Tony Elmiger Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 270 198 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 TONY ELMIGER LTD DCA 259/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of November 1998 APPEARANCES: Mr T Elmiger Managing Director of the appellant Ms L Rice counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether Andrew Lever, an employee of the appellant, suffered a work injury within the meaning of section 6 of the Act. This Court having identified the foregoing as being the issue for this appeal, it became apparent that the appellant did not see it as being the issue, but rather whether ongoing 2 costs and entitlements which the claimant had made on the Corporation ought to be attributed to the appellant for the purposes of experience rating. The appellant carries on the business of a logging contractor in the Taupo Region and the claimant, Andrew Lever, was employed by it as a bushman. On 9 July 1997 the claimant suffered an injury to his left foot. The circumstances of this injury were that a large log slipped off a pile and struck him on his left foot. His foot became sore and swollen and he was taken into Taupo for x-rays. He was seen by his GP Dr Loan and the x-rays that were taken indicated that there were no broken bones. The claimant returned to work and although his foot was sore and swollen he continued to do certain duties even though at times he could not wear a boot on his left foot. On 8 August 1997 it seems that a dispute occurred at the work place between the claimant and the employer's leading hand and this resulted in the claimant handing in his notice. It was after this incident that the claimant made his claim to the Corporation for cover under the Act in respect of his work injury of the 9th July. Following the lodging of the claim by the claimant, the employer was duly notified and was requested to signify that it accepted that this was an injury that had occurred at work. The appellant responded to that request by advising that it did not accept the claim. Its letter stated: "This claim is not relevant to the first accident on 9 July 1997. On 9July 1997 when Andrew hurt his foot he was brought into town for an x-ray. There were no broken bones, just badly bruised. He has continued to work as normal since then, operating a crane on our harvester so that his foot could be rested. 3 On 8 August 1997 he was asked to work on the skid, he then had a difference of opinion with our leading hand and walked off the job. That evening he phoned Tony and handed in his notice. Tony told him to cool down and have the weekend off to think about it. We heard nothing more from him until we received an employee earnings certificate to be filled in for ACC. We have since contacted Andrew and have received a fax copy of the medical certificate and feel he is very capable of working as he did after the injury." Taking the above points into consideration there seems to be a bit more than meets the eye and feel this claim is not relevant to the first injury on 9 July 1997." Further particulars of the injury were sought from the claimant's GP and his GP referred him to James Fenton, Orthopaedic Surgeon, for a report. That report dated 29 September 1997 stated: "I think this lad's problem is soft tissue, ligamentous strain secondary to the blow to his foot. This can sometime take a considerable period of time to settle but should gradually improve." By letter dated 10 February 1998 the Corporation advised the appellant that it was accepting the claimant's claim for cover as a work injury, it stating that its decision to do so was based on the advice from Mr Fenton that the claimant's claim was related to his injury of 9 July 1997. The appellant sought a review of that decision stating in the application for review that although it acknowledged that the claimant had suffered an injury, it was not affecting his ability to work and that he had in fact worked for some four weeks after the date of the injury. The notice said that he was quite capable of carrying out alternative duties. 4 The Review Officer considered that the issue before him was whether the appellant had suffered an injury at work on 9 July 1997 and it was his decision that the medical certificates and acceptance by the employer of the fact that an injury had occurred to the claimant's left foot whilst he was at work meant that the decision must be that the injury for which the claimant claimed cover was indeed a work injury within the meaning of section 6 of the Act. The appellant lodged an appeal against that decision again contending not so much that the claimant had not suffered a work injury, but rather it was disputing the claimant's ongoing claims for which it, the employer was being held liable, or which it would be held liable under the experience rating provisions. At the hearing of this appeal Mr Elmiger acknowledged that his concern was the ongoing potential liability of his company for claims by the former employee which may not be attributable to the injury of 9 July 1997. It was that issue which he sought to address at the hearing of this appeal. He was questioning the incapacity of the claimant having regard to his demonstrated ability to resume working after the date of the injury. He further mentioned that the claimant used a dispute over work tasks to leave the job and then make his claim for weekly compensation. In response to these matters Ms Rice, counsel for the respondent, submitted that the appellant's right of review and appeal is limited by the provisions of the Act to the question of whether or not the Corporation was correct to accept the claim as a work injury. She further submitted that if the appellant wishes to challenge the cause of ongoing incapacity and matters connected with ongoing claims then that was a separate issue which would need to be taken up as and when the Corporation made a primary decision as to whether the claimant's claim was a qualifying claim for ongoing attributing and experience rating. Those decisions had not yet been made. The Relevant Statutory Provisions applicable to this appeal are as follows: "Section 6(1) of the ARCI Act provides, inter alia: 6. Definition of "work injury"--- (1) For the purposes of this Act, "work injury", in relation to any person, means personal injury arising out of and in the course of employment of that person ..." Section 65(6) of the ARCI Act provides: 5 Acceptance of work injury claims -- (6) Where a work injury claim has been lodged and there is a dispute as to whether or not a work injury has occurred, or the employer refuses to supply a work injury report when so requested, the Corporation shall determine the matter and advise the parties in writing of its decision. Section 89 of the ARCI Act provides , inter alia: 89 Application for review --- (1) Any claimant (or the representative of any deceased claimant) who is dissatisfied with a decision of the Corporation in respect of his or her claim or entitlement under this Act may apply to the Corporation for a review of that decision. (2) Any employer who is dissatisfied with a decision of the Corporation under section 65 ... of this Act may apply to the Corporation for a review of that decision. . .. (4) Any person who is dissatisfied with any decision of the Corporation relating to any premium payable or claimed to be payable by that person under this Act may apply to the Corporation for a review of that decision; but no such right shall exist under this Act in respect of the determination for the purpose of the Income Tax Act 1994 of the assessable income of any person. 6 DECISION The appellant does not dispute the fact that the claimant, Mr Lever, suffered an injury to his left foot when a log fell on him during the course of his employment with the appellant on 9 July 1997. There is no dispute that the appellant was taken from the scene of the accident to his doctor in Taupo where he was examined and x-rayed. His foot was swollen and bruised but the x-rays did not disclose any fracture. The evidence further establishes that the claimant returned to work and thereafter worked in various capacity with his left foot still giving him trouble and on occasions preventing him from wearing a work boot. The fact of his limitations as to work tasks he could perform were known to the employer and the employer sought to make alternate arrangements accordingly. The claimant ceased work on the 8" of August and thereupon sought further medical attention and advice. That advice had been that he was unfit for work for the period he was off work and there were medical certificates certifying his unfitness for work. He has received weekly compensation. It is this latter aspect which is the concern of the appellant and it is a decision on the claimant's entitlements which the appellant is seeking to dispute. I agree with Ms Rice's submission that the appellant cannot call upon this Court in this appeal to determine the issues it would like determined. The appellant as employer has limited rights of appearance and appeal under the Act and it is given specific rights under section 65(6) to dispute whether or not a work injury has occurred to one of its employees. Under section 89(2) it has the right to seek a review of any decision made under section 65(6). Under the general appeal provision, it has a right of appeal against a decision made under section 89(2). Thus, the only issue which the appellant can require the Court to determine is whether the Corporation was correct to rule that the injury suffered by Mr Lever on 9 July 1997 was a work injury. As has been noted the fact of him suffering an injury has never been in dispute and therefore the result of this appeal is a forgone conclusion. 7 This Court is not able within, the confines of an appeal against a decision under section 65(6), to widen the scope and look at the correctness or otherwise of any ongoing entitlements or payments made under the Act to the employee. It is to be noted that section 89(4A) specifically states that an employer does not have such a right to question any decisions relating to entitlements of an employee. Section 89(4) of the Act does give the employer a right of review and appeal against the decision of the Corporation relating to any premium payable or claimed to be payable under the Act and this appellant would be so entitled to seek review, and if necessary, appeal when and if such a decision relating to any premium that may be fixed includes the claim of its employee, Mr Lever. However, as yet no such decision has been made and therefore no such rights of review or appeal have arisen. In summary then, the issue which is before this Court is not the issue which the appellant seeks to have considered. The issue which it seeks to have considered has not yet been determined by the Corporation and therefore no rights of review have yet arisen in respect of it. The appellant will receive appropriate notices from the Corporation regarding its liability for premiums claimed to be payable and that notice will give advice of rights of review. It will be at that time that the appellant can exercise that right should the primary decision made by the Corporation be one with which it does not agree. For the purposes of this appeal, this Court confirms the decision of the Review Officer that the claimant did suffer a work injury on 9th July 1997. This appeal is therefore dismissed. DATED at WELLINGTON this 15" day of December 1998 M J Beattie District Court Judge Elmiger.doc(gm)