University of Otago v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 332 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN UNIVERSITY OF OTAGO Appellant (Appeal No. DCA 114/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 2nd day of November 1999 APPEARANCES/COUNSEL I S Alsweiler - advocate for appellant M B Mccarthy for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the costs associated with the claim of the appellant's former employee, Mrs K Brook, should be attributed to the appellant. Mrs Brook was employed in a secretarial position by the respondent and after suffering an onset of pain was diagnosed by her general practitioner as suffering an overuse injury, being "radioscaphod legimentos strain to the right wrist". Mrs Brook completed a claimant questionnaire in which she attributed her problems to her work as "computer operator with a lot of graphic mouse work". The appellant also completed an employer questionnaire in which it acknowledged that the injury was related to the employment task. The respondent accepted that Mrs Brook had 2 suffered a work related injury. Mrs Brook resigned from her position with the appellant on 19 April 1996 and on 22 April 1996 commenced employment with another employer. After the claim for cover was accepted Mrs Brook lodged an application for home help because she found that after doing the slightest housework her wrist began to throb and she could not hold anything in her hand. On 31 May 1996 the respondent notified Mrs Brook that she was entitled to home help. Thereafter medical certificates and home help assessments were provided throughout 1996 and 1997. The certificates recognised Mrs Brook as suffering from trapezius or forearm strain with pain in the neck, right shoulder, arm, wrist and fingers. In March 1997 Mrs Brook advised the respondent that because of her ongoing condition her hours of work were restricted to four per day. The respondent then arranged for her to undergo a vocational assessment. Because it was concerned that her condition had then deteriorated, a vocational assessment report of 12 April 1997 indicated that the assessor was unable to identify any factors to account for the deterioration in the claimant's condition but that it may have been associated with her work. When Mrs Brook advised it of her restricted hours of employment the respondent met with her because of its concern about the financial viability of the restricted hours. The result of that meeting was a decision to provide "makeup" pay. On 3 June 1998, the appellant questioned the respondent as to why Mrs Brook was continuing to receive an entitlement for an injury which appeared to have been somewhat minor. On 7 August 1998, the respondent notified the appellant that the claim costs for the 1997 premium liability year would be attributed to the appellant for the purpose of experience rating. The appellant applied for a review of that decision. The review officer concluded that the experience rating assessment issued to the appellant correctly attributed the ongoing costs to the appellant as these were qualifying payments associated with a qualifying claim. Mr Alsweiler submitted that while the appellant had to accept liability because unknown to it, its employee had accepted on the employer's questionnaire that Mrs Brook had suffered a work injury while in the employment of the appellant. However, his principal concern was that what appeared to be a minor injury should incur costs which had increased from $1,295 for the year ending 31 March 1997 to $20,687 for the year ending 31 March 1998. He submitted that it was clear that while the injury had not caused any major problems to Mrs Brook in the first year for some inexplicable reason the problem had substantially increased in the following year. He submitted that the appellant was concerned that in relation to the nature of the injury, the costs appeared to be excessive. Mr Mccarthy submitted that the appellant had accepted that Mrs Brook suffered a work injury while in its employ. He submitted further that the respondent was bound to follow the medical evidence which established that Mrs Brook had continued to suffer the same condition throughout the period involved. He submitted further that within the principles under the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993, the costs of Mrs Brook's claim came within the definition of "a qualifying payment" and were thereafter properly attributable the 3 appellant's work history. He submitted that the appellant has provided no evidence which would establish that Mrs Brook's condition and her previous employment tasks were not linked to her work with the appellant. As I explained to Mr Alsweiler at the hearing, it could not be denied that the appellant had accepted that Mrs Brook had suffered a work injury which must result in the costs of the claim being attributed to its work history. He conceded that that was so but that the concern of the appellant was the quantum of the costs. In answer to my question he said that he had endeavoured to ascertain from the respondent how the costs had been incurred but had received no response to that request. I consider that the appellant is entitled to know how the costs actually came about. I agree with Mr Alsweiler that the respondent should have met with him in response to his request for information on that issue. I trust that the respondent will now accede to that request. However, as I explained to Mr Alsweiler the appellant accepted that a work injury had occurred and the result is that the costs of the claim are properly attributable to its work history. The appeal is dismissed. DATED at WELLINGTON this 16 th day of November 1999 A W Middleton District Court Judge Dca1 1499.doc(rd)