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Accident Compensation Cases

Fitzsimons v Accident Compensation Corporation (DC, 04/08/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether the appellant suffered her personal injury by accident as that word is defined by section 28 of the Act. 
The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 
The appellant is presently aged 42. On 9 August 1999 the appellant consulted her GP, Dr Nichols, concerning pain in her lower back which had arisen two days earlier and which had persisted through to the time of her seeing her doctor. Her GP diagnosed low back strain and prescribed some physio and then, following another consultation a week later when she was still suffering from her back injury, a claim for cover with the respondent was lodged. 
The first documentation provided to the respondent regarding the appellant's claim was the medical certificate signed by Dr Nichols on 16 August 1999 evidencing the fact of the injury and certifying her as unfit for work for seven days. That certificate was followed by a further certificate dated 23 August 1999 advising that the appellant was still unfit for normal work and that she was still requiring physio treatment for her back strain which was now described as probable strain sacroiliac joint and irritation right sciatic nerve
On 2 September 1999 the appellant made written application for weekly compensation and on the ARC 1 form that she completed for that purpose, she stated as the cause of the injury on that form “Planting shrubs” 
At the time that application was lodged the appellant was interviewed by her initial case manager, Mr Squire, and the form described as “initial interview” states, inter alia, as follows: 
“Digging for one hour — to plant shrubs — no sudden onset of pain —went home — standing up and sat down experienced pain across the stomach and back — discomfort gradually increased. ”
On 3 September 1999, Mr Squire wrote to the appellant's GP, Dr Nichols, requesting further particulars of the circumstances of her injury, that letter stating, inter alia, as follows: 
“Mrs Fitzsimons has lodged a claim for a back injury sustained on the 07/08/99. She stated that earlier that morning she had spent approximately one hour planting shrubs for the local community, drove home and then swept the decking at home. Mrs Fitzsimons advised that she experienced some discomfort to her abdomen and lower back as she sat down subsequent to sweeping the deck. 
I have explained to Mrs Fitzsimons that for a claim to be accepted the injury sustained must be the result of an accident ie an application of force or resistance external to the human body. In this case Mrs Fitzsimons did not experience any discomfort until after she sat down at home. This therefore would suggest the definition of an accident has not been satisfied. 
It is possible that the claimant's discomfort/injury resulted from a series of events ie planting the shrubs and sweeping the deck. However, to clarify the significance of these activities and the causation of her injury I would be grateful if you would provide a report …  ”
On 14 September 1999 Dr Nichols responded to that letter and responded, inter alia, as follows: 
“The clinical findings on my examination 09/08/99 were consistent with acute lumbar muscular spasms. There is very limited forward and lateral flexion of the lumbar spine and any movement of the back was extremely painful. 
It is assumed that the repetitive bending over to plant the shrubs and sweep the deck have produced these symptoms. ”
The appellant's claim was then referred to Dr Smidt, its Branch Medical Advisor. She noted that in her view the pain onset did not appear to be particularly related to any specific gardening activity and that the evidence did not support a finding that the appellant had suffered injury by accident. 
As a consequence of that advice, the respondent wrote to the appellant on 22 September 1999 advising that her claim for cover and compensation had been declined on the grounds that the circumstances of her injury did not accord with the definition of ‘accident’ in the Act, being the application of force or resistance external to the human body. 
The appellant sought a review of that decision. 
For the purposes of that review hearing, Diana Leicester, the Physiotherapist who treated the appellant for her injury, made a statement on 18 October 1999 that statement stated: 
“Cindy presented on 9.8.99 with severe right lower back and posterior thigh pain. This occurred after lifting a spade whilst digging. Her signs and symptoms and response to treatment are typical of a severe L5/S1 posterior derangement of the disc. The derangement has now reduced and Cindy is able to tolerate sitting but there is dysfunction/neural tethering of the right L5/S1 nerve roots. Lumbar flexion as a result is 80% of normal and is steadily improving. ”
That report from Diana Leicester was forwarded to the Review Officer by the appellant on 18 October under cover of a letter which stated “I am enclosing a physiotherapy report which I would like included in the above review. On my initial interview with the ACC they said they would make contact with my physiotherapist but never did and I feel this report outlines the injury sustained while digging holes and planting shrubs.” 
Following on from that letter Sharon Cuff, who had been administering the appellant's claim, wrote to Dr Nichols seeking further clarification of what may have been stated at the time of the appellant's first consultation with him on 9 August 1999. 
Dr Nichols replied on 22 October 1999 stating as follows: 
“As you know, I saw Cindy 09/08/99 complaining of low back pain which came on suddenly while she was planting some shrubs at her local kindergarten 07/08/99. The pain originally started in her low abdomen but soon radiated to the lumbar spine. When I saw her that day her pain was localised to her lumbar spine and radiated down her right thigh. 
As you are aware, there is no evidence of significant force applied directly to the back. Her story is namely one of repetitive bending over, planting her shrubs, during most of the day. I understand she also did a lot of sweeping on that day. ”
On 2 December 1999 Mr Rowlett, representing the appellant, wrote to Dr Nichols seeking his opinion as to whether the events as related by Mrs Fitzsimons would have been the probable cause of her back injury, and secondly, whether he agreed that digging holes, lifting dirt, pulling roots and sweeping deck constituted external resistance to the bodily movements involved in the activities described. 
Dr Nichols responded to that request on 6 December 1999 stating as follows: 
“As you know, Cindy spent some time planting shrubs which involved digging holes, lifting earth, pulling various roots and stones and planting shrubs themselves. She also swept a deck with an outside broom for a short time after this. 
In my opinion, these events were the probable cause of her back symptoms. The digging of holes and planting of shrubs involve a great deal of bending and lifting. Also the actual removal of soil involves pulling against a spade handle or pulling against the various tree roots, and it would seem reasonable to assume that some form of strain would have occurred in her lumbar spine. 
I would agree that the activities described above would involve considerable external resistance to the bodily movements used in such actions. Even if no external forces were involved, there is a great deal of internal forces expended to overcome this external resistance. ”
At the review hearing which took place on 21 December 1999 the appellant gave evidence and particular passages of that evidence state as follows: 
“A.
Well we went out first thing in the morning to plant the shrubs, to dig the hole. I spent an hour there. Towards the end of that you could feel the pain starting to start in the bottom of the spine. After that time I went home which took me probably 2 minutes from where I was to home. When I got home I went and swept the deck and at that point you could feel the pain getting worse in the lower back. I carried on sweeping and until I finished came back inside. Sat down hoping to relieve the pain, that's when I felt the sudden pain across the bottom of the stomach, and from the bottom of the spine right down through the butt. 
Q.
What were you actually, what did the planting of the shrubs involve in your own words. 
A.
Well I had to dig the holes to put the plants into. Quite a few of the holes that I had to dig, there was tree roots inside them and stones which I had to get out of the hole before I could put the plants in. 
Q.
So you were bending over to put all. 
A.
Yes, yes, and trying to split the root of the tree with the spade to clear the hole so I could get the spade, arh, shrub …  ”
Mr Squire, who had conducted the initial interview with the appellant, also gave evidence and he stated that he recalled asking the appellant whether she had suffered any pain whilst she was doing the activity and it was negative and he denied that the appellant had told him that she had first felt the pain whilst still doing the digging. 
The final piece of evidence that was referred to by counsel in submissions was that given by Mrs Cuff, who had written the letter of declinature and who was telephoned by the appellant, Mrs Cuff gave the following evidence about that discussion: 
“And in that discussion she did say to me it may, it would have been better that she had actually not told the truth and I did say to her that what at any time the truth is always the best. That was when I was actually saying to her that it's a likelihood of the claim being declined. ”
In her decision the Review Officer ruled that it was only assumed that the injury may have been caused during the planting and/or sweeping and it could equally have been caused by the act of sitting. She ruled that the evidence did not establish a causal relationship between any particular external force or series of events as opposed to an internal force being responsible for the appellant's back problems. 
As an ancillary matter the Review Officer declined to allow the appellant the costs associated with Dr Nichols' report of 6 December, it being declined as she considered that the report did not add any further medical information to that he had already supplied in earlier reports. 
For the purposes of appeal to this Court no further evidence was sought to be adduced. 
Submissions 
Mr Rowlett, advocate for the appellant, submitted that the evidence of Dr Nichols established both the fact of injury and its causes. 
The digging and sweeping events were a series of events involving the application of a force or resistance external to the human body and therefore come within the definition of accident. 
Mr Sherriff, counsel for the respondent, submitted that the weight of evidence indicated that the appellant did not suffer back pain until she was in the process of sitting down, sometime after completing the activities of planting and digging. 
The appellant's subsequent contention that she first suffered back whilst digging is not credible given the clear account she provided to Mr Squire at her first interview. 
There is some conflict in the accounts given by Ms Leicester and Dr Nichols. 
The weight of the medical evidence suggests the appellant's back pain is attributable to the action of the appellant sitting down or repetitive bending and unconnected with any specific application of external force or resistance. 
The appellant cannot establish a clear connection between her back injury and an event or series of events involving the application of force or resistance external to her body. 
Decision 
Section 28 of the Act provides the definition of “accident” and the definition relevant to this issue is that of section 28(2)(a) where an accident means a specific event, or a series of events that involves the application of a force or resistance external to the human body; and is not a gradual process. 
That definition is exactly the same as that which applied under the 1992 Act and accordingly, the jurisprudence that has arisen from decisions under that Act is applicable. That jurisprudence includes decisions where the Court has distinguished between the interaction of body parts internally which have caused injury but which have not involved any external force or resistance, from those that did involve some external force or resistance. A decision on point in that regard is Stevens (196/98). 
In that decision the Court stated that the common thread that must exist is that the source of the force or resistance must come from without and not from within the human body of the injured person. It is that latter state of affairs which the respondent asserts is the case with this appellant and that her back strain occurred spontaneously during the act of sitting down and did not involve the application of any force or resistance on her back external to her body. 
From the facts as I have found them to be, I consider the respondent's contention to be less than plausible and certainly not the more probable cause of the appellant's back strain. 
The incontrovertible fact is that the appellant was digging holes with a spade for approximately one to one and a half hours and whilst the object of the digging was the planting of shrubs, that process did require digging and the word “digging” appears twice in the initial interview notes taken by Mr Squire. 
At the time the appellant was talking to her GP and to Mr Squire she was not concerned with the niceties of the definition of “accident” under the Accident Insurance Act and I do not see any diminishment of the appellant's evidence because she may have been talking of bending and planting and that being what she told Dr Nichols and which is what he relayed on to the respondent. 
As the appellant has advised right from the outset that she was involved in a digging activity, I find there is no lack of weight to be given to Dr Nichols subsequent advice given to Mr Rowlett in his letter of 6 December 1999 which was in response to Mr Rowlett's questions in which Mr Rowlett admittedly did set out what he contended the appellant had been doing. I find that none of the activities that Mr Rowlett referred to and to which Dr Nichols responded are unusual when one is engaged in the activity of planting shrubs which involved the digging of holes in which to plant them. 
Equally, I find that whilst the notes taken by Mr Squire do indeed offer great assistance, they do not necessarily tell the whole story and I note that he makes no mention in those notes of the appellant going from digging and planting to sweeping her deck, yet she must have told him that she was engaged in that activity as he included that in his letter to Dr Nichols of the 3rd of September. For that reason therefore, his notes cannot be necessarily regarded as being a full record of all relevant information. 
The evidence of Dr Nichols in his letter of 6 December confirms that the activities that the appellant was engaged in would involve considerable external force and resistance and that the events that the appellant did undertake that day, in his opinion, were the probable cause of her back symptoms. 
Whilst it may the case that the appellant first experienced the severe back pain that subsequently plagued her from the time she sat down, there is no medical evidence to suggest that it was the act of sitting which caused that condition, and I find that the fact that there is a temporal connection does not mean that there is a causative connection. 
Accordingly then, I find that the appellant's activities in digging and sweeping were a series of events which were the probable cause of her back strain and that the circumstances under which she suffered that back strain do come within the definition of accident in the Act and as such the appellant is entitled to cover for that personal injury by accident. 
The respondent's decision to decline cover is accordingly revoked and cover for her injury is hereby granted to the appellant. 
There was an ancillary issue raised by Mr Rowlett, namely the refusal by the Review Officer to allow the appellant the costs of Dr Nichols' report of 6 December 1999. 
In her decision, the Review Officer authorised the payment of costs to the appellant's advocate and travelling costs for the appellant but ruled that the request for payment of Dr Nichols' 6 December report be declined as she did not consider that the report added any further medical information to that already supplied by Dr Nichols. 
The review hearing was conducted on 21 December 1999 and as such the provisions of the Accident Insurance Act 1998 apply. 
Section 151(2)(b) and (3) state: 
“(b)
the reviewer may award the applicant costs and expenses if the reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review. 
(3)
the reviewer must award costs and expenses under this section in accordance with the regulations made for the purpose. ”
The review decision was not in favour of the applicant but by her decision to award the applicant cost pursuant to section 151(2)(b) it must be assumed that the Review Officer considered that the applicant had acted reasonably in applying for the review. 
Having regard to the wording of s 151(2) I find that once the reviewer makes the decision that the applicant acted reasonably in applying for the review, there is no discretion to “pick and choose” what costs and expenses the reviewer may allow or disallow. If the review application has been brought reasonably then all the costs and expenses, as are provided for in the Schedule to which an applicant may be allowed, are to be granted and to rule otherwise I find would be an improper exercise of the limited discretion which a review officer is given by the provisions of s 151(2)(b). 
In those circumstances therefore I find that the Review Officer was wrong to disallow the appellant reimbursement for the costs of Doctor Nichols' report which was prepared specifically for the purposes of the review hearing. 
Accordingly therefore the appellant is entitled to be paid for the costs of Dr Nichols' report provided it comes within the costs guidelines contained in the schedule. 
The appellant being successful in this appeal is entitled to costs in relation to the appeal and I fix those costs at $800.00. 

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