Wellington City Council (Hallstrom) v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. |2 /2001 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND ! THE of an appeal pursuant to section 91 of the Act BETWEEN WELLINGTON CITY COUNCIL (BLANCHE ZANDRA HALLSTROM) of Wellington Appellant (Appeal No. Al 93/99) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS [1] I have received submissions from the advocate for the appellant and from counsel for the respondent, with the request that I issue a decision on the papers. [2] The issue on appeal is whether the costs associated with Ms Hallstrom's claim in the 1997/1998 year are qualifying costs for the purposes of Experience Rating as against the appellant. [3] The background to the appeal is that Ms Hallstrom was an employee of the appellant from 23 June 1993. In April 1995 Ms Hallstrom lodged a claim with the respondent. The referral by the general practitioner at that time noted that the date of accident was 8 December 1991, and the 2 diagnosis was recurrence of back pain. The appellant submitted a copy of its file note to the respondent which noted the original claim arising out of the accident on 8 December 1991, and confirmed that it had arranged a workplace assessment, with the result that an ergonomic workplace was provided for Ms Hallstrom. While that reference was made, Ms Hallstrom also lodged a claim for cover on 12 April 1995 supported by her general practitioner in which it was stated that she was suffering from Overuse Syndrome as a result of data entry work. The appellant explained that the accident had occurred "Working on the computer. Throbbing of wrist." The respondent granted Ms Hallstrom cover for a work injury in respect of the right wrist pain. [4] In May 1995 when it was proposed that Ms Hallstrom commence a graduated return to work, the appellant offered her work representing Council at Tribunal hearings which would involve her mostly in sitting and listening to cases being presented, and for her to present the Council's case. It appears from the records on the file that for some reason Philippa Grimes, a senior physiotherapist, advised the respondent that Ms Hallstrom should be discouraged from undertaking that work "due to the fact that Ms Hallstrom continues to be troubled by her back, and she would not be able to sit for a long period of time." It appears from the file that Mr McNicol, the appellant's Client Liaison Officer, was concerned that Miss Grimes opposed Ms Hallstrom performing alternate duties which did not involve keyboarding or excessive clerical work. In his file memorandum of 23 May 1995 Mr McNicol stated:- "These alternate duties are available and her action seems contrary to the principle of rehabilitation. Council is also concerned that unnecessary ERC-related costs may be attributed to the Experience Rating Claims History." [5] On 30 June 1995 the appellant completed a Work Injury Report in which it accepted that the appellant had suffered the work injury of OOS, but noted on that report, 'Apparently Ms Hallstrom has suffered OOS for some time, including prior to her working for Council. This accident may have aggravated the existing condition." [6] On 17 October 1995 the appellant applied for an Independence Allowance Assessment in which her complaint was, "Pain in lower arms, wrists, hands and fingers." The applicant did, however, claim that she had had a previous claim with the respondent for lower back pain. In November 1996 the respondent referred Ms Hallstrom to Workbridge in respect of the injury of "OOS, wrists", but also noted that she had a back injury. [7] On 19 November 1996 the appellant's advocate wrote to the respondent expressing concern that it was being assigned the cost of Ms Hallstrom's 3 claim. It was noted that when Ms Hallstrom joined the appellant she had significant back problems, which was confirmed in the medical report. It also expressed concern that the appellant had offered to provide Ms Hallstrom with light work which would not have involved her wrist problems, but that the respondent had advised the appellant not to involve Mrs Halstrom with that work because of her back injury. It was not until the respondent issued an Experience Rating invoice on 29 January 1999 that the appellant became aware that the whole of the costs incurred in respect of Ms Hallstrom were assigned to its Experience Rating History. It then lodged an application for review of that decision which was unsuccessful. It is against that decision which the appellant now appeals. [8] In support of the appeal the appellant submits that when the claim was originally lodged Ms Hallstrom's general practitioner referred to the recurrence of pain resulting from the back injury which had occurred in December 1991. The issue of the OOS claim arose when a claim for medical expenses was made on 12 April 1995. The appellant offered rehabilitation assistance in May 1995 by way of a position acting on behalf of the Council at Tribunal hearings in work which would not necessitate the use of her hands and aggravate the OOS condition. That opportunity to provide suitable rehabilitation was rejected by the respondent which then continued to assist Ms Hallstrom in relation to the OOS problem. The respondent submits that all the medical evidence indicates that throughout the period Ms Hallstrom suffered a discrete gradual process injury to her wrists as a result of her work with the appellant. [10] While the file indicates that physiotherapy and other assistance by way of home help was provided because of the ongoing wrist problems, I am concerned that the respondent rejected the appellant's offer to provide alternative work which would not aggravate the OOS problem. It is particularly noteworthy that this offer was made within one month of the claim being lodged. The respondent accepted the advice of its physiotherapist that that alternative work would aggravate Ms Hallstrom's back injury which had occurred in December 1991. [11] I do not consider that that should have been a valid reason for declining the offer unless the whole issue of the relationship between the back injury and the OOS injury was properly investigated and the costs in respect of each separately identified. I consider that the appellant was completely justified in the concerns it expressed to the respondent that the costs of the claim did not appear to be properly identified as between the two accidents. I do not consider that the respondent, having rejected the appellant's offer to provide alternative work, can then impose the costs of the continued problems relating to OOS to the appellant, when the grounds for rejection were the problems related to the back injury. [12] I consider therefore, that the appellant is completely justified in its appeal, and that for the Experience Rating year of 1997/1998 it should be relieved of the costs of the claim by Ms Hallstrom. The appeal is allowed. [13] There will be costs to the appellant of $1,000. DATED at WELLINGTON this 25th day of January 2001 A W Middleton District Court Judge ai93-99.doc(aw)