South Pacific Tyres Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 5 197 HELD AT WELLINGTON 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 SOUTH PACIFIC TYRES LTD Appellant (Appeal No. DCA 47/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the day of 18 November 1996 D A Rennie for appellant T P Cleary for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against a determination on review that Mr B E Cross, an employee of the appellant, suffered a back injury at work on 26 March 1993. The claimant was working in the appellant's plant at what is known as a Banbury table, in the process of manufacturing motor car tyres. Part of his employment task involved cutting a quantity of raw rubber material and lifting it to a table, so that the claimant repeatedly performed a lifting and turning motion. The claimant alleged the material weighed about 30 kilograms, but it seems to be amply established that it in fact weighed about 10 kilograms. On the day in question, he complained of pain in his back. He did not stop work and did not fill in the accident report form required by his employer in the event of a work accident. He continued on to complete his shift, and immediately worked another consecutive shift. That day was a Friday. - 2. He did not work for his employer in the weekend, and he returned on Monday and carried out another double shift of 16 hours. Apart from the complaint which he made during the first shift on Friday, there was no record of his complaining of pain or being unable to work on either of those two days. He telephoned on the following day to say that he could not work because of back pain. He then consulted a medical practitioner and made an accident compensation claim on 30 March 1993. He was duly diagnosed with a collapsed vertebrae and he underwent a laminectomy. Following that he suffered a heart attack and he never returned to work. The Corporation's file indicates areas of disputed fact concerning such matters as the degree of pain that the claimant experienced on 26 March 1993 and whether he had recently attended the employer's staff doctor or nurse. The Corporation received medical opinion that the injury was consistent with having been caused in the circumstances described by the claimant. The employer did not dispute that he had complained of pain, but pointed to other circumstances that indicated the pain was fleeting and of little consequence. It also raised the question that the claimant's non-employment activities involved a small farm holding where he lived and worked. It was suggested that he could equally well have injured his back in the course of non-work activities and that there was little ground to classify the injury as a work injury. For example, he may have sustained the injury before 26 March and later experienced pain from the injury when working. It is possible that the pain was not contemporaneous with the injury and the injury may have occurred after 26 March. The appellant was particularly concerned that it had no opportunity to have Mr Cross examined soon after the injury occurred, but leaving that aside, it submitted to the Corporation that there was no reason to suppose that the injury occurred during the course of employment rather than in the course of the claimant's non-work activities. The question of a gradual process injury was not considered. The Corporation dealt with the claim as a single event injury. The proceedings have been plagued by an unresolved procedural question concerning the status of the employee in the review proceedings between the Corporation and the appellant. A review officer issued an interim decision on 12 April 1994. He referred to s 90(4) of the Accident Rehabilitation and Compensation Insurance Act 1992 which directs that the applicant and the Corporation shall be heard, but which does not oblige a review officer to give a right of audience to an interested party other than the applicant. The review officer gave some directions, contemplating that the Corporation would call Mr Cross as its witness. He addressed the concerns of the employer regarding difficulty in obtaining disclosure of Mr Cross' medical history and he reserved the applicant's right to apply for further directions. Before the review was set down for hearing, Mr Cross gave the Corporation written authority to release the medical information on its file. The employer requested further information, particularly medical records concerning the symptoms and treatment of the employee's back during a period of about three years. On 17 October 1995 another review officer issued a memorandum giving his opinion that the claimant was entitled to be present at the review hearing and to be - 3. separately represented. The claimant's solicitor then briefed evidence and attended, with the claimant, at the review hearing which took place on 13 December 1995. At that hearing a different review officer declined to allow the claimant to be represented as a party to the review. The claimant and his solicitor then withdrew and the hearing proceeded without them. The Corporation was not represented. In his decision, the Review Officer noted that the outcome had no bearing on the claimant's entitlement to future compensation. He outlined the available evidence and stated the issues to be whether the appellant paid the claimant first week compensation and whether the injury should be regarded as work related. He determined the first issue in favour of the appellant for the reason that Mr Cross failed to attend the appellant's nominated medical practitioner for examination. There is no appeal against that finding. Concerning the second issue, he said it concerned only whether the claimant did suffer a work injury as claimed on 26 March 1993. He referred to the statutory definitions and then said: "It is clear from the evidence that Mr Cross did suffer a back injury at work on 26 March 1993. The fact that he continued working that day, and in fact again on the following Monday, does not negate the fact that the injury occurred. That all reporting procedures were not followed by Mr Cross does also not deny his claim from being work related. Taking all the facts into account, and on the balance of probabilities, I agree with the Corporation that Mr Cross' injury should be treated as work related." I agree with Mr Cleary's submission that in a sense Mr Cross is the only person who can confirm whether he suffered an injury, as there were no external signs and he did not require first aid when the episode occurred. He submitted that the review officer found that his version of events was not discredited and there are no major inconsistencies which require that view to be overtaken on appeal. There is no evidence to support the appellant's view that the occurrence was merely a symptom of an existing condition, or that it did not occur at work during the days leading up to his incapacity on 30th March. A difficulty is that the findings of the Corporation and the Review Officer appear to rest largely on assumptions. There is no precise history recorded from the claimant. There is no medical opinion of causation explicitly based on the complainant's account of what happened on 26 March. There is a dearth of real evidence, although there is a superficial appearance of probability that the injury is work related. The opportunity to remedy the defect, at least to the extent of hearing the claimant's version of events, was lost when the claimant was denied a right of representation at the review hearing and left without his evidence being heard. The Review Officer was not explicit in his reasons for concluding that the Corporation's decision was correct and the overwhelming impression from the material before the Court is that it has been assumed that because the claimant experienced pain on 26 March 1993 and later suffered acute symptoms of a displaced vertebrae, the painful episode was probably the onset and the injury. That may well be true, but my examination of the file does not disclose that any doctor has ever plainly said so. - 4- In the absence of supporting medical opinion, it is not a conclusion that should be drawn. The possibilities suggested by the appellant find even less support in the evidence. That is probably why the Corporation and the Review Officer reached the same conclusion. In my view the conclusion is based on a wrong principle, in that it is an answer to a medical question which has been reached without the assistance of expert medical opinion. There is one note on the file which supports the Corporation's view. A memorandum of 21 July 1993 was directed to the Corporation's Branch Medical Officer, Dr Keir Howard in the following terms: "There is a work injury dispute on this claim. Basically the employer believes the claimant should have seen the company doctor at their request, and since he would not, they are not prepared to accept the accident as work related. I have spoken to ... and he thought you should have a look at the file and see what you think." The reply was: "I believe the history of this man's back problem is consistent with the nature of his work. Heavy lifting associated with twisting of the spine may result in lumbar disk injuries. I cannot see how the company can avoid this issue and whether the man saw the Co. Doctor or not does not remove the injury. Clearly this is sufficiently serious as to require a laminectomy ..." That note confirms that the injury was consistent with a work injury because of the nature of the work. It does not exclude the possibility of a non-work injury and it does not deal with the questions raised by the claimant having continued work uninterrupted for the remainder of his double shift and again on the following Monday. Dr Keir Howard's opinion went no further than to confirm that the injury could have been caused by a work accident of the kind described by the claimant. It cannot be assumed that Dr Keir Howard considered all the circumstances that have now been disclosed, and his memorandum did not deal with the possibility of a non- work accident. Acceptance of the claim as a work injury is a decision affecting the Corporation, the claimant and the employer. As between the Corporation and the claimant the matter is satisfactorily resolved, but it does not follow that the onus of showing the injury was not a work injury then rests entirely on the employer. If the Review Officer had reached a decision on the basis of adequate evidence and a correct view of the law, the employer would have to persuade the Court to reverse the decision on appeal. However, in this case, where there was no real evidence before the Corporation or the Review Officer sufficient to resolve the question that is disputed by the employer, the question now on appeal is at large. The Corporation carries the substantive allegation that this was a work accident affecting the appellant's experience rating. The burden of proof therefore lies with the Corporation and I find that it has not been discharged. - 5- Of course, it would have been preferable for the question whether there was a work injury to have been determined at a hearing where the claimant was sworn and examined. A proper determination cannot be made without weighing the claimant's evidence of the sensation he experienced on 26 March 1993 and his physical state before and after the event. That evidence has been collected, not by sworn testimony, but by the claimant's explanation written on the M46 form and Dr Morrison's C15 certificates. It has remained undisturbed, without further enquiry, in the course of whatever inquiries were made to advance medical treatment. A rehearing of the review would enable an opportunity for the relevant evidence to be considered. However, I agree with Mr Rennie's submission that a rehearing would not be in the interests of justice after the appellant has now advanced the relevant issues for some considerable time and the Corporation elected not to be represented at the review hearing. In my view, the Corporation had the responsibility of referring to evidence at the review in order to establish the correctness of its decision affecting the appellant's experience rating. It did not do so, but decided to abide by the Review Officer's decision. The Corporation is not directly responsible for the claimant leaving the review hearing without giving evidence, but it would be contrary to justice to order a rehearing in order for the Corporation to now take a different approach. For those reasons, the appeal is allowed. The appellant will have costs of $800. This issue is determined only between the Corporation and the appellant. The outcome of this appeal has no effect on the claimant's right to compensation. DATED at WELLINGTON this 23RD day of JANUARY. 1997 D A Ongley District Court Judge