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Accident Compensation Cases

Murray v Accident Compensation Corporation (DC, 24/05/04)

Judgment Text

Judge P F Barber
On 4 April 2002 the first respondent declined the appellant cover for an injury to his right elbow which the appellant alleges was caused by his employment at the second respondent. A claim for such cover was lodged in January 2002. The appellant's Application for Review was dismissed by Reviewer, P Barker, in a written decision of 9 September 2002, and the appellant appeals to this Court. 
The second respondent (through its solicitor, Mr Cleary) has raised the preliminary issue that the second respondent was not the employer of the appellant at material times. 
Mr Cleary refers to the appellant seeking cover for ulnar neuropathy to his elbow occasioned by repetitive lifting and throwing lamb/sheep pelts from a processing drum (the snow machine) onto a processing table. Mr Cleary refers to medical evidence from Dr Wigley and Mr Welsh citing only work tasks involving pelts as being directly causative of that ulnar neuropathy and to the appellant having been employed by Drake International Ltd when carrying out such work tasks. 
There is an affidavit from Ms P M Postlewaight, a registered health nurse, as the health and safety manager at the second respondent detailing why she believes that the employer at the time the relevant injury was suffered by the appellant was Drake International Ltd. Mr Cleary submits that her evidence suggests that the arguably causative work task was only ever carried out by the appellant while employed by Drake International Ltd. He notes that, pursuant to s 45 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the Act”), the date of injury for a gradual process injury is deemed to be the earlier of the date of treatment for that injury or the date of first incapacity. He submits that the evidence indicates that the appellant was incapacitated either after carrying out the pelting task or from the date he first saw a doctor for his elbow injury; and if Drake International Ltd was the appropriate employer, then the first respondent's decision of 4 April 2002 declining cover is invalid. 
Mr Cleary submits that, at the very least, Drake International Ltd should be invited to join the appeal as an interested party. 
For the appellant Ms Watson made brief submissions on the preliminary matter of, as she put it, who is responsible for the relevant injury to the appellant and she relied on the Health and Safety in Employment Act 1992 to submit that Taylor Preston Ltd was the appellant's employer at the time he had his injury; and it was required to take all practical steps to ensure the appellant's safety in relation to all hazards in any place of work controlled by it at which employees are required to work for it; and it failed to ensure the appellant's safety. 
There is no dispute that the appellant lodged a claim for cover in January 2002 for a gradual process injury to his right elbow which he attributed to his employment at Taylor Preston Ltd; and that the specific task which he identified as being causative of his injury was pulling and untangling pelts. However Taylor Preston Ltd has raised the preliminary issue whether the appellant sustained his injury during employment with it and, indeed, contends that the injury was sustained while the appellant was employed by Drake International Ltd. 
I agree with Ms Rice that, when considering the responsible employer for the purposes of the Act, regard must be had to that Act rather than to the more general employment law. 
The claim was lodged in January 2002 so that it is s 45(1) of the Accident Insurance Act 1998 which is relevant and it provides: 
“45. Date on which insured suffers personal injury caused by a work-related gradual process, disease, or infection - 
The date on which the insured suffers personal injury caused by a work-related gradual process, disease, or infection is the earlier of the following dates: 
The date on which the insured first receives treatment from a registered medical practitioner for that personal injury as that personal injury; 
The date on which the personal injury first results in the insured's incapacity,- 
but this subsection is subject to subsection (2). ”
The date of injury for a gradual process injury is therefore the earlier of the date on which a person first receives treatment for the diagnosed personal injury, or the date on which the personal injury first prevents the claimant from working. 
There is untested evidence that the appellant worked for the second respondent from November 1996 to April 1997, for Drake International Ltd from 1 November 1999 to 14 September 2000 (Drake International Ltd had a labour supply contract with Taylor Preston Ltd), and again with Taylor Preston Ltd from 14 December 2000 onwards. 
The claim for cover was lodged in January 2002 at which time the appellant was employed by Taylor Preston Ltd. From the evidence presently available, it seems that the appellant's problem was not diagnosed before that time. 
It is also submitted for the first respondent that there is insufficient evidence that the appellant was incapacitated as a result of ulnar neuropathy prior to 14 December 2000 when he recommenced employment as an employee of Taylor Preston Ltd. I agree that is the present position. 
Accordingly, the first respondent submits that Taylor Preston Ltd is the appellant's employer for the purpose of considering whether his claim for gradual process injury should be accepted. Apparently, the issue of who was the appellant's correct employer was raised at the Review hearing but not dealt with, presumably, because the application was dismissed. 
I take the view that, at present, there is insufficient evidence available to this Court to decide who was the appellant's employer when he sustained his material injury. Accordingly, I hereby order that Drake International Ltd be added as an Interested Party to the appeal and that matters proceed with expedition to a hearing on that basis. I shall arrange for the Registrar to set up a conference phone discussion as a Directions Hearing for appropriate procedures on this matter. 

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