Tavita v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No 245 198 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to s 91 of the Act BETWEEN TANYA TAVITA (DCA 249/98) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD ON: 2 October 1998 APPEARANCES: Ms T Tavita in person Mr D Tui Counsel for Respondent RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether the injury sustained by the appellant is personal injury by accident within the meaning of the Act. Background On 3 February 1998 the appellant aged 24 lodged a claim for cover under the Act in respect of an injury said to have occurred on 29 January 1998. 2 The claim form submitted by the Appellant stated: "Woke up in the morning with sore left side of neck after sleeping funny." The diagnosis given by the doctor from Pasifika Healthcare was cervical spine dysfunction and recommended physiotherapy/osteopathy. The appellant was given physiotherapy treatment and in a report to her doctor the Physiotherapist stated: "Slow progress so far. Range of movement has improved. However Tanya is still getting a lot of neck pain L side and intermittent headaches. The L lid cervical area is very tense and tender. I have tried to mobilise the L facet joints of C2/3/4/5." In her claim for entitlements to medical expenses and loss of earnings the appellant stated that the cause of her injury was her "sleeping position". In a subsequent statutory declaration the appellant stated: "While in bed I twisted my neck resulting in injury to the left side of my neck." In a letter dated 10 February 1998 the Corporation advised the appellant that her claim for accidental injury suffered on 29 January had been accepted. She thereupon went ahead and sought treatment. However it seems that the claim was reconsidered, as by letter of 31 March 1998 ACC at Henderson, to whom the claim had been referred, advised the appellant that her claim was declined as her injury did not constitute "personal injury" insofar as that term is defined in the Act. The appellant sought a review of that decision. At the review hearing much of the evidence which was given there appears to be irrelevant to the central issue of whether the appellant is entitled to cover, it being concerned rather with the way in which the appellant believes she was treated by the Corporation and the length of time that it took to notify her of declination initially having accepted the claim. Further, the appellant contended that she was unable to get any answers from the Corporation about payment of her medical expenses. 3 In essence the appellant was very annoyed and upset at the way she had been treated by the Corporation. This annoyance was compounded by the fact that she had given up work because of this injury to get treatment. She said that she would have "soldiered on" if she had known she was not going to receive cover and be compensated for time off work. Insofar as the circumstances of the injury are concerned the appellant simply stated that the accident occurred in her sleep, she does not know how it occurred, she simply woke up with a sore neck. There is no suggestion that she fell out of bed or struck her head on anything. The Review Officer considered that evidence in the light of the definition of "personal injury" and "accident" and ruled that the appellant had not suffered personal injury by accident as those terms are defined in the Act. The appellant has appealed to this Court against that decision and again before this Court she was at pains to point out how she felt she had been unfairly treated by the Corporation, particularly as to its delay in reversing its decision after initially agreeing that she had cover. She again referred to the loss she had suffered by giving up her job, something she said she would not have done if she had known sooner that she was not going to receive cover. At the hearing before this Court the appellant confirmed the circumstances of the injury as previously stated and the truth is that she really has no knowledge of how it occurred. Mr Tui for the respondent submitted that the facts of this injury do not bring it within the definition of personal injury by accident, particularly the definition of accident which requires a specific event or series of events involving the application of a force or resistance external to the body that results in injury. He submitted that there was no evidence of any application of force or resistance external to the body and therefore there was no cover. Decision This claim calls for a consideration of the definition of personal injury by accident as it is only such an injury that is covered by the Act pursuant to s.8(1)(a). "Accident" is defined under s.3 of the Act and means "a specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events." There is no question that the medical evidence establishes that the appellant has suffered personal injury as that term is defined under s 4 in that she has suffered a physical injury, namely cervical spine dysfunction. However the issue is whether that personal injury was caused by an accident as is required under s.8(1)(a). This Court recently had to consider this question in circumstances not too dissimilar from the circumstances of this appellant in its decision in Stephens (196/98). In that case the claimant was climbing some stairs and turned suddenly and the twisting motion which he carried out caused disc herniation and a compression of the right L5 nerve route. In that case I stated: "The definition of "accident" in the Act requires that there be the application of a force or resistance external to the human body. It matters not that that force or resistance is natural or artificial. Being struck by a bolt of lightning would be considered no differently than electrocution from contact with a live wire. Furthermore that external force or resistance can be applied by the injured person himself or through some external agency, animate or inanimate. The common thread that must exist is that the source of the force must come from without and not within the human body of the injured person. ... In this present case the law of gravity is entirely neutral." In the present case there is no evidence of any force or resistance external to the appellant's body which caused the injury, and as in the Stephens case, it is more likely to have been an interaction between two parts within her body caused by the particular posture that she adopted during her sleep that night. In addition to the question of whether a force external to the body was applied there is the other aspect as to whether it was a specific event or series of events. As much as this Court can determine the appellant went to sleep and some hours later woke up with the sore neck. In those circumstances there does not appear to have been an event which caused that sore neck, rather it would seem to be a gradual process, which is specifically excluded from the definition of accident, unless of course it is an employment related matter in which completely different considerations apply and these have no relevance to the present case. On the facts of this case I find that the appellant's personal injury did not arise from an accident as that word is defined in the Act and therefore the appellant is not entitled to cover in respect of that personal injury. This decision is the extent to which this Court can venture in this particular appeal and the criticisms which the appellant raised at the manner in which her claim was handled by the Corporation can not be the subject of any order or determination by this Court. For the reasons given this appeal must be dismissed. DATED at WELLINGTON this 27" day of November 1998 MJ Beattie District Court Judge Tavita.doc