TNL Motueka Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT "LD AT WELLINGTON Decision No. 12 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN TNL MOTUEKA LIMITED of Motueka Appellant (Appeal No. DCA 167/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on the 8th day of December 1998 APPEARANCE/COUNSEL D Maze for appellant A H Johnson for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to accept Cottrell's (the worker) claim as a work injury. The worker was employed by the appellant when he lodged a claim for cover with the respondent on 5 March 1997 stating that he had jarred his back while driving the appellant's truck on a rough quarry road on 20 February 1997 which had caused pain in his neck and double vision. His general practitioner, Dr T L Phillips, diagnosed the problem as "vertebrobasilar ischaemia" 2 . report from Dr Phillips dated 12 May 1997 states: "Mr Cottrell suffered trauma to his vertebrobasilar system as a direct result of a jarring injury to the neck when his truck hit a pothole. At the time of the injury he experienced headaches, diplopia and difficulty balancing. When I saw him last on 22nd April 1997 he was still experiencing 20-30 episodes of intermittent diplopia/day lasting seconds to minutes. His headache was improving but still present. He was seen by Mr Davison who concurred with his diagnosis (letter enclosed) and CT Scan was clear. Cervical spine films demonstrated degenerative changes only. Mr Cottrell experienced these symptoms as a result of the jarring injury to his neck. It would seem reasonable to suppose that, had he not experienced this injury he would still be enjoying his job. In terms of pre-existing problems that might have contributed to his problem, an aging vertebrobasilar system might be more susceptible to this kind of injury as a result of increased vascular rigidity. In a similar fashion, someone with an aging hip might be more likely to suffer a fracture as the result of a fall yet the mechanism of injury would remain an accident. I am concerned that Mr Cottrell might not be able to return to truck driving, or any non-sedentary occupation. The reasons for this are two-fold; firstly, the persisting diplopia precludes driving and secondly any further jarring injuries might cause him serious mischief. I hope that this letter helps to answer your questions. Thank you for your concern." The worker stated that he was driving on a narrow steep winding rock road between 12 and 15 kpm when the incident occurred. On 29 March 1997, the respondent notified the appellant that it considered that the worker had suffered a work injury and that the costs of the claim would be attributed to the appellant for the full amount. The appellant applied for a review of that decision. With its application for review it raised the issue that it did not consider that it was likely that the worker had sustained an injury in the manner described. The appellant stated that it considered that there were other causes which contributed to the worker's problems as he had been unwell for approximately two weeks prior to the day in question. The appellant noted that the worker was engaged in normal duties which had not been identified as being a hazard. The appellant stated that it considered that the worker may have already been injured and that the full time employment in which he was engaged may have aggravated the pre-existing injury. The worker's description of what occurred was provided by him as: 3 "I was driving a truck at the Takaka hill quarry carting rock from the bottom pit to the plant a distance of about 2km each way and a rise of over 300m. The haul road was extremely rough and as I was coming through the bottom gate I hit a hole the wrong way and hurt my neck. At this stage I was travelling at about 15 K.P.H. I experienced multiple vision and extreme pain at this time in my neck and head. I stopped until my vision cleared, a matter of probably 3 to 4 minutes and then carried on up the hill I had a glass of water and a couple of panadol. As this was at the end of the day the trucks stayed for the following day. After visiting the doctor I took the details to TNL and advised M Westrupp that the doctor had banned me from driving." The evidence as it appeared before the review officer indicated that the road in question was a private road which did not bring it within the definition of a road under the Transport Act and accordingly he classified the worker's accident as a work injury and declined the application for review. It is against that decision which the appellant now appeals. The original notice of appeal indicated that two issues were involved, being: (1) whether the road in question comes within the definition of road under the Transport Act; and (2) whether there had been a breach of natural justice. Subsequently Mr Maze raised a further ground of appeal that the medical evidence established doubt as to whether the worker's problems arose out of an accident. At the appeal hearing Mr Maze was granted leave to adduce additional evidence, part of which was a report from Mr G Skeggs, a general and vascular surgeon. His evidence stated: "1. I hold the degree of Bachelor of Medicine and Bachelor of Surgery from the University of Otago and am a Fellow of the royal Australasian College of Surgeons. I practise as a general and vascular surgeon in Nelson. I have been in practice since 1986. 2. I have perused the medical notes provided to ACC. A copy of the notes which I have perused are attached and marked "A". 3. Mr Cottrell has been diagnosed as suffering from vertebrobasilar insufficiency on the basis of symptoms of headache, diplopia and blurring of central vision. These symptoms are entirely consistent with this diagnosis. Apparently, a Computerised Tomography scan was performed which did not show any obvious brain infarction. 4 4. Vertebrobasilar insufficiency is generally the result of atherosclerosis, a degenerative aging change, but the vertebral artery is enclosed within a bone canal in much of its course up the cervical spine and therefore can be narrowed or kinked by degenerative change in the cervical spine. 5. Most often, the condition occurs in the elderly and may be a combination of both pathologies. Apparently his cervical spine x-rays do show some degenerative disease. 6. Traumatic occlusion of the vertebral arteries is very rare and generally the result of severe injury. It is, however, conceivable that a jarring or whiplash injury to the neck could provoke vertibro-basilar insufficiency but I would expect this to occur only if there was pre-existing disease in the arteries and/or the cervical spine. 7. As mentioned arteriography to further assess his circulation is not justified as it carries some risk. 8 . I believe it is not possible to prove or disprove the relationship of his symptoms to trauma. It is possible that his symptoms are coincidental to the claimed injury." Mr Johnson objected to the addition of the extra ground of appeal in relation to the medical situation and to the admission of Mr Skeggs' evidence. I indicated to Mr Johnson that the particular issue had been raised by the appellant when it lodged its application for review but the matter was not actually canvassed in any material way at the review hearing where the review officer accepted the original medical diagnosis. Mr Maze submitted that there had been insufficient time in between the appellant engaging counsel and the hearing of the review for a considered opinion to be given on the medical evidence. However, I considered that as the appellant had correctly raised the issue prior to the review, the evidence of Mr Skeggs could be adduced at the appeal hearing. I also accepted the evidence of Mr Westrupp, the Managing Director of the appellant. He acknowledged that at the time he gave evidence before the review officer he had not properly researched the issue of the nature of the road and that the evidence he had given that he thought it was a private road was incorrect. He also said that the worker had been driving trucks for approximately 40 years and he had difficulty in understanding how the injuries could have been caused by the one particular incident. Further evidence was given by Mr J Upton, the Human Resources Manager of the appellant company. Mr Upton stated that he had attended at the Tasman District Council and Land Information New Zealand where he had obtained a copy of the map which he produced which showed that the road in question upon which the worker was driving at the time was in fact identified as a legal road by virtue of s.110A of the Public Works Act 1928. 5 Mr Maze submitted that the principal ground of appeal is that the decision of the view officer was wrong because it was made on the false assumption that the road on which the worker was driving was not a public road but was private and did not come within the definition of a road under the Transport Act. Mr Johnson submitted that the quarry road was "off road" for the purposes of the definition of a motor vehicle injury because it was locked and was a private unsealed road. He submitted also that if I accept jurisdiction to consider the medical issue the fact that the worker may have had a pre-existing condition did not preclude the respondent accepting that cover should be granted. The principal issue as I see it is whether the review officer was correct in holding that the particular road was not a road within the definition in the Transport Act. Section 2(c) defines " road" as having the same meaning as in s.2(1) of the Transport Act 1962. Section 3 of the Accident Rehabilitation and Compensation Insurance Act 1992 defines a "motor vehicle injury" as: "(a) Any injury occurring as a consequence of the movement of a motor vehicle; or (b) Any injury occurring as a consequence of a motor vehicle that is stationary being struck by another motor vehicle or other means of conveyance - but excludes an injury suffered in the course of the loading, unloading, servicing, repair, or off-road use of a motor vehicle and any use of a motor vehicle other than as a means of conveyance. 'Off-road use' does not include use of a motor vehicle that is off- road as a direct result of its being out of control or its having been involved in an accident." While Mr Westrupp noted in his evidence that the road is used to cart rock from the quarry to the lime-works, local farmers also use the road. He said that on occasions the road is closed but this is for reasons of occupational health and safety when blasting is being undertaken at the quarry and at night. The gates are shut at night to keep the public away from the machinery at the quarry. Unfortunately this specific evidence was not available to the review officer who had to rely on incorrect information which the appellant at the time thought was correct. Had the true position been made available to him I am certain that the review officer would have come to a different conclusion. Having made that finding, I do not consider that it is necessary for me to go further and consider the implications of the new medical evidence which seems to indicate the possibility that the worker's condition may not be accident related. I consider that the decision of the review officer was wrong because the road in question is a legal road within the meaning of the Transport Act and accordingly the worker has suffered a motor vehicle injury within the meaning of those words in s.3 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appeal is therefore allowed and the worker's injury will be classified as a motor vehicle injury and not a work injury. 6 Having made the finding that the appeal is allowed on the basis that the road is a Public road, I do not need to consider the alternative ground of appeal in relation to the alleged breach of natural justice. There will be costs to the appellant of $850. DATED at WELLINGTON this 27th day of January 1999 A W Middleton District Court Judge Deal6798.doc(rd)