Ryans Food Market Limited T/A Balclutha New World v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 63 / 95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN RYANS FOOD MARKET LIMITED TRADING AS BALCLUTHA NEW WORLD of 90/94/0092. Balclutha Appellant (Appeal No. DCA 269/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of May 1995 APPEARANCES R Black for appellant P Zumbach for respondent DECISION OF JUDGE A W MIDDLETON This appeal is against a decision of the respondent issued on 15 August 1994 which accepted that the appellant's employee, Ms Dovey, suffered an injury at work on 1 June 1994. At the commencement of the appeal I permitted Mr Black to submit a photograph of the bag holder on which it is alleged Ms Dovey suffered her accident and to introduce a statement allegedly made by Ms Coote, an employee of the appellant. 2 The incident which gave rise to the appeal was that Ms Dovey lodged a claim on 19 July 1994 stating that she had suffered injury to her right elbow on 1 June 1994 in the course of her employment as a shop assistant in the appellant's supermarket. She claimed to have hit her elbow on a metal bag holder by the checkout counter. The declaration on the claim form was dated 4 July 1994 and the medical certificate was completed by her General Practitioner at the Catlins Medical Centre. The appellant disputes that Ms Dovey suffered a work injury. When Ms Dovey was asked to provide details of the injury a similar request was sent to the appellant. On 21 July 1994, the appellant expressed its concern that it was unaware of any incident on 1 June 1994 and also that the accident had not been the subject of a medical examination until 4 July 1994. The appellant also stated that it was surprised at the allegation because the stand alleged to have been the cause of the accident is at least 180 millimetres below elbow height. It was also concerned that its normal accident reporting procedure had not taken place nor had the Store Manager been made aware that an accident had occurred. The appellant requires an accident report form to be completed immediately upon an accident occurring and it requires notification to be made forthwith to the injured person's manager. It was also concerned that it was aware that Ms Dovey had been involved in a minor car accident on 1 June 1994 which may have caused the injuries in respect of which she sought medical attention. Ms Dovey reported that the injury had occurred when she was obtaining information in the course of her work and as she walked past the metal bag holder at the checkout counter she struck her elbow on it. She said that this occurred at approximately 11.45 am and that she reported it verbally to Ms Coote the checkout supervisor as soon as it had occurred. She stated that she was aware of the requirement to report work accidents to her Department Manager immediately after such an accident. She stated that there were no witnesses to the accident and that she had not suffered any previous similar injuries. She said that she did not seek treatment initially because there was only bruising. The respondent later received an incomplete statutory declaration, apparently made by Ms Coote and lodged with the respondent on 11 August 1994. In that statement Ms Coote said that she was the checkout supervisor and that Ms Dovey had reported to her on 1 June 1994 that she hurt her elbow on the bag holder on the checkout. While that statement is dated 1 June 1994 and is on a statutory declaration form it was not received by the respondent until 11 August 1994 and it has not been witnessed by anyone. Another statement from Ms Dovey confirmed that she had not received any injuries in the car accident on 1 June 1994. The appellant accepted that Ms Dovey was entitled to cover on the basis that she suffered a work accident. The appellant applied for a review of that decision and Ms Dovey and her respondent attended the review hearing with a representative of the appellant. Ms Dovey confirmed the statements already outlined by me which appear on the file. The Review Officer accepted Ms Dovey's statement on the basis that they were consistent with the medical report in spite of the argument on the part of the appellant that it was not possible for such an accident to have occurred because the metal bag holders could not have come into contact 269-94(rd) 3 with Ms Dovey's elbow because they were some 9 inches below elbow level. The Review Officer accepted, on the basis of Ms Dovey's statements, that the appellant had suffered a work injury. Mr Black submitted that I should look with care at the evidence because it relied solely on Ms Dovey's statement. He submitted that the General Practitioner had to rely on Ms Dovey's report as to how the injury had occurred when it could have been equally consistent with a knock to the elbow when the car accident occurred. While he sought to tender Ms Coote's statement of 12 May 1995 withdrawing her earlier statement, I explained to him that neither statement was of evidential effect because neither had been properly declared and witnessed. Ms Zumbach submitted that the issue of work injury disputes had been considered by Judge Ongley in R & W H Symington & Co (NZ) Limited v ARCIC (87/94). In that case the Judge recognised that it would be wrong for the respondent to ignore the existence of work reporting procedures, but that in making any determination on such issues the respondent should act fairly between interested parties. In a similar case, Meadow Mushrooms Limited v ARCIC (90/94) Judge Ongley indicated that the focus should be on the reasonableness of the respondent's investigations. In this case I am satisfied that the decision was made completely in reliance on Ms Dovey's statement alone when it is clear that between the time of the alleged accident at the supermarket and her attendance on her doctor she was also involved in a motor vehicle accident, albeit a minor one. Unfortunately Ms Coote did not give evidence either before the Review Officer or at the appeal so there is no evidence to support Ms Dovey's statement that she reported the incident to Ms Coote immediately after it had occurred. The appellant has also raised the doubt that because of the height of the bag holder Ms Dovey's description of the incident lacks credibility. In these circumstances, therefore, it cannot be said that on the balance of probabilities, Ms Dovey suffered a work injury. The appeal is allowed and the appellant will be entitled to reimbursement for travelling expenses to attend the hearing of the appeal. Reimbursement is to be paid at the normal rate paid for mileage by the respondent to its counsel. If the parties are unable to agree on the amount to be paid the matter can be referred to me. DATED at WELLINGTON this2 1 day of May 1995 A W Middleton District Court Judge 269-94(rd)