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Accident Compensation Cases

Tumahai v Accident Compensation Corporation (ACAA, 02/05/89)

Judgment Text

B.H. Blackwood Member
This is an appeal against two awards made under section 79 of the Accident Compensation Act 1982 following two separate accidents sustained by Mr Tumahai, the first on 9 November 1984 and the second on 9 March 1986. 
On 19 November 1984 Mr Tumahai lodged a claim with the Corporation in respect of an accident which occurred on 9 November 1984. Then 31 years of age he was employed by the Auckland City Council as an attendant at the tepid baths in Hobson Street, Auckland City, when he injured his lower back while lifting a drum of chlorine. He immediately developed low back pain and had to go off work. The symptoms became progressively worse, and eventually he was operated upon at the Auckland Public Hospital where following a myelogram he had an excision of the lumbo-sacral prolapsed intervertebral disc. This proved dramatically successful, and two weeks later he returned to his employment as an attendant at the Auckland tepid baths. 
On 12 March 1986 Mr Tumahai lodged a further claim with the Corporation following an accident which he stated had occurred on 9 March 1986, again at the Auckland tepid baths, when he slipped over on a wet passageway and suffered a recurrence of his back injury. He returned to work at the tepid baths on 6 April 1986, and subsequently was made redundant when the City Council transferred control of the baths to private interests. It is accepted that the redundancy had nothing to do with the appellant's back injuries. It appears that he then took on a job as a builder's labourer, but following some heavy shovelling there was a further exacerbation of the pain, when he ceased work, and has apparently been unemployed since. I am not concerned about whether or not there has been a third accident as this appeal relates only to the awards made following the accidents which occurred on 9 November 1984 and 9 March 1986. 
Following the first accident the file was closed without any apparent attempt to assess disability and make awards under sections 78 and 79 of the Act. Following the second accident the matter was reopened, and on 21 January 1988 Mr PWB Lane, orthopaedic surgeon, issued a report to the Corporation. Part of that report reads: 
He is still unemployed. He has attempted a number of manual jobs but hasn't lasted longer than three days. He has no particular skills. He is married with two children and was a keen rugby-league player and enjoyed his golf. He states that the back pain is confined to the area of his operation. Occasionally it may disappear entirely. He may wake up without it but any significant physical activity brings it on again. If he attempts any lifting or gardening he pays for it. Often at night he is uncomfortable and discomfort may wake him up. I found him articulate and a good historian. I felt that his story was entirely genuine. On examination he was 5 foot 11 tall and weighed approximately 13½ stone. He walked without a limp. When asked to undress he had obvious difficulty in bending and also climbing on to the examination couch. I noted a 10 cm long surgical incision in the mid line of the lower back. There was marked lumbar spasm which was obviously genuine and he could only flex as so far as fingertips to knee level. There was virtually no movement in the rigid lumbar spine. He complained of no symptoms in the legs and there was nothing to find on neurological examination. X-rays were not taken as the report of x-rays one year ago was available. 
In 1984 this man sustained a severe lumbo-sacral disc prolapse following a heavy lift and underwent surgery with initially an excellent result. If he had been assessed under Section 78 say six months after this surgery then assessment would be as per second Schedule surgical excision of disc no fusion good result no persistent sciatic pain 10% of total. 
Unfortunately the initial good result has not persisted. There are now severe residual symptoms confined to the lower lumbar area. He has not responded to conservative management. A spinal fusion could be treatment option but Mr Tumahai has indicated that he would not be willing to undergo a procedure, the results of which could not be guaranteed. The exacerbation of symptoms were triggered by a heavy fall onto his buttocks. It is arguable whether this should be regarded as a separate new injury. In my opinion whether or not we consider that the fall onto his buttocks constitutes a separate accident the final assessment under Section 78 remains the same. It might be argued that he is still receiving treatment with additional treatment proposed and that this might effect the final assessment. I think this is unlikely. Mr Tumahai has already indicated that he doesn't want the surgery. 
In summary I think it reasonable to assess him as having sustained a single injury in 1984 and disregard an assessment made soon after a seemingly successful operation and substitute for this a current assessment as per second Schedule ‘surgical excision of disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modifications of activity, 20% of total.’ 
If the Corporation wishes to consider two separate accidents then in my opinion the assessment would be in respect of the first accident 10% disability and an additional 10% with respect of the second injury. ”
To some extent that report is confusing when it relates to Mr Tumahai's “present state”, because at the time Mr Lane examined Mr Tumahai it appears that Mr Tumahai was suffering from the effects of the third accident, if in fact that was an accident, and as I have mentioned I am not concerned with the third incident but only the first two. 
Following receipt of that report the Corporation made assessments under sections 78 and 79 of the Act. It awarded a sum of $1,700 under section 78 in respect of each accident, and the sum of $5,000 under section 79 in respect of each accident. The awards under section 78 were not disputed, but Mr Tumahai sought review of the awards under section 79. 
The review hearing took place on 4 May 1988 before Mr R A Weir, review officer, who on 20 June 1988 issued his decision increasing the award in respect of the first accident from $5,000 to $8,000 but confirming the award of $5,000 in respect of the second accident. From that decision the appellant has appealed. 
Evidence at the Review Hearing 
Mr Tumahai gave extensive evidence before the review officer, when he was represented by Mr Spencer, and the review officer was careful to differentiate between the two accidents. Following his return to work after the first accident, Mr Tumahai was initially on light duties, mainly desk duties at the tepid pools. After a short period, however, he felt a lot better and he then returned to his former duties as a pool attendant. He said that “there was always a little bit of pain there, but I recovered very quickly from it and the swimming helped a lot too, the type of swimming I was doing”. Some five or six months after the operation to his back most of the pain had disappeared, and what remained was bearable. 
The first accident had an adverse effect upon his sporting activities. Although reference was made to his playing rugby league, it became apparent under questioning that his rugby league days had really finished before he sustained the first accident. He was however at the time of the accident a regular golfer at the Pukekohe Golf Club, but following the accident and his recovery he endeavoured to take up golf again with a lack of success because of pain. Before the first accident he had been a keen scuba diver, engaging in that activity some 30 or 40 times a year. Following the first accident he was advised by specialists not to attempt any type of activity which would put weight on his back, and thus he gave up scuba diving. 
He claimed that sexual relationships with his wife ceased after the first accident, and that physical activities around his home were restricted. He said that he had to cease gardening and mowing lawns, although he had no problem walking but only with lifting or bending. After he recovered from the operation he had no problem sleeping, and he said “after six weeks or so I was pretty near back to normal except for just a bit of pain that was still there”. Cosmetically there was an operation scar following the surgery on his back. 
Following the second accident Mr Tumahai said that the pain was a lot worse, but after a short period he returned to his normal duties as a pool attendant at the tepid baths. He said “there wasn't a lot of pain down the legs, but it was just the - just at the point of operation - that was where the pain was … but I was keen to get back to work and I told my doctor that I was earning, feeling pretty good, but the pain was still there, but it had always been there since like it had always been there right from the operation but nowhere near as bad.” 
In submissions which he made to the review officer Mr Spencer asked that the award under section 79 of the Act in respect of the first accident be increased to the maximum of $10,000. He said that he did not really think he could put much forward for the second accident, but he submitted that Mr Tumahai was entitled to “a little bit more, not the maximum” in respect of the award for the second accident. 
At the hearing of the appeal Mr Spencer submitted that the maximum award of $10,000 should be made in respect of each accident. He was critical of the fact that the Corporation had closed the file in respect of the first accident without considering awards under sections 78 and 79 of the Act, and that the issue resurfaced only when Mr Spencer's firm became involved following the second accident. He adopted submissions which he had made to Judge Willis in the case of E Stanley-Hunt (Decision no. 68/89) which he had made on 8 March 1989 but on which at the time of the hearing of this present appeal, the decision had not been released. The essence of the submissions in Stanley-Hunt was that the principles applied in Stafford (Decision no. 992) should not be strictly interpreted because of the delay of the Corporation and the premature closure of Mr Tumahai's file. 
For the Corporation Mr Reid submitted that the review officer had quite meticulously dealt with each accident in turn and awarded the appropriate compensation. He submitted that it was common ground that the 1984 accident was the more serious of the two, and that had the claim been dealt with separately and the awards made in time, the 1984 accident would have attracted the higher award. He submitted that this was reflected by the review officer when he increased the award in respect of the first accident to $8,000. He submitted that the review officer had not misdirected himself, or applied any wrong principles, and he had not failed to take into account any vital part of the evidence. On that basis Mr Reid submitted that the awards were fair and reasonable in the circumstances. 
The correct approach in considering two awards, following two separate accidents, is well settled. First the Corporation should examine the evidence in relation to the first injury, and make a proper assessment of a lump sum award under section 79 in respect of that accident. In respect of a subsequent accident, the Corporation should then examine the question on the basis of the effect of the second accident on a person who was already suffering from a permanent disability. The basis on which awards should be made when they are made more than two years after an accident has occurred is also well settled. The principles established by Stafford have been followed consistently by the Corporation, review officers and the Appeal Authority. In terms of the second proviso to subsection (1) of section 79 of the Act each award must be made as at the expiration of the period of two years following the accident, but there can be the advantage of hindsight by taking into account factors which have arisen after the expiration of the two year period. I reject any suggestion that a delay in making an award under section 79, attributable to the premature closing of a file by the Corporation, per se justifies an increase in an award under section 79. 
From the evidence given before the review officer it is clear that the significant effect upon the lifestyle of Mr Tumahai arose from the first accident. Although he was able to return to his normal duties at the tepid baths, his sporting activities were affected, his domestic life was affected, and his ability to carry out household chores was affected. Those effects were not dissimilar to those suffered by the appellant in the case of Appleby (Decision no. 3/85) which justified in that case the maximum award of $10,000 in respect of injuries sustained some years earlier. The effects on Appleby's lifestyle were perhaps more severe, but there is some similarity between the post-accident effects on both Mr Appleby and Mr Tumahai. Appleby involved a leg injury, while the present case, of course, involved a back injury. The review officer took into account all the factors, which I have mentioned, relating to the effects upon Mr Tumahai's lifestyle, and I am reluctant to interfere with his decision when in taking those matters into account he increased the award from $5,000 to $8,000. Because, however, of the similarity of symptoms between the present case and that of Appleby I feel that the maximum award of $10,000 is justified in respect of the first accident because of the severity of the effects upon a relatively young man. In respect of the first accident I accordingly allow the appeal and increase the award under section 79 to the maximum of $10,000. 
In respect of the second accident I believe that the Corporation was more than generous in awarding $5,000 and the review officer was correct in upholding that decision. The evidence relating to the effects of the second accident was limited. Mr Tumahai returned to work after a brief period, and his subsequent redundancy had no bearing on the current issues. As I have mentioned some confusion may have arisen as to the appellant's present state of health because of what may have been a third accident, if indeed the third incident was an accident at all. With that incident I am not concerned in this present appeal. Insofar as this appeal concerns the lump sum award of $5,000 under section 79 for the second accident, it is dismissed. 
I award costs to the appellant of $400. 

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