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Accident Compensation Cases

Sykes v Accident Compensation Corporation (DC, 19/08/11)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the respondent's decision of 24 May 2006, whereby it declined to grant weekly compensation to the appellant for his covered injury of industrial bronchial asthma, on the grounds that it could not be established that the appellant may have become incapacitated as a consequence of that medical condition. 
That decision was confirmed in a review decision dated 7 December 2006 in which the Reviewer determined that the appellant had not satisfied the evidential test of establishing that he was an earner before the commencement of incapacity, or indeed, of being an earner at the time of the deemed date of the personal injury. 
The Court heard extensive submissions from counsel for the parties at the hearing in May 2010, and it also heard evidence from the appellant himself. 
At that hearing it was submitted by Ms Armstrong that prima facie this Court's decision in the appeal of Vandy was relevant, and it was the case that the Court was aware that that decision was being taken on appeal to the High Court on a question of law which was in issue. For this reason the Court advised that it would be awaiting that High Court decision before considering a decision. 
Consequent upon the High Court overturning the Vandy decision, the Court sought further submissions from counsel in the light of it, and such final submissions were received in July 2011. 
This is a case where there has been a substantial passage of time from the dates when relevant events were required to be established, and indeed it is the case that the appellant only lodged his claim for cover for industrial asthma as a work-related gradual process injury in June 2003, with the assertion that that industrial asthma had been contracted by the appellant during the course of his employment as a pot line operator at the Tiwai Point Aluminium Smelter between 1974 and 1976. 
Cover for the gradual process injury of work-related bronchial asthma arising from the appellant's employment at the Tiwai Point Aluminium Smelter was declined by the respondent's primary decision of 9 March 2004, but that decision was quashed at review with the Reviewer granting cover to the appellant in a decision dated 28 October 2004. 
It was following the granting of cover that the appellant sought weekly compensation for alleged incapacity claimed to have arisen in September 1990, and which incapacity is alleged to have continued until September 2004 when the appellant again resumed full-time employment. 
The matters requiring determination by the Court in this appeal, involve the following key matters which, from the appellant's perspective, he would be required to establish on the balance of probabilities in order to satisfy the various statutory requirements that arise in this case in respect of his claim for weekly compensation. 
Those key matters which must be established are as follows: 
The date on which the appellant is to be regarded as suffering the personal injury of bronchial asthma as being caused by a work-related gradual process. 
In terms of section 37(1) of the Act, it requires the Court to identify the date on which the appellant first received treatment from a medical practitioner for that bronchial asthma as that personal injury. 
The second issue required to be determined, which must be looked at from the date which is identified in (i) above, is a determination, pursuant to section 103 of the Act, as to whether the appellant was an earner as of the deemed date of that personal injury. 
The third determination is the date upon which the appellant became incapacitated consequent upon that injury and whether, as of that date, the appellant was an earner. 
Those two matters being the necessary requirements pursuant to Clause 32 of Schedule 1, for the granting of weekly compensation. 
The fourth matter is a determination of the period of any such capacity. 
Dealing firstly with the deemed date of suffering the personal injury arising from the appellant's employment at the Tiwai Point Aluminium Smelter, I take it to be conceded by Counsel for the Appellant that there is simply no evidence of the appellant receiving treatment for his condition prior to 1980, although the appellant did state in evidence that he had been provided with an inhaler by a GP in 1976. 
To put this in perspective, it is Counsel for the Appellant's submission that the deemed date of injury is in or about July 1980, whereas it is Counsel for the Respondent's assertion that the first proper reference of treatment for that injury is June 1983. 
The evidence asserted by Counsel for the Appellant as establishing a date of 1980, whilst the appellant was a resident in Christchurch, is as follows: 
Clinical notes dated 8 May 1984 ‘has a wheeze (bronchitis — had asthma in Christchurch’). 
Statement in appellant's affidavit dated 24 September 2009: 
‘I remember that whilst I was working in Christchurch my asthma would force me to visit the hospital — two — three times a year to be treated with a nebuliser. I also used my inhaler regularly. ’”
Clinical Assessment by Dr E D Parke, dated 28 March 1996, for WINZ in which he states, inter alia
‘He developed asthma in 1980 but was not bad and could work having several jobs in different parts of South Island. Asthma bad since 1989. ’”
Undated document giving details of appellant's history. This document notes that the appellant was then 25 years of age and with him having been born in 1956, would make the document one which was created in 1981. Under the heading ‘Health’ it stated: 
‘Suffers from hypertension, obesity, migraine and asthma. ’”
Letter from Alliance Group Limited confirming that the appellant commenced work with it in Invercargill on 16 March 1981, thereby corroborating the appellant's evidence that he left Christchurch at the beginning of 1981. ”
Counsel for the Respondent refers to statements made by doctors in 1992 and 1993, when identifying the appellant's medical history, and who refer to the fact that the appellant was diagnosed with asthma some eight years earlier, which from the date that those statements were made would place the commencement date as being 1983 or 1984. Counsel also refers to the Otago Hospital Medical Records dated 16 June 1983, which identifies the appellant as being an asthmatic. Counsel submits that this is the first documented evidence of the identification of the appellant as being asthmatic. 
The next matter that required evidence was the issue of whether the appellant did in fact have earner status at the date of injury. It was Counsel for the Appellant's submission that the appellant was employed as a taxi-driver by Blue Star Taxis in Christchurch, employment which he commenced in 1979 and which he continued for the remainder of his residency in Christchurch - that is to the beginning of 1981. 
Counsel refers to a Christchurch Hospital record dated 1 August 1979, which referred to the appellant's occupation as being a driver. It should be identified that this Hospital investigation was to look at the appellant's ongoing headaches. 
Counsel further refers to the evidence given by both the appellant and his then partner, of the fact of him being employed by Blue Star Taxis between 1979 and 1981. An email from the NZ Transport Agency confirms that in 1981 the appellant was the holder, inter alia, of a taxi licence, a licence for passenger service buses and a heavy trade vehicle licence. That licence had an expiry date of 23 May 1981. 
Counsel also refers to a note from NZ Armed Forces which confirmed that the appellant was a driver in its Territorial Force between March 1975 and May 1980. 
Counsel for the Respondent has referred to the fact that no evidence has been produced of any income earned by the appellant from employment in 1980, although it does seem to be the case that because of the lapse of time any IRD records of same have been destroyed. Counsel further submitted that engagement in the Territorials did not amount to evidence of employment. 
The next date which requires consideration is the earner status of the appellant as at the date of his claimed incapacity. It is the assertion of Counsel for the Appellant that the appellant's incapacity commenced in September 1990, and that prior to that date the appellant had been employed as a deck hand by United Fisheries Limited, and there is evidence from IRD that the appellant did earn income from employment in United Fisheries Limited for the year-ending 31 March 1991, those gross earnings being $6,061.00. 
There is evidence from the skipper of the fishing vessel on which the appellant worked for the month of July, August and September 1990. 
It was the appellant's evidence that his work on the fishing vessel caused his asthma to get worse and he therefore ceased this employment in September 1990 and then went onto an Invalid's Benefit with WINZ. The records from WINZ identify the appellant commencing on an Invalid's Benefit on 30 September 1991, and for it continuing through until January 2005. That same document identifies that from November 1989 through to September 1991, the appellant was on a Sickness Benefit with WINZ. 
In a report dated 18 February 1992 the Otago Health Board provided an asthma assessment which identified that the appellant was unable to work because of his condition. 
Counsel for the Respondent refers to the fact that there is no evidence of any change in the appellant's physical condition in September 1990, and that there is a gap of some eighteen months between the fishing trawler employment and his admission to hospital due to asthma in 1992. 
The final requirement which requires determination is whether or not the appellant has had a continuing incapacity after 1990, if it be accepted that he became so incapacitated at that time. In support of that assertion Counsel for the Appellant refers to a number of medical documents identifying the continuation of the appellant's unstable bronchial asthma, and it is the case that in many of those reports the appellant's poor physical condition is identified and of the fact that he was grossly overweight. It was considered that his general condition was not helping to treat his asthma. 
I do not propose to set out all the documents which refer to the appellant's ongoing asthmatic condition. A clinical assessment carried out in April 2000 by Dr Hardy is typical, and it identifies the fact of his asthma and of the prognosis being “not a lot of hope for improvement in the short term”. That report identified that the appellant had a severely restricted work capacity. 
It is the case that the appellant went back to work in early 2005 as a truck driver, but in May 2005 and again in August 2005 he was involved in two accidents in which he sustained chest injuries and for which he subsequently received cover and seems to have been thereafter in receipt of weekly compensation consequent upon that incapacity from that employment. 
The specialist medical opinion relating to ongoing incapacity submitted on behalf of the appellant is from Dr Peter Martin, Respiratory Physician, and the contrary opinion, on behalf of the respondent, is from Dr Monigatti, Occupational Physician and Principal of the Respondent's Workwise Department. 
Dr Martin commented on the appellant's work on the fishing trawler and of the fact of him having to give up that work, and in that regard he stated as follows: 
“I am not at all surprised that Mr Sykes was unable to manage work on a fishing trawler. My understanding is that this is heavy physical work often conducted under extremes of temperature, either hot, a blow deck position, or cold when on the deck. Temperature change is known to exacerbate asthma and certainly aerosols of salt water can do this. It seems likely therefore that the work tasks and environment of the fishing trawler exacerbated his asthma. ”
In a subsequent report dated 16 January 2009, Dr Martin stated as follows: 
“On the basis of the reports available covering the period 1991-2005, it is very likely that the asthma was troublesome and incapacitating for much of this time. As such it is very unlikely he would have been able to return to his work as a knife hand because of the physical demands of this work. ”
Dr Monigatti, after noting the history following the appellant ceasing work as a fishing-hand on the trawler in September 1990, referred to the various medical reports taken during the appellant's hospital periods and in particular, the forced expiratory volume (FEV) which was assessed at those various times. He advised that an FEV of between 70% and 100% was classified as a mild obstruction, between 60% and 70% is moderate, and from 50% to 60% is moderately severe. Dr Monigatti noted that all FEV assessments were either moderate or mild, with the last two taken in January 1994 and February 1997 respectively, being moderate. 
It was on the basis of those FEV figures that Dr Monigatti advised that the appellant's asthma had not changed very much, and with an FEV above 60% it was not to the extent of altogether precluding work as a knife-hand or a fishing hand. He stated that it was possible that the appellant would have been breathless on occasions during work, but most asthmatics can and do live relatively normal lives. It was his opinion that between 1990 and 2004 the appellant would not have been continuously incapacitated from working in the freezing works or on a trawler. 
Dr Monigatti's report was referred to Dr Martin for comment. In relation to the FEV figures, he simply noted that this was simply a classification at a particular point in time and he then stated as follows: 
“However, in asthma the characteristic physiological event is wide fluctuations in the degree of obstruction especially as a response to known trigger factors, such as temperature change, irritating inhaled aerosols such as salt water, and allergic factors. As such the recorded values, presumably taken under quiet, relaxed circumstances in a hospital clinic, do not accurately reflect the degree of symptomatology which the person is experiencing, especially as this relates to the trigger factors. ”
Dr Martin then concluded by stating as follows: 
“Dr Monigatti's comments do not alter my opinion that it is more likely than not that Mr Sykes remained incapacitated, within the definition provided by you (i.e. unable to work as a knife hand), from 1991 until his return to full time employment in 2005. ”
The appellant's claim for weekly compensation in this case gives rise to a somewhat unusual legal situation, when the legal requirements for an entitlement are set against the facts which are asserted in support of that entitlement for this appellant. 
The whole scenario in this present case is against a background of significant delay on the part of the appellant in seeking any cover or entitlements, and this has certainly added to the difficulty which this case causes. 
It is the case that the appellant did not commence any claim with the respondent until June 2003 when he lodged a claim for a work-related gradual process injury of bronchial asthma, and it was not until the review decision of 28 October 2004 that cover was granted to the appellant for the work-related injury of bronchial asthma, found to have been suffered by the appellant during his comparatively short period of employment with the Tiwai Point Aluminium Smelter between 1974 and 1976. 
In the case of this appellant, of course, the granting of cover for that injury does not translate into incapacity arising at the time that that employment was ceased, as it is accepted by Counsel for the Appellant that incapacity did not occur at that time and could not be identified as being the reason for the cessation of that particular employment. 
Accordingly, in terms of section 103(2) the Court is required to determine whether the appellant was engaged in employment at the time he suffered the personal injury. In the case of this appellant it requires a consideration of the provisions of section 37(1)(a) of the Act to identify the date on which the appellant is to be regarded as suffering that personal injury of bronchial asthma and which, in accordance with section 37(1)(a), is deemed to be the date on which the appellant first received treatment from a medical practitioner for that injury, as that injury. 
Thus in the present case the fact that the appellant suffered the onset of bronchial asthma during the course of his employment at the Tiwai Point Aluminium Smelter is not relevant; the issue is whether he was engaged in employment at the time he first received treatment for his asthma, as that condition. 
The assertion on behalf of the appellant is that he first received treatment for his asthma in 1980 and he was at that time employed as a taxi-driver by Blue Star Taxis in Christchurch. 
The evidence in support of this contention is far from being conclusive, and the situation is not helped by the fact that IRD records for that period were not available by the time this whole issue arose. 
The evidence presented on behalf of the appellant is firstly his own statements on oath, and that of his then partner, who both confirmed that he was engaged in the work of a taxi-driver from 1979 until 1981. That situation is corroborated to some extent by independent evidence identifying that the appellant did have a taxi-driver's licence during that period. 
In this jurisdiction the Court endeavours to be generous and unniggardly in its approach to such issues, and it is the case that the respondent cannot present any evidence which would assert a contrary position. Rather, counsel simply submits that the evidence that is available is not sufficient. 
Having regard to the factual situation as given in evidence and corroborated to some extent by the fact of the taxi-driver's licence at the relevant time, I am prepared to find, on the balance of probabilities, that the appellant was so employed during that period. 
However, that is only half the evidential requirements which are necessary, as it is the case that subsequent to the appellant leaving Christchurch in early 1981, he was no longer employed, and therefore in terms of section 37 of the Act he is required to establish that the date on which he first received treatment for his bronchial asthma was during the time of his employment as a taxi-driver in Christchurch. 
I find it to be the case that no clear medical evidence has been produced which identifies that the appellant sought and obtained treatment for his condition in 1980/81. It is Counsel for the Appellant's submission that because subsequent medical statements refer to the fact of the appellant having asthma, being clinical notes in 1983 and 1984 that identify that the appellant was acknowledged at that point as suffering from asthma, that it must have been diagnosed and treated at an earlier date. Counsel submits that in those circumstances it would be reasonable to identify a date in mid-1980 as being the time when the appellant first received treatment for his asthma as asthma. 
The only evidence submitted in support of the 1980 date is the evidence of the appellant in his affidavit, when he stated: “I remember that, whilst I was working in Christchurch my asthma would force me to visit the hospital 2-3 times per year to be treated with a nebuliser. I also used my inhaler regularly.” There are no medical records identifying that situation as occurring. 
The only other documentary evidence is a non-medical document with some details of the appellant's history and which is a document that can be identified as having been created in 1981 when the appellant was 25 years of age, and which states that the appellant suffers from hypertension, obesity, migraine and asthma. That document does not indicate where that information came from, and the Court was only ever presented with the first page of this document, which ceases in mid-sentence. 
Counsel for the Respondent refers to the various medical reports from the early 1990's which all refer to the appellant's asthma as having been diagnosed some eight years ago, which in each case puts that date as being 1983-1984. 
Having regard to the paucity of evidence on the issue of first date of treatment, as required by section 37 of the Act, I have come to the conclusion that such evidence does not reach the necessary threshold for establishing that the appellant did obtain medical treatment for his condition, as the condition of bronchial asthma, during the period that he was employed as a taxi-driver in Christchurch. It is the case that such medical evidence as there is all points to a later date, being a date when it is accepted that the appellant was not an earner. 
It is therefore the situation, as I find it, that the appellant cannot establish that he was an earner at the time he is deemed to have suffered the personal injury of bronchial asthma. In terms of section 100(1)(a), section 103(2) and clause 32(1), as recently interpreted in the High Court decision of Vandy, not only must a person be an earner at the date of incapacity, but also an earner at the date of suffering the personal injury in order to be eligible for weekly compensation. 
In the event that the finding I have made should be subsequently determined as being incorrect, I now proceed to consider whether the other requirements of clause 32 can be met, namely that the appellant suffered incapacity from his covered injury from September 1990 onwards, immediately prior to which he was an earner in the employ of United Fisheries Limited. 
The factual situation is that the appellant did cease working for United Fisheries Limited in September 1990, and thereafter resumed being on a WINZ Benefit, and he remained on that Benefit until 2004, even though during those intervening years he did engage in short term part-time employment. 
As a matter of law, the test of the appellant's incapacity is whether he was able to continue or resume the employment he was engaged in at the time that incapacity commenced, that is, his employment as a deck-hand with United Fisheries Limited. 
The medical evidence which has been presented certainly identifies that the appellant was suffering significantly from his bronchial asthma which was considered to be somewhat unstable, partly because of the less than satisfactory way in which the appellant addressed his condition, and there are several comments that the appellant had not been treating his asthma properly. 
The comments and opinion of Dr Martin, I find, are significant, and where he identifies that it was not likely that the appellant would be able to return to the work and environment of the fishing trawler. The fact that the appellant may be capable of doing other types of employment I find is not relevant, and it is only if the appellant's medical condition subsequently made it probable that he could resume his pre-incapacity employment during the period from 1990 to 2004 that he would be taken as no longer remaining incapacitated within the legal meaning of that status. 
The evidence in support of the appellant's continuing incapacity is principally that of Dr Martin and I find that his assessment of the appellant's medical history during that period can be accepted. 
I have not overlooked the opinion of Dr Monigatti, but as was noted by Dr Martin, Dr Monigatti was only looking at the situation from the occasions when the appellant underwent those FEV tests, which Dr Martin considered do not necessarily accurately reflect the degree of symptomatology which the appellant might be experiencing in the outside world. I therefore consider that the opinion provided by Dr Monigatti, based on those FEV assessments, does not detract from the opinion provided by Dr Martin, that the appellant would have been incapacitated throughout the period concerned. 
The final result in this appeal, therefore, is that I must determine that the appellant does not satisfy all the statutory requirements that are necessary for him to have a weekly compensation entitlement. Even though I find he can satisfy the requirements of clause 32, that he was an earner immediately before his incapacity commenced, he cannot satisfy the statutory requirement that he was an earner at the time he suffered his personal injury. 
The decision of the High Court in Vandy (CIV-2010-485-001331) makes it quite clear that a prerequisite, in accordance with section 103(2), is the requirement of a claimant being an earner at the time he suffered the personal injury. As I have determined that the appellant cannot establish that state of affairs to the necessary degree of probability, he has no entitlement to weekly compensation and therefore this appeal is dismissed. 

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