Wellington City Council v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 3 +3 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN WELLINGTON CITY COUNCIL Appellant (Appeal No. DCA 134/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE M J BEATTIE ON THE PAPERS Counsel for the appellant and the respondent have filed written submissions in this appeal and have requested that the Court issue a judgment on the papers. The issue for determination in this appeal is whether a letter written by the respondent to the appellant dated 25 September 1998 was a decision letter thereby enabling the appellant to seek a review of the respondent's decision that it had accepted the claim of Amanda Kirkland, an employee of the appellant, as a work related injury. The facts which are relevant to the determination of this issue are as follows: 2 Amanda Kirkland was employed by the Wellington City Council as a Resource Consent Planner in its Environmental Control Business Unit. In March 1997 Ms Kirkland lodged a claim for cover with the respondent for an OOS injury to her right forearm, said to have been caused by excessive use of a computer mouse in the course of her employment with the appellant. Ms Kirkland's claim was treated as a gradual process injury claim and as is required gradual process questionnaires were sent to her GP, and her employer, the appellant. The form submitted to the appellant is a GP3 described as a Gradual Process, Disease or Infection - Employer Questionnaire and Work Injury Report. That form was completed and returned. The form indicated the hours per week that the employee worked, the nature of the duties that she performed and it also sought details of whether any other person performing similar work had suffered from this condition, to which the answer was yes. There was then the question: 'Do you consider the injury to be related to the claimant's employment tasks and/or work environment?" There were three options for the employer to indicate, being "yes", "no" or "unsure". The employer ticked "unsure". It also noted that the appellant was involved in gym work, weights, and squash, being leisure activities that may have contributed to the injury. The accompanying message returning that GP3 form from the appellant stated: "Please find the completed claim form for Amanda Kirkland. A meeting has been arranged for Amanda, yourself and myself at 1.00 pm on Monday 25 August in the People Development Office. The aim is to discuss Amanda's injury and a clear means of assisting with her rehabilitation." The GP5 questionnaire completed by the appellant's GP confirmed that her injury was as a consequence of repeated and excessive mouse use. 3 It is to be noted that the appellant was concerned for Ms Kirkland's health and rehabilitation and was going to set in place a workplace assessment by an occupational therapist or similar and also it requested assistance from Ms Kirkland's GP. As part of the appellant's concern it arranged for Ms Kirkland to be transferred to its Tawa office and that whilst she would be in the Planning Unit, her tasks there did not involve repetitive work. By letter dated 21 August 1997 the claimant's Case Manager advised the appellant of its acceptance of the appellant's claim. The precise wording of the letter is as follows: "Thank you for returning the work injury report in respect of the injury Amanda sustained on 20/3/97. As you have indicated your agreement that the injury arose 'out of and in the course of employment', we have now formally accepted that the accident was a work injury under section 6 Definition of Work Injury of the Accident Rehabilitation and Compensation Insurance Act 1992. This claim will therefore affect your experience rating. If you are not satisfied with this decision or there is something you don't understand, please contact me to discuss your concerns. I will explain this decision and your right to review. If you wish to apply for a review of this decision, your application must be made in writing within three months of the date of this letter. You can obtain an ARC33 (Application for Review) from any ACC Branch Office or Customer Service Centre. 4 Please note that you do not have the right to apply for a review of Amanda's entitlements." That letter was addressed to Mr Wayne Tacon of the appellant's Environment Unit and he replied by fax on 29 August 1997 as follows: "Diane (claimant's case manager) Unfortunately I have been unable to get through on your phone system so I consider the quickest method would be a fax. In respect to your letter of 21 August 1997 I would appreciate some clarification and possibly an amended letter. My understanding is that you as ACC are entitled to conclude that an accident or injury is work related and I have no issue with that. However you have indicated in your letter that I have agreed that the injury arose out of and in the course of employment. In respect to that question in the work injury report I have entered 'unsure'. I would appreciate it if you would produce another letter which indicates our position." The remainder of the fax discusses aspects of Ms Kirkland's job reassignment and her rehabilitation. As a consequence of that fax Diane Muller, the claimant's Case Manager, wrote another letter to the appellant dated 8 September 1997 and addressed to Mr Wayne Tacon. That letter was precisely the same wording as the earlier letter of 21 August 1997, save that the second paragraph read as follows: "As you have indicated you are unsure that the injury arose out of and in the course of employment. However we have now formally accepted that the accident was a work injury under section 6 Definition of Work Injury of the Accident Rehabilitation and Compensation Insurance Act 1992." The respondent's file indicates that there was continuing correspondence between the appellant and the respondent relating to Ms Kirkland's time off work and her 5 details of earnings for the purposes of weekly compensation and the respondent continued to administer the claimant's claim which included payment of entitlements for weekly compensation and various treatment expenses. In June 1998 Mr Nobilo, the People Development Adviser for the appellant, wrote to the claimant's Case Manager indicating that it had received advice from a Dr Robinson, an Occupational Medicine Specialist, which indicated that the diagnosis of Ms Kirkland's injury was not one which met the statutory requirements of a gradual process injury and contending that unless the Corporation had documentary evidence to support its position, then the injury should not be considered to have arisen from her employment. Following receipt of that letter the matter was referred to the respondent's Branch Medical Adviser, Dr Brown, and after receiving his advice the claimant's Case Manager wrote to Mr Nobilo on 25 September 1998, this being the letter which the appellant now seeks to rely on, as follows: "Further to our meet on Monday 03 August, a thorough review has been undertaken with regard to the Corporation's decision to accept Amanda's claim for cover and classifying it as a work related injury with liability going to Wellington City Council. Amanda's claim has been considered under Section 7 of the Accident Rehabilitation & Compensation Insurance 1992 Act. . . . The assessments undertaken by Dr Smith, Dr Rajapakshand Philippa Grimes, all in 1997, describe Amanda as having right forearm occupational overuse syndrome symptoms from using the mouse in her employment activities. Or Rajapaksha states Amanda's injury is 'related primarily to the use of a mouse, and to a lesser extent the keyboard, as part of her work'. 6 Dr Kanji, also reported in 1997, that Amanda had difficulty using the mouse but he also referred to her having both work and personal stressors. Dr Brown, ACC Branch Medical Advisor has cited the claim file and reports that the extent of contribution by Amanda's home and sport activities and other personal stressors is not quantified. I have received a report from Helen Chambers, Clinical Psychologist who saw Amanda as per of her rehabilitation programme in June 1998. Helen refers to the stresses Amanda experienced in the workplace, which in turn effected her OOS. The work she did with Amanda focused on stress reduction and the management of stress in her life. Following my investigation of this claim and in reconsidering all the medical information on the file, I must advise that our decision dated 08 September 1997 remains in force. However, in accordance with Section 67A this decision should also include cover under Sections 7(1) and 8(2)(b) of the Accident Rehabilitation & Compensation Insurance 1992 Act. If you are not satisfied with this decision, or if there is something you do not understand, you should contact us immediately and discuss your concerns. Our staff will explain the decision and will explain your right to ask that the decision be reviewed. If you do want the decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request for a review must be received within three months from the date of this letter." As a consequence of that letter Mr Nobilo, on behalf of the appellant, filed an application for review indicating that it did not accept the claim decision of the respondent. At the review hearing the substantive question whether or not Ms Kirkland had suffered a gradual process injury within the meaning of s.7 of the Act was not considered, the issue before the Review Officer being whether or not the appellant 7 could raise that substantive issue or whether its right of review relating to that issue had been lost, the original decision in respect of same being given on 29 August 1997 and amended on 8 September 1997 and there being no request for review that decision being lodged by the appellant within three months of those dates. The Review Officer found that the appellant had not exercised its right of review within three months of the decision of 21 August 1997 and that the letter of 25 September 1998 did not constitute a decision as it merely confirmed the position already advised by the respondent in August of the previous year. It is that decision which is now the subject of the appeal to this Court. Submissions Mr Greene, advocate for the appellant, submitted that the Act provided two distinct categories of cover for a work injury. Section 6 refers to a specific event work injury and s.7 provides for work injuries caused by gradual process arising out of and in the course of employment. He submitted that the letter of 21 August 1997 accepted the claim as a specific event work injury whereas the later letter of 25 September 1998 specifically referred to the acceptance of a gradual process injury. Mr Greene further submitted that by the respondent invoking s.67A and extending cover to incorporate ss.7 and 8(2)(b) it was correctly providing a right of review as this was the first occasion that the appellant had been notified that the claim had been accepted as a gradual process injury. Mr Greene further submitted that if his submissions as above were not accepted it would lead to an injustice as an employer might accept a claim as a specific injury but might not be prepared to accept the claim as a gradual process injury and that if the two were not separate and distinct an employer accepting a specific event work injury might unwittingly also be accepting a gradual process injury, if the category of cover subsequently changes. To then be unable to challenge the gradual process classification would be an injustice. 8 Ms Ahern, counsel for the respondent, submitted that s.89 of the Act limited an employer's right of review to decisions made pursuant to s.65 of the Act and that s.89(2) and (4A) were designed to limit an employer's interest in a claimant's claim to the issues directly affecting the employer, that is a decision under s.65. Counsel referred to the decision of this Court in Hull (249/97) and submitted that the only relevant decision required of the respondent was a decision under s.65 and that decision was made by the respondent in August 1997. Counsel submitted that it was irrelevant whether the letter of September 1998 referred to the decision being amended, what must be looked at is whether the letter of September 1998 in fact amended the decision. She submitted that the letter simply affirmed the decision of August 1997 and simply made reference to a different section of the Act. Nothing in that letter affected the appellant's obligations. Counsel submitted that as no application for review had been made within the three months of the making of the decision, the Review Officer was correct to determine that there was no jurisdiction to hear the appellant's application for review. Relevant statutory provisions Section 6(1) reads: "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 7(1) reads: 9 "(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 ist 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." Jurisdiction for an application for review is covered by s.89 of the Act which states: "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 or section 107 of this Act may apply to the Corporation for a review of that decision. (3) Any registered health professional who is dissatisfied with a decision of the Corporation under subsection (6) or subsection (7) of section 5 of this Act in respect of that registered health professional may apply to the Corporation for a review of that decision. 10 (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. (4A) Nothing in subsection (4) of this section shall confer any right to apply for a review of any decision relating to the entitlement under this Act of any person to any payment or rehabilitation or the making of any payment directly or indirectly under this Act in respect of that person. (5) An application pursuant to this section - (a) May be made in the prescribed form within 3 months after the date on which the claimant is entitled to treat the claim in respect of which the review is sought as having been rejected under section 66 of this Act; and (b) In any other case, an application in the prescribed from may be made within 3 months after the date on which notice in writing has been given of the decision in respect of which the review is sought---- and each such application shall state briefly the grounds on which the application is made." Section 65 states: "65. Acceptance of work injury claims--- (1) Except as provided in subsection (3) of this section, a work injury claim may be lodged with the relevant employer or the Corporation. (2) Where any work injury claim is lodged with an employer, that employer shall forward the claim to the Corporation together with a work injury report as soon as practicable. 11 (4) Where any work injury claim is lodged direct with the Corporation, the Corporation shall refer a copy to the employer and request a work injury report within 21 days, unless it is a work injury claim to which subsection (7) of this section applies. (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. (7) Where any work injury claim involves conduct of a kind described in section 8(3) of this Act, the employee may submit the claim directly to the Corporation and request that the Corporation not treat the matter as a work injury claim for the purposes of this Act; and the Corporation shall comply with any such request and the costs of the claim shall be met from the Non-Earners' Account." Section 8(2)(b) states: "Cover under this Act shall extent to personal injury which is caused by gradual process, disease or infection arising out of and in the course of employment as defined in section 7 or 11 of this Act." Section 67 states: "Notice of decisions - (1) The Corporation shall, as soon as practicable, give to any person who is entitled to apply for a review under section 89 of this Act notice, in writing, of any decision in respect of which that person could make an application for review. (2) Where any decision of the Corporation referred to in subsection (1) of this section is not wholly in favour of the person, the Corporation shall provide to that person, in writing, the reasons for the decision and general 12 information about the rights of review and appeal available under this Act, if that general information has not been provided within the previous six months." Decision It is clear from the respondent's file that Ms Kirkland's claim was treated right from the outset as a gradual process claim for an OOS type injury said to have arisen by reason of the work task of the claimant in connection with the use of the computer mouse. The circumstances of the claim were conveyed in that way to the appellant as the employer and those facts were on the GP3 form which was forwarded to it for completion. I find as a fact that at no stage was it being asserted, either by the respondent or Ms Kirkland, that she had suffered a "specific event" injury. Indeed the file discloses that the appellant was concerned about the injury and of measures it ought to take to see that it did not reoccur by itself undertaking workplace assessments. In addition it had indicated in the GP3 that other employees had previously suffered similar type of injuries. When the appellant returned the GP3 form it had noted that it was unsure and the form indicated that its uncertainty was because of possible recreation pursuits of the claimant which may have contributed to the establishment of the injury. The chronology discloses that the appellant undertook a proactive role in the rehabilitation of the claimant and was concerned to be informed of her progress medically as well as it taking steps in the workplace environment to ensure that her condition was not exacerbated. The file discloses that it was not until about May or June 1998 that the appellant began to question the claimant's injury, possibly because it was continuing on longer than had been expected. The appellant sought the medical advice of an occupational physician and it was following that advice from Dr Robinson that the germ was planted that possibly the claimant's condition was not necessarily one that 13 met the requirements of s.7 of the Act. It is to be noted that Dr Robinson's prime brief was for his opinion as to how best she could be rehabilitated and the observation regarding s.7 came at the end of his advice regarding rehabilitation. It was that report which gave rise to Mr Nobilo's letter of 11 June 1998 to the respondent questioning the decision to grant cover. It was that letter and the follow-up meeting between the parties which took place on 3 August 1998, and which is referred to at the commencement of the letter of 25 September 1998, that brought about that 25 September letter. I find that the appellant was seeking to reopen, or revisit, the respondent's decision to grant cover to the claimant and I find that the letter of 25 September was the response to that request and it was mistakenly stated by its author to be a decision which gave rights of review. I find that merely because the letter stated that it gave a right of review does not mean that necessarily in law it was a situation which afforded an entitlement to review pursuant to the provisions of the Act. The letter itself refers to the Corporation's decision to accept Amanda's claim for cover and classifying it as a work related injury, and later on the letter states that its decision of 8 September 1997 remains in force. As a matter of law it was not correct for the author to then advise that the decision was able to be reviewed. As I have previously ruled, the fact that the letter may have said it was a decision which gave review rights does not mean that in law there were review rights. I find that the circumstances of this case are similar to the situation which arose in the case of Hull and reaffirm the statement made in that decision that there can only be one decision at any time on any particular claim or entitlement under the Act. Insofar as this case is concerned, that decision was made in August/September 1997 when Ms Kirkland was given the status of having cover under the Act for a gradual process injury and the employer, being the appellant, was notified of that fact and given the opportunity of questioning it should it see fit. The fact that the appellant at that time indicated that it was "unsure" certainly indicated that it was on 14 inquiry and it was given advice of its rights which it could have exercised had it chosen so to do. I reject Mr Greene's submission that the decision of September 1998 was a separate decision and for the first time determined that the claimant had cover pursuant to s.7 of the Act. Whilst the letter of September 1998 may have expressed that as being the case, nevertheless that had been the effect and substance of the decision letters of August and September 1997. At no stage had it ever been suggested that the respondent was considering a specific event injury, nor was it ever asserted by the claimant that she had suffered a specific event injury. The appellant was well aware of the fact that it was a gradual process claim and indeed the aspect of it being "unsure" was because of the possibility that maybe some of her outside work activities, which were stated, may have been a contributing feature. For the avoidance of doubt I do find that if indeed it had been the respondent's position that it changed the nature of the claimant's injury from one of being a specific event injury suffered in the course of employment, to a gradual process injury, then there would indeed be two separate decisions and the latter decision would have attracted a right of review as the appellant would have been entitled to raise any issues that pertain to a claim under s.7 in relation to a decision for cover under that section. In the present case however there has never been any doubt that at all times this was a claim for cover under s.7 and as such there can only be one decision granting that cover and simply because the appellant at some later stage requests that the decision be revisited and the respondent replies by advising that the earlier decision remains in force, cannot then make that advice a new decision. From the evidence I find that the respondent's letter of 8 September 1997 was a letter which complied with s.65(6) of the Act. That letter was in response to the 15 appellant's advice that it was unsure as to whether or not it was a work injury. The respondent determined the matter and advised the appellant in writing of its decision. In accordance with s.89(2) of the Act, the appellant as employer was a person who had the right to seek a review of that decision and that decision only. There is no dispute that it did not seek that right and accordingly I find as a matter of law that the time limit for asserting that right expired on or about 7 December 1997. It was therefore not open for the appellant to subsequently seek to have that decision reviewed per medium of the respondent's confirmatory letter of 25 September 1998. The decision of the Review Officer is confirmed and this appeal is dismissed. DATED at WELLINGTON this 23 day of November 1999 MJ Beattie District Court Judge DCA134-99.doc(J9)