Maurice William Marketing Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 243 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN MAURICE WILLIAM MARKETING LTD DCA 336/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of November 1998 APPEARANCES: Mr M O'Reilly Director of the appellant Ms S Scott counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the claimant, Irene Margaret Horne, suffered a gradual process injury, being left lateral epicondylitis, arising out of and in the course of her employment with the appellant. 2 BACKGROUND In October 1993 the claimant, Irene Margaret Horne then aged 33, commenced employment as a machinist with Chicane Clothing, a trading division of the appellant company. Her duties consisted of the cutting and machining of cloth for the making of garments for the motor racing industry. On 8 February 1994 the appellant consulted her GP, Dr Esterman, complaining of extreme pain in her left elbow and forearm, the pain being such that she was unable to continue working. A claim for cover was lodged at the time she consulted her GP and there was an initial certificate indicating her unfitness for work for three weeks and recommending a course of physiotherapy. The claim for cover was treated as a gradual process claim under section 7 of the Act and the usual Employer and Medical Practitioner Questionnaires were sent out. The questionnaire from her GP indicated that it was his opinion that the sewing of heavy clothes was the specific work task which caused the condition to develop. The Employer Questionnaire was returned questioning, without giving detail, how the injury could have occurred in that particular work place. The claim was referred to the Corporation's Area Medical Officer who considered that the claim was reasonable and therefore cover was accepted. Weekly compensation was granted to the claimant in respect of this injury but the Corporation's file discloses that the employer was never notified of the acceptance of the claim and it seems that it was not until the employer received a Claim's History Notification for the year ended 31 March 1995 that it realised that it was being held accountable for the costs associated with the claimant's claim. Mr O'Reilly, on behalf of the 3 appellant, questioned the Experienced Rating Assessment which had been made by the Corporation in relation to the claimant's claim and it was only then that it was realised that the appellant had never been notified of acceptance of the claim and the Corporation duly, but belatedly, did so notify the appellant by decision letter dated 27 June 1996. It was as a consequence of that decision letter that the appellant sought a review . The review hearing took place on 26 August 1996 at which Mr O'Reilly attended. At the hearing, he contended that the claimant had only worked for his company for about 10 weeks and he considered it unlikely that a repetitive strain injury could have occurred during this period. He stated that no other employees had ever suffered any such injury. He did however, acknowledge that during the time of her employment she had complained of an elbow pain and it is noted that this fact is also disclosed in the Employer Questionnaire. It was further stated that the claimant worked on very few motor sport suits rather, most of her work was on shirts and other small garments. It was stated that none of her work was repetitive. The claimant did not attend this review hearing but details of what had been stated at it were referred to her and she responded and stated as follows: "I had not worked as a machinist full time for 10 years before working at Chicane and had not worked as a machinist at all for 2 years. I never had problems with my left elbow before working at Chicane... I had no previous or existing disability prior to working for Chicane. I had never experienced pain in my left elbow. I did make it known that I was extremely in pain in my left elbow. But no light duties made a difference. The damage to the elbow deteriorated with time. I felt the work I did was heavy on my elbow. I feel the size of the human makes no comparison to an injury... On the third week I went to see my own doctor. Dr Drake was filling in for my normal Dr Esterman... when I started sewing for Chicane a very small... company I had no previous history of RSI. This was my first full time employment for a 4 number of years as I felt my daughter's health and security was first and foremost, as she has only me... I don't know these colleagues who I supposedly voiced my concern to, about existing for 6 months without income, but yes I was acutely aware of my financial responsibilities." After considering the medical evidence and considering the factors required to satisfy section 7 of the Act, the Review Officer ruled that the decision of the Corporation's grant cover was correct. The appellant filed Notice of Appeal against that decision and obtained leave to introduce statements from a Sewing Industry Productivity Specialist, the Manager of Chicane Clothing, and the principal of another clothing company with 27 years experience in the clothing industry. The tenor of that evidence was that these persons, all experienced in the clothing industry, had no knowledge of anyone suffering from OOS as a result of carrying out the type of work which the claimant was said to have carried out. Prior to the hearing of this appeal it was noted that the medical evidence was sketchy and it was directed that further evidence be obtained. In that regard further evidence was sought from the appellant's GP, Dr Esterman, and in addition, opinion evidence was sought from Dr Black, an Occupational Medicine Specialist. Dr Esterman was asked the specific question, was Mrs Horne's injury caused by tasks she performed at Chicane Clothing? His answer to that was as follows: "The information I have obtained gives no other explanation for Ms Horne's pain. She has had no previous history of these types of problems according to her statements made to myself and in her claimant questionnaire. It is clear that she was complaining of pain whilst working for the firm before discontinuing work and this is acknowledged by the employer. She had worked for only a short time, for some 10 weeks, on an "on and off" period at "Chicano Clothing, and although they can still occur, this makes epicondylitis and OOS type problems less likely. Certainly other factors as well as length of time relate to the development of OOS, ie. - in the factory, tasks undertaken and technique using those tasks again, using relatively light pieces of handling in a sporadic fashion rather than in a repetitive fashion makes OOS less likely, however sewing either a light or heavy garment still requires the same types of movements. Lastly, the risk of suffering lateral epicondylitis by a person performing sewing tasks in the movement in Chicane Clothing is significantly greater than someone not performing sewing tasks in that environment - it is the sewing tasks and movements associated with them - that I feel have caused the later epicondylitis." Dr Black conducted a detailed interview with the claimant and his report states: "Testing for lateral epicondylitis by resisted dorsiflexion of the left arm produced localised pain around the attachment and extending down to the belly of the muscle. There is a minor palpable fibrosis around the attachment. By examination, I am convinced that there are ongoing symptoms and evidence of the condition which she has now accepted as being a minor chronic problem. I could not see any evidence of deformity from the old fracture. However, this could not be definitively ruled out without an x-ray. It is nevertheless unlikely given the age at which the fracture occurred as complete healing would normally be expected in such a "greenstick" fracture. Lateral epycondylitis is a condition affecting the common extensor bundle, which is a bundle of tissue through which the extensor muscles of the forearm (ie. those structures affecting dorsiflexion ie. lifting up of the hand and rotation (anti-clockwise) of the forearm). The condition frequently becomes chronic and can be difficult to resolve... In an occupational setting, lateral epycondylitis is frequently seen in workers who have to undertake repetitive gripping, particularly associated with extension or rotation of the hand. It is 6 seen in electricians using screwdrivers, sometimes carpenters (although medial epicondylitis is more common from hammering) and in keyboard operators. I have not seen the condition in the clothing industry before.... Nevertheless, the history given by Irene Horne is convincing, it is consistent with the documentation in terms of her workload, the diagnosis by her general practitioner and by the physiotherapist. The use of the shears would in itself be a plausible cause of her condition and in my opinion this could occur from relatively limited work. In contrast, whilst I accept that the employer genuinely believes that this injury did not happen in his work place, there is poor documentation of the event by the employer, no follow-up of the absence and incorrect recall of matters such as the hours worked and the nature of termination. In my view, too much emphasis is being placed on a conviction that the injury did not occur despite a clear diagnosis by health professionals at the time. The matter of the previous fracture of the left wrist may be relevant, however, if this is the case, it only makes the work related injury more likely. It is my opinion that the decision of the Corporation to initially accept this claim, and that of the Review Officer to uphold it is entirely supportable by the facts, both in terms of plausibility by occupational exposure, a consistent history supported by documentation, and current examination findings of the patient. I would therefore be prepared to support the position taken by the Corporation in the District Court if the matter comes to appeal." In his submissions to this Court, Mr O'Reilly submitted that Dr Black's opinion and findings should be disregarded as he had been asked by the Corporation to investigate the matter and he therefore questioned whether Dr Black could provide an unbiased opinion. He considered that many statements made by Dr Black were either irrelevant or inaccurate and he questioned his expertise in this particular area. Essentially Mr O'Reilly contended that this Court should not accept that the claimant could have suffered the particular injury complained of from the type of work in the 7 particular environment that she was carrying out within the time frame that she had been so working. Ms Scott, for the respondent, submitted that the medical evidence and the findings made by the Review Officer were such that the requirements of section 7(1)(a)(b) and (c) were satisfied and that this Court had heard no evidence which would alter the finding previously made by the Review Officer and that on the balance of probabilities the claimant's claim was validly accepted. DECISION For a claimant to be successful for what is known as a gradual process injury she must satisfy the three tests set forth in section 7(1)(a)(b) and (c). In large measure those tests call for expert medical opinion and evidence and this Court has had evidence from both Dr Esterman and Dr Black which supports the contention that the claimant did suffer left lateral epicondylitis as a result of the particular employment tasks that she was required to undertake during the time of her employment with the appellant. It is to be noted that prior to commencing this employment the claimant had not worked for some ten years whilst she had her family and there was no evidence that there was anything in her non-work environment which would have caused or contributed to her condition. As Dr Esterman stated "The information I have obtained gives no other explanation for her pain". Whilst the initial onus is on the Corporation to satisfy itself that on the balance of probabilities a claimant has made out a claim for cover under any particular provision of the Act that is relevant, once that evidential onus has been satisfied then it is for the appellant to establish that the decision so made was nevertheless wrong. An appellant must do so again by establishing that proposition on the balance of probabilities. The medical evidence, and in particular the subsequent evidence given for the purposes of this appeal, leaves this Court in no doubt that the claimant has satisfied the tests required of her by section 7 of the Act. By contrast, whilst this Court has received some industry evidence on the nature of the tasks carried out by the claimant and of the effect those tasks may have on the clothing industry in general, the Court has had no expert medical evidence which would support the appellant's submission and I find that this is a fatal deficiency to that other evidence being given sufficient weight to tip the scales in favour of the appellant. It was mentioned during the course of argument that the appellant may still be being experienced rated in respect of the claimant's original gradual process claim even though there appears to be evidence that since that claim was dealt with, she has suffered further unrelated injury which may be the substantial cause of any continuing incapacity. If that is the case, then that is a matter for separate inquiry by the Corporation in the first instance, upon being requested so to do by the appellant, should it continue to be so experienced rated when it contends it ought not to be. However, this appeal is not concerned with the ongoing liability of the appellant to the respondent for the claimant's costs. This appeal is limited to determining whether the Corporation's decision to accept the claim back in 1994 was correct. Having regard to the evidence, I find that the decision so made was correct and therefore this appeal must be dismissed. DATED at WELLINGTON this 27th day of November 1998. M J Beattie District Court Judge Horne.doc(gm)