Webforge (NZ) Ltd v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 240 /2001 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 152 of the Accident Insurance Act 1998 BETWEEN WEBFORGE (NZ) LTD (AI 508 / 00) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 18 JUNE 2001 APPEARANCES: Ms S Mechen, Counsel for appellant Mr D Tui, Counsel for respondent RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the respondent was correct, by decision of 28 March 2000, to classify a back injury said to have been suffered by Keith Everleigh, an employee of the appellant, as a work injury within the meaning of section 6 of the 1992 Act. [2] It is that decision which the appellant sought review of and has now appealed to this Court. The Review decision dated 22 September 2000 clearly identified that it was the respondent's decision of 28 March 2000 that was the subject of the review consideration and which must therefore be the subject of the appeal to this Court. [3] The appellant has status and a right to appeal to this Court against that review decision in accordance with the provision of Section 152 (3) of the Accident Insurance Act 1998 in that the appellant is an employer and is appealing against a review decision that an injury is a work related personal injury. [4] I have identified the issue and the extent to which this Court has jurisdiction as many of the matters raised by the appellant in written submissions, and the oral submissions of Counsel, were seeking to question not so much the work injury decision itself but rather the continuing liability of the appellant of having the cost of Mr Everleigh's claim attributed to it and to be experience rated accordingly. [5] The facts which I find are relevant to the determination of the issue in this appeal are not really in dispute, but in any event I find them to be as follows: [6] Keith Everleigh was at all material times employed by the appellant as a Galvanizing Dispatch Clerk and had been so employed by the appellant for some years. [7] On 9 May 1994 Mr Everleigh was engaged in loading a 70kg steel plate onto a pallet. In his evidence given at the review hearing Mr Everleigh said that he had to pick the plate up and place it over onto the pallet. [8] In the course of this lifting movement Mr Everleigh experienced a sharp pain in his lower back. Although he continued on at work that day, the pain was such that he was taken to Palmeston North Hospital that evening where he was attended and treated by Dr S Grant of the A&E Department at Palmeston North Hospital. Dr Grant diagnosed "back sprain and sciatica" and a claim form for cover under the Act was duly completed at Palmeston North Hospital by the appellant and Dr Grant in those terms. [9] The appellant was certified as being unfit for work for a period of six days and he did so remain off work for those six days because of the injury. [10] On about 27 June 1994 Mr Everleigh lodged an application for entitlement form seeking compensation for loss of earnings and medical expenses. A C14 Medical Certificate was received at the same time. It was completed by Dr JD Drummond, Mr Everleigh's GP and it noted a diagnosis of lumbar disc lesion and it certified Mr Everleigh as being unfit for work for a period of two weeks from 25 June 1994. 508 00Webforge.doc(jed) 2 [11] On 6 July 1994 Mr Everleigh was referred to Mr DI Brougham, Orthopaedic Surgeon for treatment and a medical certificate completed by Mr Brougham on 6 July 1994 noted that the appellant had a back strain with possible right sided disc prolapse. Mr Everleigh was certified as unfit for a further six weeks. [12] At the same time as Mr Everleigh's claim for entitlement was being processed, the appellant was contacted to complete an earnings certificate for the purposes of assessing Mr Everleigh's weekly compensation and this certificate was duly completed and returned by the appellant. [13] On 24 August 1994 the respondent wrote to the appellant requesting that it complete a Work Injury Report and that report was completed and returned on 5 September 1994. The report was completed by the appellant's General Manager, Russell Whyte and in that part of the form where the employer is asked to accept or not accept that the injury referred to was a work injury Mr Whyte has indicated that he accepts that it is a work injury, but went on to add "but the description is incorrect. Weight was in fact not being lifted. It was on ground and being rolled on to a pallet". [14] Following receipt of that report the respondent's administration of Mr Everleigh's claim thereafter concentrated on his medical progress and turning to the various entitlements which he made claim to including an application for an independence allowance and the claim did continue to be administered and be current over the ensuing years. [15] In 1999 Injury Management New Zealand (IMNZ), acting on behalf of the appellant, sought information from the respondent regarding Mr Everleigh's claim and it was at that time that it was discovered that the appellant had never been notified in writing of the respondent's decision to accept Mr Everleigh's injury as a work injury. Accordingly the respondent wrote to the appellant's representative on 28 March 2000 advising that the injury suffered by Mr Everleigh on 9 May 1994 had been classified as a work injury. That decision contained advice of a right of review and it is that decision which the appellant did seek to review, and on confirmation of that primary decision by the Reviewer, the matter has now progressed to an appeal before this Court pursuant to Section 152 (3) of the Accident Insurance Act 1998. [16] In the course of submissions made in support of the appeal Ms Mechen, Counsel for the appellant, identified the various medical reports and the progress of Mr Everleigh's injuries over the years since the lodging of the claim in May 1994. 508 00Webforge.doc(jed) 3 In essence it was Counsel's. submission that whilst it was accepted that there was the lifting incident on 9 May 1994 which did necessitate the appellant attending hospital, nevertheless there was a supervening incident on about 25 June 1994. involving a fishing trip by Mr Everleigh and it was that supervening event which has caused the continuation of his incapacity from that time on. It was further contended by Counsel that Mr Everleigh's present injury is in fact a pre-existing degenerative condition of his lower lumbar spine and it is that which is the reason for his on-going incapacity. [17] In addition to that submission, Ms Mechen also submitted that the respondent was in breach of its obligations under Section 65 of the 1992 Act in failing to advise the appellant in writing of its decision to classify Mr Everleigh's back injury as a work injury. [18] Counsel submitted that from August 1994, when Mr Whyte returned the work injury report until 28 March 2000, the employer was not aware of the implications of the claim that had been made by Mr Everleigh. Counsel submitted that the failure to notify in a timely fashion had prejudiced the appellant who was not now in a position to go back and investigate the factual circumstances of the incident. [19] Mr Tui, Counsel for the respondent, submitted that the issue was one of cover and not of on-going entitlements and there is clear evidence that the appellant did suffer a back strain on 9 May 1994 and which required hospital treatment. [20] Counsel submitted that anything arising from the fishing incident is not relevant to the injury which was diagnosed on 9 May 1994 and is therefore not relevant to the issue in this appeal. Counsel noted that the appellant's General Manager had accepted that the appellant had suffered a work injury. [21] Counsel acknowledged that whilst the appellant had not been notified of the decision to classify Mr Everleigh's injury as a work injury, nevertheless the appellant was aware of the claim and had the opportunity of investigating it at the time when the work injury report was submitted. The appellant has suffered no prejudice. 508 00 Webforge.doc(jed) 4 DECISION [22] As I have already noted at the beginning of this judgement, the issue for the determination in this appeal is the respondent's decision to classify Mr Everleigh's injury of a back strain suffered on 9 May 1994 as a work injury within the meaning of Section 6 of the 1992 Act. That issue, I find, cannot really be considered to be in dispute. Mr Everleigh was engaged in the shifting of a steel plate onto a pallet and in so doing he suffered a strain to his lumbar spine. That injury was identified by Dr Grant at the Accident & Emergency Department of the Palmeston North Hospital and the circumstances of the injury were such the appellant was considered incapacitated for at least six days. [23] The appellant would have been aware of the fact of Mr Everleigh's incapacity and it subsequently became aware of the claim when it was requested to complete a work injury report. Mr Whyte, the General Manager, acknowledged the fact of Mr Everleigh's injury and of it being a work injury and his only comment was that there may be some dispute as to what was the physical act that Mr Everleigh was undertaking when he suffered that injury. That dispute is of no relevance to the determination of the issue in the appeal and I therefore do not find it necessary to make a finding on it. [24] The appellant seems concerned with the on-going liability that the respondent has determined it has for the continuing costs of Mr Everleigh's claim over the years since the injury was first suffered. There is the appellant's assertion that Mr Everleigh has a degenerative condition in his lower lumbar spine and that his on- going and long term problems are related to that rather than to any injury suffered at the work place. Furthermore, the appellant contends that Mr Everleigh may well have suffered a further back injury in late June 1994 whilst on a fishing trip. [25] I note that the circumstances of this fishing trip are disputed as being a cause of a further injury, and certainly from Mr Everleigh's point of view he simply says that he went to Foxton Beach for the day and was fishing off the beach. [26] Whatever may be the circumstances of that fishing day, I find it has no relevance to the issue for determination in this appeal. This appeal does not relate to the attribution of on-going claims costs to the appellant, which would be a decision of the respondent under its powers of Experience Rating Assessment (ERA). It would be for the appellant to raise the issues which it sought to raise in this appeal at 508 00Webforge.doc(jed) 5 any review of the experience rating assessment that the respondent may make if should Mr Everleigh's claim costs be included in that assessment. [27] Counsel for the appellant has submitted that the respondent has breached the provisions of Section 65 (6) of the 1992 Act. Section 65 of the 1992 Act has the heading "acceptance of work injury claims" and subsection 6 states [28] "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." [29] On the facts of this case as I have found them, I cannot find that there was a dispute between the respondent and the employer as to whether or not a work injury had occurred as the employer had completed the work injury report and had signified its acceptance that Mr Everleigh had suffered a work injury. Thus it was not required of the respondent to determine the matter, as there was no dispute to determine. [30] However, I do find that the respondent was for some considerable time in breach of the provisions of Section 67 of the 1992 Act for so long as that Act was in force and then it could be said to have been in breach of Section 72 of the 1998 Act until it did so give notice of its decision on 28 March 2000. [31] What the respondent failed to do was simply to advise the appellant formally that it had accepted the claim of Mr Everleigh as being a claim for a work injury. The requirement to give notice under the successive provisions of S. 67 of the 1992 Act and S. 72 of the 1998 Act is to advise persons of decisions who have a right to make an application for review of that decision. Although the written notice was belated the appellant has not suffered any prejudice by the tardiness of the respondent as the right of review did not arise till the notice was given and in this case that right was duly exercised when notice was received. [32] In summary then, I find that the provisions of Section 65 of the 1992 Act have not been breached by the respondent and that even though it may well have been tardy in giving formal notice under Section 67 and/or its successor, Section 72, nevertheless that tardiness does not give rise to any remedy which this Court has jurisdiction to grant, even if it were to consider that there was a meritorious claim. For the record I indicate that I do not find any merit in such a claim. 508 00Webforge.doc(jed) 6 [33] If the appellant seeks to question its on-going liability for claim costs associated with Mr Everleigh's claim, then it will need to question that as and when the respondent makes a decision under the Experience Rating Assessment Regulations. This question was considered and determined by me in the decision of Cadbury Confectionery Lid (Decision 207/98) and such a question is quite separate and distinct from any decision which the respondent may have made to determine that Mr Everleigh had suffered a work related injury. [34] For the foregoing reasons therefore I find that the respondent was correct to determine that Mr Everleigh had suffered a work related injury whilst in the employment of the appellant, and further that it is not open to this Court in the context of this appeal to consider any of the respondent's downstream decisions from that first decision which may relate to the attribution of on-going claim costs of Mr Everleigh's claim to the appellant. Such a decision, as and when it is made, may well be the subject of a separate appeal to this Court at some future time. [35] Accordingly this appeal is dismissed. DATED at AUCKLAND this 5day of September 2001 Deaths MJ Beattie - District Court Judge 508 00Webforge.doc(jed) 7