Works Civil Construction Ltd v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON -- - Decision No. 222/99 Appeal No. DCA 336/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN WORKS CIVIL CONSTRUCTION LTD Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARING at WELLINGTON on the 16th day of February 1999 DATE OF DECISION: 12th August 1999 COUNSEL: MS R E Schmidt for appellant Messrs C Richards & A D Barnett for respondent INTERIM RESERVED DECISION OF JUDGE P F BARBER The Issue The issue in this appeal is whether the respondent was correct to classify an injury (to a disc in his back) suffered by one of the appellant's employees as a work injury. 2 In a decision dated 30 July 1998 the Review Officer declined to overturn the respondent's decision of 2 March 1998 to that effect. The Review Officer found that, irrespective of whether or not the injured disc had been injured in the past, there was evidence linking the employee's injury to a specific accident which occurred while he was in the course of his employment with the appellant. Accordingly, the Review Officer held that the accident on 11 August 1997 had caused the employee's personal injury. Further Background The respondent received a claim for cover dated 10 December 1997 from a Mr Bernard Paul Tinnelly, the said employee of the appellant. The claim related to a back injury suffered on 11 August 1997 while Mr Tinnelly was lifting a sliding door onto its track in the course of his employment with the appellant. Mr Tinnelly had previously suffered a prolapse of the L4/5 disc which had been successfully repaired by surgery in September 1993. On 4 December 1997 Mr Tinnelly consulted his general practitioner, Doctor J McLoughlin, who considered that Mr Tinnelly had suffered an exacerbation of the previously injured L4/5 disc. On 23 December 1997 the respondent received a work report from the appellant advising that the respondent had a strict accident reporting procedure; had received no notification of this accident; and, therefore, did not accept that this accident was work related The respondent received a medical report dated 29 December 1997 from Mr P Dayaram, orthopaedic surgeon, who considered that Mr Tinnelly had suffered a prolapse of the L5/S1 disc which had not previously been injured. An MRI scan was subsequently performed and, on the basis of that scan, Mr Dayaram altered his opinion and issued a new report, dated 13 January 1998, stating that Mr Tinnelly had suffered a second prolapse of the previously injured L4/5 disc. Mr Tinnelly wrote to the respondent on 19 January 1998 describing the events on 11 August 1997 which caused his injury. Inter alia, he stated that he had not reported his accident immediately because he feared that going off work would put his job at risk. By letter of 2 March 1998 the respondent informed the appellant that it was classifying Mr Tinnelly's injury as a work related injury and referred to Mr Dayaram's initial opinion that Mr Tinnelly's injury was to the L5/S1 disc, which had not previously been injured. The appellant filed an application dated 12 May 1998 for review of the respondent's decision of 2 March 1998. It is worth recording some factual aspects emphasised for the appellant. Mr Tinnelly left the appellant's employ about a month later after the alleged accident of 11 August 1997. He first sought medical treatment on 4 December 1997 and filed an 3 ACC claim on 10 December 1997. On 23 December 1997 the respondent received a completed Work Injury Report from the appellant. This stated that the appellant did not accept that Mr Tinnelly's accident was a work injury because it knew nothing of the accident, had a vigorous reporting procedure, and no report had been completed in-relation to the alleged accident. Mr Tinnelly filled out the appellant's form of accident report on 15 January 1998. On 19 January 1998 Mr Tinnelly wrote to the Corporation advising that while he was aware of the accident reporting procedures, the appellant was at the time running short of work so that, if he had gone off work, his job would have been in jeopardy; and he, therefore, chose not to report the accident. It appears that, at the time of the alleged work accident, Mr Tinnelly was a temporary employee on a three month contract which started in December 1996, but he obtained work for the appellant beyond that three months until September 1997. Of course, the concern to the appellant is that this work injury will be attributed to it for the purposes of experience rating. For the purposes of experience rating under s.104 of the Act, the cost of such classification as a work injury is taken into account when applying the experience rating formula contained in the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993. Accordingly, there are significant implications for employers as to whether or not an injury is classified as a work injury under s.6 of the Act. At the hearing a further short report (dated 15 February 1999) was admitted from Mr Dayaram as evidence by consent. It simply stated Mr Dayaram's opinion that Mr Tinnelly's disc injury "is related to the injury he suffered when he lifted a sliding door in August 1997" and referred to a consequential sciatica. The Relevant Statutory Provisions Section 6 of the Act defines a "work injury" as personal injury "arising out of and in the course of employment" as follows:- "6. 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; and includes a cardio-vascular or cerebro-vascular episode where- (a) That episode is caused by physical effort or physical strain arising out of and in the course of employment; and (b) That physical effort or physical strain is abnormal in application or excessive in intensity for the person suffering it. (2) Personal injury that is medical misadventure does not arise out of and in the course of employment unless it results from treatment by a registered health professional on behalf of the employer at a place of employment under the control of the employer." There was also reference to the definition of "arising out of and in the course of employment" in s.3 of the Act. 4 The Decision of the Review Officer (A J Vivian) The hearing before the Review Officer was held on 21 July 1998 at Christchurch and a helpful written decision issued 30 July 1998. The employee was then aged 38 working as an inspector for the Grey District Council. At the hearing of the application for review lodged by the appellant, the appellant was represented by one of its executive officers (with the local branch manager also in attendance), and the Corporation seems to have been represented by an executive officer also. The hearing seemed to comprise submissions from the two parties with much discussion between both parties and the Review Officer without any specific evidence from witnesses (i.e. no viva voce evidence) but with general agreement on the facts but not on the consequences of those facts. From the record, the hearing seems to have been conducted on an amicable basis with all parties being able to state their views. However, one wonders whether it would be desirable to have these review hearings conducted on a structured basis as nearly as possible to a judicial hearing, and with such procedure being standard throughout the country. I would have thought that the point of a review hearing is for evidence to be given on oath and subjected to cross-examination, or to be incorporated into the record as an agreed statement of facts, with submissions at the review hearing to be related to that evidence. Indeed, if review hearings were conducted as prescribed in s.90 of the Act, my concerns would be met. Having reviewed the facts and submissions the Review Officer made the following clear findings:- "Dr Mclaughlin in the original M46 indicated that Mr Tinnelly was suffering an exacerbation of his L4/5 disc. I accept that this on the face of it implies that Mr Tinnelly was suffering from a pre-existing condition. However, Mr Tinnelly gave a clear account of injuring his back while working with a sliding door at the hospital on 11 August 1997. Further, Mr Tinnelly explained that the pain eased off after three or four days but about four weeks later he started getting pain in the left buttock area. Mr Dayaram initially thought Mr Tinnelly had a disc prolapse at 15/S1 but subsequently clarified after an MRI scan that Mr Tinnelly had suffered a second prolapse at the L4/5 disc. While I accept that this was in the same area as the earlier prolapse back in 1993 it is also clear both from the description from Mr Tinnelly which was noted by Mr Dayaram, that this was clearly precipitated by a specific event when Mr Tinnelly was working with the sliding door at Grey Hospital. Mr McDonnell contended that Mr Tinnelly's claim should be treated as a gradual process. However, there is clear evidence that Mr Tinnelly's L4/5 prolapse was the result of a specific event when he was handling the sliding door at the hospital and I do not accept that this constitutes a gradual process injury. As a consequence the date of injury is the date given on the M46, notwithstanding that Mr Tinnelly was no longer working for Works Civil Construction Lid at the time that he made the claim. While I accept that the claim was made some four months after Mr Tinnelly actually injured his back there is no evidence to suggest that he had in fact suffered from a more recent 5 accident. While I accept there is an onus on the Corporation to investigate work injuries fully (as contained in s.65 of the Act) I am satisfied that the Corporation has discharged this burden in this instance. The Corporation has specialist comment from Mr Dayaram as well as submissions from both Mr Tinnelly as well as Works Civil Construction Ltd. I confirm the Corporation's decision of 2 March 1998 advising the applicant that Mr Tinnelly's claim has been accepted as a work injury. The application for review is declined ... ". The following earlier paragraph from that decision is an illustration of the detail considered by the Review Officer: "Mr McDonnell reiterated that the Corporation quoted the wrong area of Mr Tinnelly's injury i.e. 15/S1 whereas the injury occurred to L4/15 and that this area had been damaged previously in 1993. Mr McDonnell concluded that in view of the error on the Corporation's part and the fact that Mr Tinnelly had a number of back injuries just how credible it was that for Mr Tinnelly to suffer an injury to the same area and not report or seek treatment for that injury until some four months later. Mr McDonnell questioned whether Mr Tinnelly would have been able to carry on with his work which would have included bending, twisting, etc for one month after the accident." As Ms Schmidt pointed out, at the review hearing the appellant questioned whether it was reasonable of the Corporation to have treated Mr Tinnelly's latest claim as a new claim. It pointed out the delay in lodging the claim, the appellant's rigid reporting procedures and the fact that Mr Tinnelly carried on working for a month after the alleged accident. The Corporation's response was that the injury arose out of and in the course of employment, in terms of the Act, and had been caused by a new specific event. As indicated in the above extracts, the Review Officer accepted that there was some evidence to imply that Mr Tinnelly was suffering from a pre-existing condition, but concluded that the injury had been "clearly precipitated" by a specific event when Mr Tinnelly was employed by the appellant. The Review Officer did not accept that this was a gradual process injury, and found that the Corporation had fully discharged its obligations. Summary of Submissions for Appellant Ms Schmidt submitted that the claimant must show on the balance of probabilities that his injury is a "work injury" and she referred to various case authorities. She submitted that in this case the Corporation erred in finding that s.6 applied, and that the requisite standard of proof has not been met by the Corporation. She submitted that the doubts which prevent this standard being met are those caused by the fact that the appellant was entirely unaware of employee's injury at the time it is alleged to have occurred and did not become aware of it until some four months later. The appellant therefore queries whether the injury was sustained on the day and in the 6 manner accepted by the Corporation and contends that further investigation should have been carried out before the Corporation decided its onus of proof had been discharged. Ms Schmidt referred to the employee having been able to continue working full-time after, allegedly, suffering the injury, and submitted that militates against the Corporation having discharged its onus of proof. She submitted that given the employee's history of similar injuries, this particular injury may have occurred anyway, and not necessarily at this workplace, and should not have been classified under s.6 of the Act. She emphasised that as there is much evidence of a previous condition regarding Mr Tinnelly, it is impossible to be certain that the alleged accident was the substantial cause of the present back injury. She submitted that the Corporation has relied heavily on the employee's evidence as to how the injury occurred without adequately investigating other possibilities. She referred to there being a dearth of real evidence as to how Mr Tinnelly's injury was sustained, especially given the fact that he did not seek medical treatment until after a significant period of time had elapsed, so that it is not proper to apply s.6 of the Act. Ms Schmidt referred to various case authorities and particularly to South Pacific Tyres Ltd v ARCIC (1997) 1 BACK 331 where Judge Ongley stated at page 334:- "Acceptance of the claim as a work injury is a decision affecting the Corporation, the claimant and the employer. As between the Corporation and the claimant the matter is satisfactorily resolved, but it does not follow that the onus of showing the injury was not a work injury then rests entirely on the employer. If the Review Officer had reached a decision on the basis of adequate evidence and a correct view of the law, the employer would have to persuade the Court to reverse the decision on appeal. However, in this case, where there was no real evidence before the Corporation or the Review Officer sufficient to resolve the question that is disputed by the employer, the question now on appeal is at large. The Corporation carries the substantive allegation that this was a work accident affecting the appellant's experience rating. The burden of proof therefore lies with the Corporation and I find that it has not been discharged." In South Pacific Tyres Limited v ARCIC, an employee alleged that his back injury was sustained at work in the appellant's tyre manufacturing plant. The employee, who lived on a small farmlet, had complained of back pain while at work on a Friday 26 March 1993. Like Mr Tinnelly, he did not stop work, seek medical attention, or fill in an accident report form at the time. He continued working for the balance of the shift and immediately commenced another consecutive shift. He did not work for his employer at the weekend but returned to work on the following Monday morning and carried out another double shift of 16 hours. He telephoned on the following day and complained of back pain and did not return to work. He was later diagnosed with collapsed vertebrae and underwent a laminectomy. There were areas of disputed fact relating to whether the claimant had seen the company doctor or nurse, about the nature of his activities on his farmlet during that weekend following the alleged incident, and whether he had suffered an injury before he complained of the back pain on 26 March 1993. The claimant did not give 7 evidence at either the review or the appeal hearings, although he had been present and was represented by counsel at the review hearing when the review officer declined to allow the claimant to be represented as a party to the review. Judge Ongley observed, at page 333: "A difficulty is that the findings of the Corporation and the review officer appear to rest largely on assumptions. There is no precise history recorded from the claimants. There is no medical opinion of causation explicitly based on the claimant's account of what happened on 26 March. There is a dearth of real evidence, although there is a superficial appearance of probability that the injury is work related. The opportunity to remedy the defect, at least to the extent of hearing the claimant's version of events, was lost when the claimant was denied a right of representation at the review hearing and left without . his evidence being heard." Ms Schmidt referred also to the decision of Judge Ongley in Billings v ARCIC (24 September 1996, District Court Wellington No. 86/96) where the claimant had made a claim for a work injury arising from her employment in a private law practice. The employer took issue with the Review Officer's finding that the injury arose out of the claimant's employment and argued that it was not an injury that would not have occurred but for the person being in her place of employment and that the injury could have occurred in any other place. Judge Ongley said at page 4 of that decision "The test is whether the injury would not have occurred elsewhere, not whether the injury could not have occurred elsewhere or whether a similar injury would not have occurred elsewhere." Miss Smith submitted that there is nothing in the circumstances outlined by Mr Tinnelly which rendered the alleged injury one which could only have occurred at work. A Summary of Submissions for the Respondent Mr Richards referred to the appellant's acceptance of the general rule that the Corporation has an initial onus to establish that an injury is work related and submitted that, if the Corporation finds on adequate evidence that an injury was work related, and this decision is upheld by a Review Officer, then the evidential onus shifts on appeal to the appellant's employer. Mr Richards then dealt in some detail with South Pacific Tyres Ltd v ARCIC referred to by Ms Schmidt in support of her submission that, in the present appeal, the evidential onus is on the respondent because the decision of the Review Officer was not made on adequate evidence. He also referred to Judge Ongley's statement in South Pacific Tyres Ltd v ARCIC at page 334 set out above. Mr Richards referred to Mr Tinnelly having given a clear account of the accident to Mr Dayaram and to this being reflected in Mr Dayaram's report. Mr Tinnelly had described to Mr Dayaram a particular moment when he felt "something tear in his back" while he was undertaking the specific work task of lifting a door at about 11.30 am on 11 August 1997. Mr Tinnelly repeated his account of events in a letter to the respondent dated 16 January 1998 in which he again, unequivocally, linked his injury to that specific accident. The Review Officer was quite clear that he made his decision based on evidence linking the injury to a specific accident. 8 Mr Richards referred to the respondent having accepted that the evidence pertaining to the alleged accident came solely from Mr Tinnelly and was uncorroborated, but the parties appeared to agree before me that there was a witness to the accident. They must be referring to a Mr Wayne Burnett as I note that, in the record of the review hearing at page 8, there is the clear statement from the Corporation's representative that there was actually a witness, namely:- "because he says that he was working with Wayne Burnett". The executive officer of the appellant then notes "That's someone from the hospital (inaudible)", and the Corporation's representative then says "Ah right, a fitter and turner from the hospital (inaudible)." The record then indicates that Mr Burnett had submitted a letter to the Corporation, although the particular paragraph in the record may mean that Mr Tinnelly had referred to Mr Burnett in his said letter to the Corporation. In any case, the parties appeared to accept before me that there was the corroboration of Mr Burnett to the work accident referred to above. Mr Richards points out that Mr Tinnelly has not "been dishonest" because, although he has applied for cover with respect to the injury, he has continued to work and has not at this point applied for weekly compensation or medical treatment costs. Mr Richards probably means that Mr Tinnelly does not seem to have endeavoured to capitalise on his injury. There was much reference to Tui Milk Products v ARCIC (No. 18/95, 27 February 1995) where the claimant had suffered a previous injury to his back which may have made him more susceptible to the later back injury in respect of which cover was granted. Judge Middleton held that the later injury was still attributable to a particular work related accident and was therefore a work related injury for the purposes of the Act. Accordingly, Mr Richards submits that the fact that the injury was to the same disc, which had previously been injured, is not relevant to this appeal and the crucial question is whether Mr Tinnelly suffered an injury to his disc because of a specific work related accident. In Tui Milk Products Lid v ARCIC the question was raised as to whether a back injury which occurred in 1992 constituted a new injury, or was merely an aggravation of a pre-existing injury which had occurred some years previously. Judge Middleton applied the "eggshell" principle and said (at page 7):- " ... I agree with Ms Dall's submission that the eggshell skull principle must apply and that the actions performed by [the claimant] on 27 November 1992 clearly fall within the definition of 'accident' as contained in s.3. While a similar injury may not have occurred to someone without the pre-existing problem (the claimant) was susceptible and the application of force to loosen the nut caused the injuries he sustained." Reasons for Decision Although, as I have indicated, the review hearing could be regarded as having been a little unstructured, at it the parties covered the evidence in the manner I have outlined above and the appellant did not adduce any evidence to shake the factual 9 claims of the employee regarding the accident. Nor did the appellant even seek to cross-examine the employee. At this stage the only evidence about the accident is derived from Mr Tinnelly (apparently, from his accounts to the respondent and to the said medical persons) and there is no reason to doubt his version of events. However, I am conscious that he does not seem to have given his version of events as evidence on oath. Nor has the corroborative witness who is apparently available. Accordingly, I am prepared to allow the appellant a resumption of the hearing before me if it wishes to subpoena the appellant and/ or Mr Burnett to deal with the pivotal facts. The Corporation may prefer to call them and make them available for cross-examination. Nevertheless, it seems very likely that, on 11 August 1997, while Mr Tinnelly was lifting a sliding door in the course of his employment with the appellant when working with Mr Burnett at a hospital, he either suffered a second prolapse of his previously injured disc, or suffered a prolapse of another disc. That would constitute an accident for the purposes of s.3 of the Act and a work injury for the purposes of s.6 of the Act. I observe that, in terms of the eggshell principle, it does not seem to me to matter much whether the disc injured was the previous L4/5 disc or an L5/S1 disc or any other disc. When one stands back and looks at this case overall, there seems no reason to find that the Corporation and / or the Review Officer have acted incorrectly. However, in terms of being satisfied about the said pivotal facts, on the balance of probability, and in terms of credibility, I would prefer to actually hear evidence adduced from Mr Tinnelly and, preferably, also from Mr Burnett - because this does not yet seem to have been done in the standard way. It is settled law that the onus of proof in these proceedings rests on the appellant. I do not equate the present state of these proceedings with the facts of South Pacific Tyres v ARCIC. The evidential onus has shifted to the appellant. Accordingly I reserve leave for either party to proceed to an extended hearing before me as I have suggested. The Registrar will arrange a time and venue for such extended hearing to fit into the reasonable convenience of all concerned. If there has been no application to so resume the hearing within 28 days from the date of this interim decision, then I shall issue substantive findings herein. Judge P F Barber District Court Judge WELLINGTON dca33698.doc(nl)