YMCA Christchurch v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 127/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN YMCA CHRISTCHURCH Appellant (Appeal No. DCA 353/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS Two issues arise in this appeal being, 1. whether the review officer was wrong to hold that Webster's (the worker) ongoing incapacity was the result of a work injury on 3 April 1997 and that the claim costs should continue to be experience rated to the appellant; and 2. whether the review officer had jurisdiction to issue the review decision on the foregoing issue. The background to the appeal is that the worker lodged a claim for cover and treatment expenses with the respondent in April 1997. In the claim form she noted that she had suffered an injury when she "slipped on wet floor at work and injured right hand trying to prevent fall". Her general practitioner gave the diagnosis "sprained Rt shoulder/elbow and Rt hand. Tender Rt middle MCT but no apparent # or dislocation today". Her general practitioner considered that the worker would be able to return to work at the expiration of four days. The respondent then sent the required work 2 questionnaire form to the appellant and this was completed on 1 July 1997 in which the appellant accepted that the worker had suffered a work injury on 3 April 1997 as claimed On 11 June 1997 a further medical certificate indicated that the worker continued to suffer from problems in the shoulder and would be off work until 30 June 1997. On 11 July 1997 the respondent notified the appellant that it was accepted that the worker had suffered an injury which arose out of and in the course of her employment and that her claim was accepted as a work injury which would affect the appellant's experience rating. A further medical certificate of 20 August 1997 certified the worker as still being unfit for work due to the original injury. On 1 September 1997 Mr J A Bonkowski, a neurosurgeon, stated that he was unable to define the exact cause of the worker's painful right arm until an MRI scan was undertaken. His interim opinion was that the worker "has probably sustained a local strain of the hand and arm itself, of a ligamentous of muscular nature and because of a lack of movement of the injured arm, this has now progressed to a capsulitis of the shoulder joint, which further restricts arm movements and causes increasing pain." When the MRI scan was completed the worker was referred to Mr I Penny, an orthopaedic surgeon, who was unable to give a clear diagnosis because he thought that the injury did not "really fit with an impaction defect but it may be resulting from a Hill-Sachs lesion." He suggested that a CT scan would be of assistance. In February 1998 Mr Penny reported that the CT scan confirmed a full thickness tear of the rotator cuff but showed no sign of any sinister lesion. On 4 March 1998 the appellant applied for a review of the respondent's decision of 8 December 1997 in which it was advised for the experience rating purposes the costs associated with the worker's claim would be included in its work history. The review hearing was commenced on 6 May 1998 but was adjourned part-heard when the appellant raised questions as to the worker's two earlier claims in 1982 and 1985 for back strains and an OOS claim in 1995. It appears that it was accepted that the OOS claim was insignificant because following that the worker had returned to normal duties after a period of three weeks. In her decision the review officer concluded that on the available medical evidence the worker's incapacity was as a result of the accident on 3 April 1997 and that accordingly the respondent was correct to associate the costs of the claim as a work injury. It is against that decision which the appellant now appeals. When the appeal was lodged the respondent arranged for the worker to be examined by Mr A Rutherford, an orthopaedic surgeon. In his report which is dated 1 April 1999 Mr Rutherford recorded details of the slip on the floor on 3 April 1997 and the subsequent painful shoulder. He noted that the worker had pain on moving the shoulder with some weakness of the muscle around the shoulder which was consistent with a torn rotator cuff. His report then continues: 3 "On the 22nd of May 1998 she underwent surgical decompression of the rotator cuff tendon in the shoulder and a thinned damaged area of tendon was excised and repaired. She made a reasonable recovery from that, mobilised the shoulder well and was discharged from further follow up on the 31st of July 1998. Mrs Webster has had a rotator cuff tear and this is a direct result of her fall on the 3rd of April 1997. In general rotator cuff tears occur in middle aged patients in whom the tendons have become worn and weakened over a period of time and then following a relatively minor injury such as a fall on an outstretched hand, a complete tear occurs. Symptoms may vary at the time and it is not uncommon for symptoms to become more troublesome as time goes on as the tear retracts or further inflammation occurs in the shoulder. Mrs Webster's incapacity from the time of her accident in April of 1997 until the surgery has been solely the result of her rotator cuff injury and subsequent pain and weakness in the shoulder. Her subsequent surgical repair was a direct of her rotator cuff injury. Mrs Webster's previous back claims have no relevance to her current problems with her shoulder and there is no causal or other relationship between the two. It is difficult to comment on the right arm OOS claim without more information, but as stated above rotator cuff tears tend to occur in middle aged people who have a worn and weakened tendon. It is possible that the symptoms complained on in June of 1995 were due to some irritation of the tendon, though it is not possible to confirm that on the amount of information provided. Mrs Webster's intermittent incapacity is quite consistent with a rotator cuff tear where the problem is predominately pain and weakness of the shoulder. Patients may be able to manage some of their duties and symptoms may vary in severity such that the work history as provided is not uncommon." The respondent is granted leave to adduce that report in evidence. In support of the appeal the appellant has submitted that in its work injury questionnaire completed on 1 July 1997 it only accepted the work injury to the worker's right wrist as a minor accident which affected her for only four days. It submitted that it had not accepted the condition reported some two months later which had incurred substantial costs. The appellant submitted that the medical opinions confirmed a medical condition which it did not consider was the result of the accident on 3 April 1997. The appellant submitted that the worker's history of problems related to similar symptoms as that now claimed to have been a work injury. The appellant considered that the worker had suffered only a minor accident which was not consistent with the incapacity now claimed. 4 The respondent submitted that the letter of 8 December 1997 was not a decision which carried review rights and referred to the decisions in Cadbury Confectionery Ltd (207/98) and Nelson Marlborough Health Services (Appelman) (24/99) and Nelson Marlborough Health Services (Mckenzie) (25/99) and that the medical evidence, especially that of Mr Rutherford, clearly established that the accident of 3 April 1997 was the cause of the worker's continuing problem. The appellant indicated in its letter confirming that it wished the appeal to be heard on the papers that the legal situation submitted by the respondent was a matter on which it was unable to comment because it did not have the funds to obtain legal representation. In the decision in Cadbury Confectionery Judge Beattie held that the notification of an employer's case history is not a decision entitling the employer to apply for a review. He held that the until an experience rating assessment was issued to the employer there was no decision capable of review pursuant to s.89. In the Nelson Marlborough Health Services cases I adopted Judge Beattie's reasoning and held that in respect of both of those cases in which the worker concerned had suffered a work injury which the employer accepted as a work injury the employer there were no grounds on which the employer could then apply for a review. In each of those cases the employer, on receipt of the claims history notification, sought a review of the supposed decision contained in that notification, the respondent had gone one step further and issued a letter accepting the worker's claim as a work injury and stating that a right of review applied. I held in each of those cases that as the employer had already accepted that a work injury had occurred the subsequent letter to the employer accepting the claim as a work injury and stating that a review right was available was a mistake and had no standing so far as the subsequent review hearing was concerned. The same principle applies in this case. Hence the appellant has accepted that the worker suffered a work injury and only raised the issue of a review when it received its claims history notification. That is notification which is not a decision capable of review pursuant to s.89 and accordingly the review officer had no jurisdiction to consider the review on the basis she did. On the second issue relating to the medical position it is quite clear from all the medical evidence on the file which is confirmed by the report of Mr Rutherford that the accident on 3 April 1997 was the cause of the worker's ongoing shoulder problems which was a work injury accepted by the appellant and the respondent. It is quite clear that the worker's problems arose out of that injury which occurred in the course of her employment and that the respondent was correct to accept it as a work injury. The notification of the costs of this claim being part of the worker's work history is not a ground for review and no right of review arises until the appellant receives its experience rating assessment. 5 The appeal is dismissed. DATED at WELLINGTON this 2 15- day of May 1999 A W Middleton District Court Judge Dca35398.doc(rd)