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Accident Compensation Cases

Gouldstone v Accident Compensation Corporation (DC, 17/03/00)

Judgment Text

MINUTE AND DIRECTIONS OF JUDGE M J BEATTIE 
Judge M J Beattie
This is an appeal from the decision of a Review Officer given on the 26th of August 1999, the issue being whether the appellant was entitled to cover for an injury said to have been caused to his left shoulder on or about 20 October 1997 whilst he was in the employ of the second respondent. 
The contention of the appellant was that from 1988 to June 1997 he had been employed by the Auckland City Council as a Pool Inspector. In June 1997 he suffered a stroke and when he was fit enough to return to work the position of Pool Inspector was no longer open to him and he was re-deployed to the position of Records Clerk. He contends that whilst working in that position as Records Clerk he reached for some files on a top shelf causing a straining of the tendons of his left shoulder. 
On the 29 January 1999 the appellant lodged a claim for medical treatment costs with the Corporation and subsequent inquiries indicated that the appellant first sought treatment from his GP for this injury on 28 January 1999. 
At sometime subsequent the appellant advised that he contended that this injury was in fact an aggravation of an old shoulder injury which he had suffered in an accident in 1975 when he was employed as a motor mechanic. He had injured his shoulder in the course of that employment. 
After receiving a report from the appellant's GP, Dr Cunningham, the Auckland City Council, as an accredited employer, advised the appellant that it was not accepting his claim on the grounds that the information regarding him sustaining an injury was insufficient and that as his claim was lodged more than 12 months after the date of the accident his claim was thereby rejected pursuant to section 63 of the 1992 Act. 
The Review Officer similarly considered the appellant's claim in the light of section 63 and on the prejudice to the employer that would apply in the particular circumstances of his case. In was on that basis that the primary decision to decline cover was confirmed. 
When the matter came before me on appeal counsel for the first respondent had indicated that the Corporation was searching its records to see if it had had any record of a claim for cover made by the appellant back in 1975, a contention that the appellant had asserted prior to and at the hearing. However as of the date of the hearing of this appeal the Corporation was not able to advise on this aspect. 
It is clear from the file that from an early stage the appellant indicated that the injury he suffered in October 1997 was an aggravation of a pre-existing injury and that he had had a restriction of movement of his left shoulder ever since that 1975 injury. 
If indeed the appellant's injury, as he claims it to have occurred, is accepted then the medical evidence which has been adduced both from his GP and from Dr Dryson, an Occupation Medicine Specialist, would indicate that there is a strong likelihood that it is an aggravation or exacerbation of the 1975 injury. In those circumstances, I consider that it is not proper for this Court at this time to consider an appeal which essentially is on the decision of whether or not the first respondent was correct to invoke the provisions of section 63 of the 1992 Act when indeed the whole question of cover under section 8, or indeed under section 7 for the 1997 incident, should be considered or, that the matter should be considered under section 8 as an exacerbation of the 1975 injury. 
As an observation I note that at least for the purposes of section 7 of the Act the appellant's claim has been lodged within time. Furthermore, section 63 or its successor cannot apply where the appellant has already been granted cover for the 1975 injury and his present claim is determined to be a reoccurrence of that injury. 
For these reasons therefore, I direct that the Corporation investigate the appellant's claim for payment of treatment and other medical expenses and entitlements that may arise from the incident of October 1997 if that injury can be determined as being connected to a shoulder injury for which he contends he was granted cover in 1975. Alternatively the Corporation should investigate and consider whether the appellant is entitled to cover under either sections 7 or 8 of the 1992 Act for his 1997 injury as a stand alone claim and not being attributable to any prior injury, whether or not any such prior injury had been one for which cover had previously been granted. 
For the purposes of this enquiry the Corporation should put aside consideration of s 63 of the 1992 Act or its successor as its relevance or applicability is highly questionable. 
In view of the foregoing directions, I rule that the review decision of 26 August 1999 be quashed and pursuant to section 164(2)(b) of the Accident Insurance Act 1998 I require the Corporation to undertake the inquiries and consider the appellant's claim in the manner directed above. 

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