R & W H Symington (NZ) Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 131 /95 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 R & W H SYMINGTON (NZ) LIMITED 69- 94- 0100 Appellant (Appeal No. DCA 193/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of September 1995 APPEARANCES MS F I O'Malley for appellant Mr N Morrison for respondent DECISION OF JUDGE D A ONGLEY Counsel for the appellant was compelled to concede that this appeal must be dismissed. The appellant wished to raise a question of assessment of experience rating which is done under s 104 of the Accident Rehabilitation and Compensation Insurance Act 1992, but the Review Officer's determination related to a different question, namely whether an injury suffered by an employee was a gradual process injury as defined in s 7 of the Act. The appellant was not able to advance any convincing argument on that question and indeed had acknowledged that the injury fell within s 7. The employee, a Mrs CL Batt, had commenced employment with the appellant on 4 August 1987 after stating in her employment application that she was in good health. She had developed carpal tunnel syndrome in about 1985 following pregnancy and had bilateral surgical releases done. According to a report by Dr Wigley she had never completely recovered from tiredness and aching at the wrists. She lodged a claim for repetitive strain injury on 19 March 1993 after working for Symingtons for over five - 2 - years. At first the appellant declined to accept that the injury was caused by gradual process arising out of and in the course of Mrs Batt's employment at Symingtons on grounds that the employee had informed supervising staff that the pain was a consequence of an earlier condition. On 6 December 1993 the Corporation issued a decision classifying the injury as a result of work related accident and the appellant appealed against that decision. At the review the appellant conceded that the employment tasks had contributed to Mrs Batt's condition but said that the process of review was the only way to contest liability under the experience rating criteria. The thrust of the appellant's argument was that the appellant should not be liability because of the employee's failure to disclose a pre-existing condition of a similar kind to the injury that occurred later in the course of her employment. The Review Officer contacted the employee who advised that she was not experiencing any repetitive strain injury symptoms when she commenced employment, and was not affected by symptoms until she had been working for the appellant for four or five years. There is a conflict between that statement and the opinion of Dr Wigley. The Review Officer correctly applied the criteria in s 7(1) which are as follows: "(a) ... the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non- employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment." The employer has an understandable complaint about its liability for increased experience rating because it would not have employed Mrs Batt in particular kinds of work if her medical history had been disclosed. The employee has an express right of review under s 89(4) of the Act if it is dissatisfied with any decision of the Corporation relating to any premium payable or claimed payable. That is the course which should be taken once the Corporation demands payment of a premium weighted against the appellant by virtue of the cost of Mrs Batt's work injury. The appellant is now aware that is the appropriate course and this appeal is dismissed. DATED at WELLINGTON this 6 th day of November . 1995 D A Ongley District Court Judge