Waitomo Media Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 268 198 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 WAITOMO MEDIA LTD DCA 238/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of November 1998 APPEARANCES: Mrs F Rawlings Director of appellant Mr JD Palmer counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to accept a claim for cover by Rebecca Sutton under section 7 of the Act in respect of a gradual process injury arising from her employment with the appellant. N BACKGROUND The appellant is the publisher of the Waitomo Newspaper. The claimant Rebecca Sutton, aged 23 at the material time, was employed by the appellant at its Te Kuiti office as a Receptionist-Clerk. She had commenced her employment with the appellant in August 1995. On 21 July 1997 the claimant lodged a claim for a strained neck and thoracic spine dysfunction. The date of the injury was stated as being 20 March 1997 and the claim form stated that the injury was caused by "New work position of desk - strained neck and left shoulder from reaching". The claim was treated as a gradual process claim under section 7 of the Act and questionnaires were therefore sent to the appellant, as the employer, and to the claimant's GP, Dr Farnell. The employer disputed the claim that her injuries had been caused during the course of her employment, contending that her work tasks were light duties and the claimant herself had contributed to her condition, those factors being an old bed, poor posture and considerable increase in weight. The medical questionnaire stated that her injury had been caused by reaching and that this had occurred since her work station had been re-designed. Her doctor indicated she had no prior history of this condition. After considering the evidence, the Corporation advised the appellant on 19 November 1997 that the claimant's claim for cover under section 7 had been accepted. The appellant sought a review of that decision. At the review hearing, the Review Officer considered it desirable that further medical evidence be obtained for a proper determination to be made under section 7 and to that end the claimant was referred to Dr Freeman, General Surgeon. In his report dated 13 March 1998 Dr Freeman stated: "I offer a few random comments about this case. The photographs of the work station is interesting. It seems to me to be designed deliberately to enable the operator to engage in a number of activities in the seated position. Frequent reaching would be one of these activities. Noting the temporal relationship between the onset of the claimant's condition and the time of redesigning of the workstation one would be hard-pressed to deny a cause and effect association; particularly as the reaching involved and shoulder area tendonitis are compatible. I often find it interesting to see some of the reasons given in attempting to refute claims of this kind. In this case the employer appears to be suggesting that had the claimant gone about her work in a different manner the condition would not have arisen. This seems to suggest that claimant's work and the claimant's condition. The associated factors mentioned (sleeping posture, weight alteration and gym work) may have contributed to the condition but in an aggravating as opposed to a causation manner. If anything, swimming is likely to have had a soothing rather than an aggravating effect. I would say that any effect by these factors, if in fact they operated, would not have altered the situation in a material way. One can only say that in the office environment persons required to operate in the manner described in this case do have a significantly greater risk of such injury than those not so engaged. I do not think that an occupation medicine specialist could contribute anything useful to this discussion." 4 The appellant was given the opportunity of commenting on Dr Freeman's report. Mrs Rawlings contended that how the claimant did her tasks was a matter of her choice and she could easily have done those tasks by standing and moving rather than reaching as she said she did. She again submitted that the claimant's considerable weight increase of some 10 kg could have contributed. It was noted by the appellant that the claimant had now gone on a weight reduction programme and her health problems appeared to be vanishing. The Review Officer considered that the evidence of Dr Freeman determined the matter and that his evidence established that the necessary criteria for section 7 had been satisfied and he accordingly ruled that the Corporation was correct to accept the claim under section 7 of the Act. The Relevant Statutory Provision is section 7 which states as follows: "s7 Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if - (a) In respect of a period that ended on or after the Is day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment." In her submissions to this Court, Mrs Rawlings, submitted that the appellant should not be held responsible for this injury as at the time that she complained of her neck and shoulder strain the claimant was going through a period of depression, had had a considerable increase in body weight and was not helping herself in the manner in which she carried out her duties. It was contended by the appellant that the work tasks which were claimed to be responsible for her injury as a gradual process could easily have been carried out by her in a more efficient manner without causing any adverse effect and she contended that the claimant herself should be responsible for her personal health in those circumstances and that it was unreasonable to have that responsibility transferred to the employer. The Court was provided with a photo of the claimant's workstation and it shows a desk and shelves with a chair, which is on rollers which could be moved. The layout clearly shows that many of the items which the claimant would be required to use or refer to were not within reach if the chair stayed in its place at the desk. It seems that the claimant would reach to the very extremity in order to gain access to various articles such as the receipt book which was positioned in a certain "pigeon hole". Mr Palmer, counsel for the respondent, submitted that the Court had acceptable evidence, particularly from Dr Freeman, that the criteria for section 7 had been made out and that the Court should accept that evidence in the absence of any contradicting evidence. Counsel submitted that it is not open to the appellant to contend that the 6 claimant could have carried out her work tasks in a different way. She was employed to do those particular tasks and as such the employer must be held responsible. Counsel further submitted that the weight gain was not causative of the injury but possibly could have been an aggravating feature. DECISION The medical evidence from both Dr Farnell and Dr Freeman is that the claimant suffered her injury as a consequence of carrying out certain particular tasks at her workstation in the course of her employment with the appellant. There is no evidence that any non-work tasks were a significant contributing factor and in the absence of any evidence to the contrary this Court must accept, as did the Review Officer, that the requirements of section 7(1)(a)(b) and (c) have been made out. The appellant's plea to this Court was principally to the effect that the claimant brought this injury upon herself by the manner in which she carried out her work task, those tasks could easily have been performed in a manner which would not have resulted in stretching or straining, thereby causing herself injury. In addition, the appellant contended that the claimant's weight gain and general lassitude contributed as well. Such a submission in effect goes to the heart of the underlying principle of the Accident Compensation regime, currently embodied in the Accident Rehabilitation and Compensation Insurance Act 1992. That concept is that it is a no-fault insurance scheme and such a scheme has no place for the old common law principles of contributory negligence or volenti non fit injuria. The only exception to the no-fault concept under the scheme as it presently exists is that provided in section 81 of the Act where no compensation can be obtained for wilfully self-inflicted injury. Thus, the Act provides cover for both the careless and the careful, the knowing and the unknowing, without any discrimination. The employer does have certain control in relation to the workplace and the environment which it provides for its employees and the Act certainly encourages vigilance on the part of employers to minimise the 7 risk of injury to its employees during the course of their employment. However, in the more subtle situations which often give rise to gradual process claims under section 7, rather than a work injury by a specific event, it may be the particular method of conducting the work task which is the cause and its detrimental effects may not be noticed until too late. Whatever may be the reason why or how the work task has caused the injury, the fact that an employee could have equally carried out the work task without sustaining injury is not a reason to deny cover to the injured employee. In this present case, the Court must accept that the way in which the claimant carried out her work tasks did cause the injury complained of and once that has been established other matters which may be raised are not relevant. The fact that she may have had a weight problem at the time is simply unfortunate if it was an aggravating feature. The principles of compensation are such that a victim must be taken as she is found and again the fact that if a healthier, less overweight person may not have suffered the injury is of no consequence. For the foregoing reasons therefore this Court cannot find that the matters put forward by the appellant can deflect away the claimant's entitlement to cover once the necessary criteria of section 7 have been established. Elements of fault on the part of the claimant or notions of contributory negligence have no place under the present Accident Compensation Regime. Accordingly therefore, this appeal must be dismissed. DATED at WELLINTON this IS" day of December 1998 leathe M J Beattie District Court Judge Waitomo.doc(gm)