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Accident Compensation Cases

Sanford South Island Ltd v Accident Compensation Corporation (DC, 18/01/01)

Judgment Text

INTERIM DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issues 
[1]
I am asked to determine whether the respondent had the statutory jurisdiction, pursuant to s 422 of the Accident Insurance Act 1998 (“the Act”), to issue a decision to the appellant on 5 November 1999; and whether the claimant's injury of 4 September 1995 was a work injury so that its costs are to be attributed to the appellant. The respondent's stance to those two issues is in the affirmative, and the appellant's in the negative. The stance of the claimant is supportive of that of the respondent, namely, that there is jurisdiction for a decision to issue. 
[2]
The appellant's assertion that, due to the delay in notifying the appellant of the work-injury claim, the respondent was in breach of its obligations pursuant to s 65 of the 1992 Act, is a matter between the appellant and the respondent. 
[3]
The claimant disputes the contention of the appellant that the accident and injury are not work-related, and submits that it is not open for the appellant to question ongoing incapacity and entitlements under this appeal. Indeed, in the course of the hearing, by agreement all counsel agreed that the issue of deemed employment at the time of the accident, in terms of s 44 of the 1992 Act, will be addressed within a reasonable time after I issue the present decision on an interim basis and reserving leave to the parties to call further evidence and make further submissions. 
Background (as set out by Miss Ahern for respondent) 
[4]
On 4 September 1995 the claimant had an accident while at work at Sanford South Island Limited. The claimant was walking down a wharf with a dive bottle over his shoulder when he slipped. He fell forward taking most of the impact of the fall on his left shoulder. 
[5]
An accident report was completed that same day indicating an injury to the claimant's upper limb. The claimant did not immediately seek medical attention but, due to pain in his shoulder and bruising, undertook light duties for a period following the accident. The claimant stated that his shoulder never came back to normal. 
[6]
The claimant did not seek medical attention until he had a car accident. That occurred on 30 January 1996 at which time he raised with the doctor the issue of the earlier wharf accident injury. This consultation resulted in a claim form being lodged with the respondent on 22 February 1996. The claim noted that the injury was a result of “slipping on a frozen jetty”. The medical diagnosis was left shoulder sprain. 
[7]
The claimant did not receive weekly compensation until April 1996 and his incapacity at the time was attributed to his elbow injury. 
[8]
In late 1998 it became apparent that both the shoulder injury and the elbow injury were causing the claimant's incapacity. The respondent discovered that the request for a Work Injury Report in relation to the shoulder injury had not been sent to the appellant; therefore, this was sent to the appellant in May 1999. The appellant advised that it did not accept the injury as arising out of or in the course of employment. 
[9]
The appellant through its agent, Injury Management NZ, wrote to the respondent on 23 July 1999 disputing, inter alia, that the claimant was entitled to weekly compensation in relation to the shoulder injury and the fact that the costs of the claim were to be apportioned to the appellant. 
[10]
The respondent reviewed the matter and obtained further information from the claimant in relation to the accident. The claimant's letter of 2 November 1999 confirms that the shoulder injury occurred as a result of a fall suffered while working for the appellant in September 1995. 
[11]
On 5 November 1999 the respondent issued a decision to the appellant to the effect that the claimant's injury has been classified as a work injury. The appellant sought a Review of this decision. 
[12]
The Reviewer accepted the respondent's jurisdiction to issue a work injury decision and in noting there was no jurisdiction at the Review to address costs associated with the claim or entitlement issues, stated: 
“The issue before me is solely to consider whether the injury occurred as claimed. It does not extend to considering the entitlement of Mr Pope or the costs subsequently associated with the injury. ”
[13]
The Reviewer confirmed that the first diagnosis was of left shoulder strain and that was sufficient to establish personal injury. The Reviewer noted there had been a delay in the respondent advising the employer of the work injury, but that it did not consider such a delay automatically leads to a finding that an injury cannot be classed as work-related. Accordingly, the Reviewer found that the insurer's decision to accept the claimant's work injury was correct. 
Further Evidence 
[14]
There seemed to be no dispute that the evidence adduced to the Reviewer was inadequate — particularly, from the point of view of the claimant. Accordingly, the claimant (Mr C F Pope) gave evidence before me which I found very helpful as I assess him as a truthful witness. I accept his evidence which I shall now summarise. 
[15]
At the time of the accident the claimant, Mr Pope, had worked for the appellant for about seven years and was responsible for all maintenance on a number of the appellant's vessels in Nelson. He had enjoyed excellent health and fitness and a good record and was very rarely off work. 
[16]
His first accident occurred on 4 September 1995. The previous night he remembered he had forgotten to put a dive bottle on a vessel due to leave the harbour that day. A dive bottle is an air cylinder (compressed air) and reasonably heavy, although the claimant was able to carry one in each hand. The vessel was to leave the port at about 5.30 am, so that between 4.30 am and 5.00 am the claimant was walking down the wharf with the dive bottle over his shoulder. He turned down a ramp to the floating jetty where the boat was moored but, as he stepped off the ramp on to that jetty, his foot slipped and he fell forward. In the course of that he dropped the dive bottle and took most of the impact of the fall on his left shoulder. Although he felt sick, he did not then feel a great deal of pain and picked up the dive bottle and dragged it along the jetty with his other arm and put it on the vessel. He drove back home and lay down as he was not feeling well. 
[17]
Mr Pope went back to work at about 7.00 am that same morning and told his foreman about the accident. He went home again and lay down for a few hours but was back at work feeling a little better at about 9.00 am, and worked on light duties for the rest of the day. He continued with light duties for the next two days but noted on the morning after the accident that he had pain in his left shoulder and also in his arm. The fact that there was also an injury to his arm does not seem to have been made clear until the hearing before me. He also had some bruising on the inside of his elbow. He gradually increased the intensity of his work over the following two to three weeks. He did not see a doctor because he felt he could work out the discomfort and pain in his shoulder. He took some Voltaren for pain relief. He continued to work through Christmas and the New Year at his normal pace and on his normal extended hours. 
[18]
However, on 30 January 1996 Mr Pope was involved in a car accident when driving from the appellant's workshop down to the slipway. Another vehicle hit his vehicle head on but “I saw the incident ahead of time so I was able to brace myself. I did this by gripping tightly on the steering wheel”. That accident happened in the course of employment. Fortunately, Mr Pope did not seem to suffer any more than shock. 
[19]
However, about ten days later he started to have difficulties in sleeping at night because his shoulder ached. He persevered with this for another seven to ten days and then went to an accident clinic in Blenheim on 21 February 1996. A locum there felt that in the motor vehicle accident Mr Pope's shoulder had been forced back slightly further than it normally would be thus causing a strain, or sprain, and a need for physiotherapy. However, physiotherapy treatment did not improve matters and, in the course of that treatment, the elbow began to trouble Mr Pope. He had previously, in 1994, had an operation on that left elbow for tennis elbow. He saw the orthopaedic surgeon who had operated on the elbow and the surgeon believed the tennis elbow difficulties had returned, injected the elbow, and arranged a course of injections and physiotherapy for it prior to considering further surgery. 
[20]
Mr Pope continued his work with the appellant but was in considerable pain and discomfort from his shoulder and elbow, and simply could not manage his work. On about 12 March 1996 he ceased that job. 
[21]
Mr Pope saw the orthopaedic surgeon again in June 1996 for an update on his elbow, and throughout that time his shoulder pain had continued constantly despite physiotherapy. The orthopaedic surgeon (Mr Wilson) found that Mr Pope could not lift his arm above chest height and injected the shoulder and obtained x-rays. Mr Pope had further surgery on his elbow in October 1996 and the symptoms improved. 
[22]
In early 1997 he had two operations on his shoulder and the respondent paid half of the relevant costs. Despite various treatments, his shoulder did not seem to improve until an operation on it, which must have been in about late 1997 or early 1998, when it was found that there were still sutures in the area of the surgery from the previous shoulder operations in early 1997, plus other operational “mess”. That later surgery has given great pain relief so long as Mr Pope does not overload or stress the shoulder, and he is still endeavouring to build up his muscles around that shoulder, but needs to take medication for pain relief. 
[23]
Mr Pope was, of course, carefully cross-examined. There was focus on the fact that he was present at the Review Hearing, but the evidence there contained much less detail than given before me and it did not seem to be made clear that, when Mr Pope slipped on the jetty on 4 September 1995, he injured his elbow as well as his shoulder. There was also focus on the aspect that his case manager had understood that there was no injury to his shoulder as a result of the car accident. Mr Pope's response is that he is not a medical specialist but knows that his shoulder “got worse” soon after the car accident which, he insisted, occurred at work. He had not filled out a claim form after the car accident because, at the time, he had thought he was not injured. He made it clear that he had no shoulder problem at all prior to his slipping on the jetty on 4 September 1995. It was also clarified that at the surgery on his elbow a chip of bone was removed. It was specifically put to Mr Pope by Miss Ahern whether he was clear that his shoulder problem began with his slip at the jetty, and he responded: 
“Yes, I thought it would go away. I did not want to lose time off work. I had bills to pay and a mortgage and even when my employer put me on light duties I lost $100 per week. ”
Relevant Law 
[24]
There was, of course, reference to the definition of ‘work injury’ s 6(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 and under that Act to s 65 (Acceptance of Work Injury Claims), s 67 (Notice of Decisions) and s 89 (Application for Review). There was reference to s 422 of the Accident Insurance Act 1988 dealing with claims for cover lodged but not yet determined under former Acts, and to s 482 of that Act dealing with carry-over from former Corporation to new Corporation, and to s 18 of the Interpretation Act 1999 which provides: 
“18. Effect of repeal on enforcement of existing rights — 
(1)
The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty. 
(2)
A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty. ”
[25]
There was also much reference to case law but I prefer to focus on the facts of this case. 
Reasons for Decision 
[26]
The ARCI Act 1992 was repealed from 1 July 1999 except to the extent that it was saved by the AI 1998 Act. Section 422 provides that where a claim for cover is lodged but not determined prior to 1 July 1999, the Corporation must determine that claim for cover under the ARCI Act. 
[27]
In the present case the Corporation had determined the claimant's claim for cover arising out of the injury he sustained on 4 September 1995. Shortly after the claimant lodged his claim with the Corporation on 22 February 1996, the Corporation accepted it, and subsequently provided entitlements. In view of the Good Health Wanganui decision (Decision No. 300/99), the Corporation is required to issue a formal decision with review rights in every work injury claim. In 1999 the respondent advised the appellant that it accepted the injury as a work injury that was attributed to the appellant. 
[28]
Although there is no specific provision in the transitional provisions of the 1998 Act which deals with the respondent's ability to issue work injury decisions to employers after 1 July 1999, s 482 of that Act must allow the respondent to do this. 
[29]
The 1992 Act required the respondent to notify employers when it received work injury claims attributed to that employer. The respondent was also required to determine any dispute and issue a decision. This obligation is contained in s 65 of the 1992 Act, and was confirmed by Judge Hubble in Good Health Wanganui
[30]
The obligation to issue work injury decisions existed as at 1 July 1999 in respect of work injury claims where employers had not been formally notified of the respondent's decision to accept a claim as a work injury. 
[31]
Section 482 of the 1998 Act provides that on 1 July 1999 all rights and liabilities of the former Corporation vest in the Corporation established by the 1999 Act. “Liability” is defined in the Concise Oxford Dictionary (7th edition) as “being liable … ”. “Liable” is, in turn, defined as “legally bound” and “under obligation”. The respondent must have a duty to issue work decisions to employers and be under an obligation to do so. Such an obligation may be regarded as a liability in terms of s 482. The liability to issue such decisions must vest in the Corporation at 1 July 1999. I appreciate Ms Mechen's approach that one would first think of “liabilities” as covering debts, bills, staff salaries and the like. 
[32]
The Interpretation Act 1999 preserves ss 65 and 67 of the 1992 Act in respect of work injury claims accepted prior to 1 July 1999, to enable the Corporation to fulfil its obligations. The respondent therefore has authority to issue work injury decisions to employers post-1 July 1999. Section 18 of the Interpretation Act 1999 provides that, notwithstanding repeal, an enactment will continue, and be in force, to enable the completion of a thing that relates to an existing duty, as long as there is no substituted enactment dealing with the completion of that matter or thing. 
[33]
As the 1998 Act does not specifically deal with the issue of work injury decisions in respect of claims determined prior to 1 July 1999, it cannot be said that there is a substituted enactment adapted to their completion. As s 18 of the Interpretation Act is in essence the same as s 20(g) of the Act's Interpretation Act 1924, the factors taken into account by Thomas J in Ewart v England [1993] 3 NZLR 489 remain relevant so that:- 
There is nothing in the context of the 1998 Act that indicates that s 18 of the Interpretation Act does not apply to enable the issue of work injury decisions to employers for pre-1 July 1999 injuries; 
There is no provision in that 1998 Act which deals with the issue of work injury decisions after 1 July 1999 in respect of pre-1 July 1999 injuries; 
To find that the Interpretation Act 1999 does not apply would result in a gap between the two enactments; 
There is nothing in the 1998 Act to indicate that it was intended to supplant the operation of the Acts Interpretation Act 1999. 
[34]
In my view, the effect of s 18 of the Interpretation Act 1999 is that ss 65 and 67 of the 1992 Act continue to be in force to allow the respondent to fulfil its duty to issue a work injury decision to an employer after 1 July 1999. 
[35]
The current issue before me is whether the claimant suffered a personal injury to his shoulder while at work on 4 September 1995. This is a question of fact. The evidence shows that the claimant suffered an injury to his shoulder when he fell over at work. This is supported by the following:- 
(a)
Accident report completed on the same day; 
(b)
The claimant's evidence; 
(c)
The M46 claim form which identifies the injury as being a shoulder sprain and being due to the September fall; 
(d)
The subsequent medical evidence also confirms that this is plausible and explains why the claimant may have delayed seeking medical attention. 
[36]
The appellant has raised in its submissions whether the claimant was entitled to cover and entitlement from 1996 onwards. This is not relevant to this appeal. The appellant is only entitled to review the matter which is determined in the respondent's decision of 5 November 1999. This is whether the claimant suffered a work injury. Whether the costs of the injury are attributable to the appellant is a separate issue. 
[37]
The appellant has not been prejudiced by the delay in advising it of the claim for the work injury. The appellant was informed of the incident on the date it occurred. The appellant had an established procedure for employees to lodge details of work injuries, and this procedure was followed at that time. The appellant was therefore able to properly investigate the incident at that time, if it wished to do so. 
[38]
The respondent was only made aware of the injury in February 1996 when the M46 claim form was completed. This was some five months after the accident. There would have been no prejudice to the appellant from the respondent's actions if the appellant had been immediately informed of the claim. The question would simply be whether the evidence supported the claim. This remains the question; and the evidence provided by the claimant, the appellant itself, and the medical practitioners is sufficient to determine this in the claimant's favour. Had it been informed at the time, the appellant would have had to rely on the evidence which remains available today. 
[39]
Because the claim was delayed for five months the medical evidence can only be retrospective in nature. As there were no witnesses to the accident, the question for me to determine is whether the claimant is a credible witness and is his recollection supported by the evidence on file. This is a question, which frequently comes before the Court, and I have no hesitation in determining credibility issues. 
[40]
Delays in issuing work injury decisions are not unusual. The respondent is only concerned to fully investigate a work injury when costs over and above medical fees are incurred on a claim. It would be inappropriate to require the respondent to do other than this. Clearly, a decision will only affect the employer if entitlements are paid. If this Court is satisfied that the evidence supports the occurrence of a work injury, there is no prejudice to the appellant. If the Court is not so satisfied, then the claimant is not entitled to cover for a work injury. 
[41]
I am conscious that the submissions for the appellant aim at the factual issue whether the claimant's injuries occurred at work and submit that there is a lack of evidence about that. 
[42]
Ms Mechen referred to the requirement of s 65(4) of the 1992 Act that, on being advised of a work injury claim, the respondent refer a copy of that claim to the employer and request a Work Injury Report; and that is to be forwarded in a timely manner to the employer so that the employer can investigate the alleged injury as close to the time the claim was made to avoid any prejudice. Inter alia, Ms Mechen referred to there being an incident report on 4 September 1995 but that the incident was not witnessed by any other work colleague, the foreman had a vague recollection of the claim. She submitted that the recording of the incident was inadequate, and a review of medical evidence showed some inconsistencies and suggested the possibility of some relevant degeneration. 
[43]
Ms Mechen referred to the claimant seeking no entitlements regarding his alleged shoulder injury until after his elbow injury resolved itself on 7 January 1997. Then, the claimant sought weekly compensation which the respondent retrospectively backdated in terms of incapacity to 27 March 1996, which was 15 days after the claimant resigned from his employment with the appellant. 
[44]
Ms Mechen referred to there having been no treatment sought regarding the alleged shoulder injury until 1997 and there being no contemporaneous medical examination to determine if there was a shoulder sprain at the time of the incident in September 1997. She referred to the claimant having had the car crash the day before he raised his shoulder injury with Dr Halthrop, and yet not then requesting treatment. She referred to Dr Penny raising pain syndrome and degeneration issues but there being no clear diagnosis, nor that any incapacity was a direct result of the work injury. 
[45]
Ms Mechen submitted that, because the appellant employer was severely prejudiced in any investigation, I cannot conclude from the evidence that the injury suffered was a shoulder injury, nor that any injury has led to the incapacity of the claimant. 
[46]
The effect of Mr Cadenhead's submissions is that there was an accident on the date in question which caused ongoing physical injuries to Mr Pope's shoulder and probably to other parts of his body. He submitted that there is no evidence available to sustain any argument that the accident did not actually happen. 
[47]
The evidence was far more detailed than I have covered but, as already indicated, I accept Mr Pope's evidence as truthful and credible and I find that he suffered the injuries at the times and in the manner he has outlined. 
[48]
There were detailed submissions from Ms Mechen to the effect that the respondent did not have the statutory jurisdiction pursuant to s 422 of the Accident Insurance Act 1998 to issue the decision to the appellant on 5 November 1999. While I am most appreciative of Ms Mechen's clear submissions on that theme, I prefer the reasoning of Miss Ahern on that aspect. I find that the respondent did have jurisdiction after 1 July 1999 to attribute costs to the appellant and did have statutory authority to issue its decision of 5 November 1999. 
[49]
In all the circumstances, I do not think that the delay in notifying the appellant of the work injury claim put the respondent in breach of its obligations under s 65 of the 1992 Act, nor that the appellant was prejudiced in any way. 
[50]
As already indicated, in terms of my acceptance of the evidence of Mr Pope, I am satisfied that on the balance of probabilities the injury occurred at work and resulted in the injury and incapacity as outlined by Mr Pope. 
[51]
There is no evidence to refute the claimant's recollection of the injury. Whether this injury continued to cause the claimant's problems in 1996 or 1997, or whether he was incapacitated due to this injury is irrelevant for the purpose of this appeal. Therefore, the claimant's ongoing condition need not be considered at present. 
[52]
The respondent retained the jurisdiction to issue work injury decisions after 1 July 1999. While the delay in notifying the appellant of the work injury claim is unfortunate, this does not necessarily result in prejudice to the appellant. In addition, the question of prejudice is not a matter that is relevant in this appeal which is restricted to the factual issue of whether a work injury has occurred. There is sufficient evidence to establish that it has and that the cover decision was correct. 
[53]
Essentially, I consider that I am in a better position regarding facts and credibility than the Corporation or the Review Officer could have been because I have heard much more extensive evidence and full evidence and cross-examination of Mr Pope. I do not see anything sinister in the aspect that Mr Pope seems to have sat at the Review Hearing and not corrected inadequacies in evidence, nor provided a full account of his accident and consequential matters. I certainly agree with Ms Mechen that it is unsatisfactory for the appellant that Mr Pope did not complete a Work Injury Report, but that is understandable in all the circumstances. I also agree with Ms Mechen that, generally, there needs to be something more than self-diagnosis for the Court or the Corporation to accept the existence of personal injury. I agree it is relevant that Mr Pope did not seek medical treatment for his shoulder and arm until after the car accident, but I must look at the overall situation objectively as it has now been unfolded to me. 
[54]
I certainly accept that an employer must have the chance to investigate an alleged accident as near as possible to the time of the accident, but I do not think that the employer has been prejudiced in this case. I agree with Ms Mechen that an employer cannot investigate something they do not know about and it is important that there be sound evidence as to whether an injury has been established as a work injury or not. 
[55]
Accordingly this appeal is hereby dismissed, but I reserve leave to apply on the basis that, as requested by counsel, this is an interim decision, and the s 44 aspect can be addressed further, and any other consequential matters or matters which I have not covered. I shall direct my Registrar to arrange a Directions Hearing by phone conference within the next month or so to formulate a timetable to proceed. In the meantime, I reserve the question of costs. 

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