A Southland truck driver has taken on Crown entity the Accident Compensation Corporation and won a court battle to be compensated for work injuries.
Nicola Emtage was employed by Southern Transport Company as a driver operating waste collection trucks.
She said she was collecting green waste on Racecourse Rd, Invercargill, when a bin lifter plate of truck 204 dropped on her right leg on March 11, 2019.
ACC declined her claim.
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Emtage unsuccessfully sought a review of ACC’s decision, so appealed to the courts, with the hearing taking place in Invercargill over three days in March and April this year.
The case pitted Emtage against the ACC and her employer, Southern Transport Company.
Judge Chris McGuire, in a written decision, said the case was about whether an accident causing injury to Emtage occurred, and if so, what the extent of the injury was.
Both the ACC and Southern Transport Company claimed there was no injury by accident, but the judge disagreed.
He found that Emtage suffered the accident at work on March 11, 2019, and nearly two months later, on May 6, when her injured leg “locked” while she was getting dressed, she reported it to her doctor.
After “erratic medical examinations” the injury later proved to be a labral tear with two sites of soft tissue damage on her upper and lower thigh affecting her femoral nerve.
The judge said Southern Transport Company initially had justification to be sceptical of Emtage’s injury claim, given that from their perspective, it was not raised officially until nearly two months later.
Emtage said her boss told her not to worry about putting an injury claim in at the time of the accident, but the company disputed this.
The judge said: “I am satisfied … that at least until 6 May 2019 her accident was overlooked or ignored by her employer, although she reported it on the day that it happened.”
Emtage had given Southern Transport four different dates on which she claimed she was injured at work, but eventually concluded it was March 11.
The judge said when an ignored injury did not heal there was often confusion about when exactly the accident occurred, as was the case with Emtage.
GPS data and “run sheets” confirmed the date of injury was on March 11, 2019, the judge said.
ACCs scepticism was bolstered by the fact that Emtage completed her bin collection circuit in good time on the day of the injury.
“Then of course it was not until some seven weeks later … that the appellant again reported her injury to her employer, to be met ultimately by disbelief,” the judge said.
“However, what is not challenged about that is that on 6 May 2019, the appellant did in fact have to call her ex-husband when the effect of her injury meant that she was unable to dress herself.”
The judge said he was at times astonished how some claimants were able to continue to function in a “normal” fashion for weeks after a quite serious injury accident.
“I find that that occurred here, until 6 May 2019.”
Emtage had every incentive to keep working as she had separated from her husband and needed the income, the judgement said.
Two ultrasounds had shown two injuries high on Emtage’s right thigh and above her knee which the judge said “comprehensively supported” what Emtage said happened – a steel plate fell high on her thigh, and then down her leg towards the knee.
“The ultrasound reports supported by the physiotherapist’s record and the appellant’s consistent description of her accident remain as primary proof of the appellant’s injury by accident.”
Southern Transport Company had insisted the accident could not have been caused as described by Emtage.
But the judge said this argument was laid to rest by other reports where the backplate on truck 204 had prematurely dislodged and fell, and also by a demonstration using truck 204 at the courthouse during the hearing.
“That demonstration by [Emtage] removed all doubt in the court’s mind as to whether such injury by accident was possible. It plainly was,” the judge said.
As such, he found the decision in late 2020 to revoke cover was plainly wrong, so he reversed it.
With cover restored, Emtage was entitled to backdated entitlements, treatment and rehabilitation.
Her entitlements may include assessments of weekly compensation and possibly a lump sum payment for permanent impairment, the judge said.
“These are matters that ACC, including those contracted to ACC, must now work through with the appellant in a way that is not affected or influenced by what has occurred before.”
ACC should have been able to satisfactorily investigate the claim through to an enduring positive conclusion for Emtage, the judge said.
“Instead it revoked cover.”
Emtage was entitled to costs, he added.
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