Hawera v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 8 7 195 HELD AT TAURANGA 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 57 94 / 3205. BETWEEN TE WHETU MARAMA HAWERA Appellant (Appeal No. DCA 139/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of August 1995 APPEARANCES Appellant in person Mr A E Howman for respondent DECISION OF JUDGE D A ONGLEY The question on this appeal was whether the appellant suffered a work injury within the meaning of s 6 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant lodged a claim upon the Corporation on 12 December 1994 for an injury to her back. The claim form was filled out by a doctor and it stated that the injury was caused by "lifting heavy piles of plates and tables at work (end of shift)". The date of injury was given as 2 December 1994. The Corporation accepted that the injury was a work injury and the employer applied for review. Mrs Hawera did not attend the review hearing. In a decision on 31 May 1995 the Review Officer found that the injury was not a work injury and Mrs Hawera then appealed to this Court against the Review Officer's decision. - 2 - Mrs Hawera was employed as a cashier at the Otumoetai Trust Hotel up to December 1995. Her duties included assisting with setting up for dining and functions. At the end of shifts the rooms would often have to be set up for a function the following day. If trestle tables and chairs were to be moved, that work would be done once Mrs Hawera and other staff had finished their other tasks. There was a trolley for moving stacked chairs but sometimes staff would move stacked chairs without the trolley and they would also move fairly heavy trestle tables, sometimes on their own and sometimes with another staff member. Mrs Hawera did that kind of work and on one occasion she experienced pain which abated the following day. She returned to work and she said that the pain continued but she rested up on her day off and was able to work again. She saw her doctor on 12 December 1994. After she lodged her claim with the Corporation Ms A Stewart furnished an employer's report in which she stated she did not accept that the injury was work related because Mrs Hawera had continued to work on 2 December and for another five shifts before she had telephoned to advise that she could not continue her rostered shifts. She said that Mrs Hawera had not entered the occurrence in the work accident book. On 1 February 1995 Mrs Hawera wrote to the Corporation stating that she had no previous back trouble and that she was still experiencing discomfort and undergoing physiotherapy. She said that the pain had progressed over a period of time prior to 2 December after it was triggered by a Sunday evening function set up on either Sunday 20 November or Sunday 27 November 1994 when she moved trestle tables single handedly. She thought that Mrs Renton would remember the occasion because she had ended up assisting Mrs Hawera. She said that she did not know of the work accident book. On Friday 10 December she went home to bed with her backache and by next morning the pain had increased so she contacted work and said she would not be in. She resigned by sending a letter on 23 December in which she gave as a reason that selected duties were not available to her. She had discussed selected duties with Ms Stewart but the meeting had ended in disagreement or misunderstanding. The employer applied for review of the Corporation's decision giving reasons that no mention was made of the alleged injury over a two week period and that Mrs Hawera's story was inconsistent and to dates and personnel she might have told about it. Mrs Hawera put her submissions to the Review Officer in the form of a letter covering much the same ground as her earlier advice to the Corporation but she was more specific about two discussions she had with other staff members. She said she had mentioned her back pain to a Ms Steiner. At the review hearing the employer produced three letters from staff members (not including Ms Steiner) to state that Mrs Hawera had not mentioned back pain to them. One letter stated that on 9 December Mrs Hawera had left work saying that she was going to work in the gardens on her marae the following day. In allowing the appeal, the Review Officer made particular mention of the facts that Mrs Hawera had not obtained a statement from Ms Steiner, that her claim form (based on information she had given to her doctor) stated the accident occurred on 2 December, and that she had felt well enough to contemplate gardening when she left work on 9 December. Although there were some minor errors that Mrs Hawera pointed out on the hearing of this appeal, I would have to say on the evidence available to the Review Officer his - 3 - decision was reasonable and it could not be said that it was based on any wrong principle or against the weight of evidence. If Mrs Hawera had been at the review hearing the outcome might have been different. She was given leave to give evidence at the appeal which is a hearing de novo. The employer brought along the three persons who had provided letters to the Review Officer in case their oral evidence should be required. Mrs Hawera presented a thorough and helpful written submission dealing with a number of points arising from the Review Officer's decision and from the transcript of the review hearing. It is unnecessary to traverse that material in detail but only to deal with the essential points. Mrs Hawera's evidence should not be expected to be entirely consistent with the accident claim form because it was filled out by her doctor and according to Mrs Hawera the date 2 December 1994 was the date Mrs Hawera told the doctor she would first have mentioned the claim to anyone. She explained the progress of the injury, beginning with a dull ache and easing intermittently during her days off on Monday and Wednesday of the following week. After that it became persistent and it was probably on Friday 2 December that she mentioned it to Ms Steiner. She said that after the decision on review she had tried to locate Ms Steiner for purposes of the appeal, but without success. She said that when she left work on 9 December she did intend going to the marae because she was the secretary, but she did not intend gardening. She agreed she had said that she was attending the working bee and in fact she intended going to her daughter's home at Te Puke that night and going to the marae in the morning. In the event, she said that when she got home and had a shower she realised that she was not fit to go to Te Puke and she then went to bed. She said that the only reason she resigned was because of her back pain. Her letter of resignation said "As selected duties are not acceptable to you as clearly stated, I am unable to give two days notice as required". She said that referred to the fact that she could not reach an agreement with Ms Stewart about selected duties and that the employer needed an able bodied person to assist with moving trestles and chairs when required. She said that her husband had just been made redundant and she needed the job but she felt it fair to resign and enable the trust to employ a fully fit person. As a matter of impression, of Mrs Hawera appeared to be a person to be believed on oath. She appeared to be a stoical person, consistent with her evidence that she tried to continue working and did not complain about her back except to mention it once. She was clear that the onset of her back pain occurred when she was lifting trestle tables. Her doctor accepted that was consistent with a work injury. Her evidence helped to explain why the employer was not aware of the injury and was sceptical about her claim to have suffered it at work. She has now recovered and is no longer receiving compensation. I have had the advantage that the Review Officer did not have of hearing Mrs Hawera's evidence and I am satisfied that it is more probable than not that the injury arose out of and in the course of employment within the meaning of's 6 of the Act. - 4 - The appeal is allowed. Mrs Hawera did not incur costs of representation and there will be no order for costs. DATED at WELLINGTON this 18~ day of August 1995 D A Ongley District Court Judge