive cross- examination of the claimant and of the nature of his answers and in particular his explanation for not having notified the accident must have been accepted by the Review Officer as he made a specific finding in his decision that the claimant was a credible witness. She submitted that this Court on appeal should not interfere with a finding of credibility. She further submitted that the fact that the claimant was not able to recall the precise date was understandable given that he did not seek immediate treatment and did not report it to his employer. Furthermore no claim for any entitlement was or has been made from the date of the accident and therefore that date does not have any particular significance. Counsel further submits that the other injury, which has serious consequences, which had not been reported by the claimant until some months later, is an indication of the fact that the claimant was a person who believed that nature would take its course rather than run off to doctors at every opportunity. Finally counsel for the respondent submitted that the issue is not whether an accident occurred or not but rather whether it occurred at work as the claimant says or not. From the claimant's perspective there is no advantage to be gained by him stating that he suffered a work injury when it was not a work injury. The fact of an injury having occurred and its nature were not in dispute. Decision As both counsel identified, this appeal involves a simple finding of fact as to whether the claimant did or did not suffer his subluxation of his left AC joint at work as he stated or as the appellant would have, at some other time but not at work. It is to be noted that the appellant's status in this appeal arises pursuant to section 89(2) of the Act which gives an employer a right of appeal against a decision of the Corporation determining that the injury was a work injury pursuant to section 65 of the Act. As was stated by His Honour Judge Ongley in South Pacific Tyres v ARCIC IVACR 331 the initial burden of proof lies with the Corporation and if the Review Officer has reached a decision on the basis of adequate evidence and a 6 correct view of the law then the employer would be required to persuade this Court to reverse that decision on appeal, the onus being on the employer. The Review Officer conducted the review hearing with the full knowledge that the only issue was whether the claimant was to be believed in his statement as to the circumstances of how he sustained his injury. The Review Officer who had the benefit of seeing and observing the claimant made a specific finding that he was a sincere and credible witness. In this Court the claimant appeared and made submissions on his own behalf, those submissions supporting the decision of the Review Officer and those of counsel for the Corporation. The impression I gained was that the appellant was a forthright and positive person but the circumstances of the claimant's presence in this Court at the appeal hearing would not be such where I could come to any independent assessment on the question of credibility. Suffice it to say there was nothing in the manner or demeanour of the claimant which would give me cause to consider departing from the finding made by the Review Officer. In the circumstances of this appeal I find that the onus is on the appellant. I find there was ample evidence, particularly on the question of credibility, upon which the Review Officer could rely and confirm the finding that a work injury had taken place. In submissions to this Court the appellant has pointed to various factors which I have referred to in his submissions but at the end of the day those factors are all reasonably explained and were so explained by the claimant and as I have noted he was found to be a sincere and credible witness. There is no evidence which has been produced to this Court which can be pointed to and which indicates that the claimant was not telling the truth. All that the appellant can say is that possibly some of the acts or omissions of the claimant were difficult to understand. However those same comments could equally have been levelled at the 7 claimant in relation to the other injury which he omitted to "do by the book" and yet there has been no doubt cast upon the truthfulness of his claim on that occasion. The issue in this case is one which must be resolved by a finding of credibility. Such a finding was made by the Review Officer and I find that there has been nothing produced to this Court on appeal which would cause me to disturb that finding. Accordingly I confirm the Review Officer's decision that the claimant did suffer a subluxation of his left AC joint and deltoid bursitis during the course of his employment with the appellant on or about 10 October 1995. For the foregoing reasons therefore this appeal is dismissed. DATED at WELLINGTON this day of 1998 M J Beattie DISTRICT COURT JUDGE Mckain.doc