Accident Rehabilitation and Compensation Insurance Corporation v Campbell

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 356199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ACCIDENT REHABILITATION and COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Appellant (Appeal No. DCA 103/99) AND MARIE ANNE CAMPBELL of Christchurch Respondent HEARING at CHRISTCHURCH on the 19th day of October 1999 APPEARANCES/COUNSEL B A Corkill for appellant C Hutchison, advocate for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the Review Officer was correct in revoking the appellant's decision of 22 October 1998, to the effect that the respondent's ongoing incapacity cannot reasonably be ascribed to a work overuse injury suffered in 1989, there being no causal link between the original condition and the chronic non-specific diffuse musculoskeletal pain disorder. The respondent lodged a claim for cover with the appellant in August 1989 for "overuse syndrome" arising out of and in the course of her employment as a Typist with Associated Wholesalers. The appellant accepted the claim. 2 In a report of 22 September 1988 Mr P Fogerty, a Consultant Surgeon, diagnosed chronic pain of uncertain origins. Dr J A Kirk, a Rheumatologist, on 22 February 1989 diagnosed regional pain syndrome, being a disease and not an injury. Later in December 1989 Dr Kirk said that he could not understand how her work had led to the particular pain syndrome. In a report of 21 August 1992, Dr W E D Turner, an Occupational Physician, stated that "Mrs Campbell traces the onset of her occupational overuse syndrome back to the beginning of 1979 at which time she was employed with Associated Wholesalers as a dictaphone typist, having first stated with this firm on 21/8/78." She had told Or Turner that she worked "under appalling ergonomic conditions with non- adjustable equipment." At that time Dr Turner's opinion was: "It is clear from this patients long history of chronic pain secondary to repetitive keying under conditions of untoward ergonomic circumstances and then subsequently repetitive forceful movements involved in the occupation of nurse aiding through the requirement of manually lifting patients; together with the duress of multiple medical consultations, confusion as to diagnosis, treatment and rehabilitation, that this patient has developed a chronic occupational overuse pain syndrome and is now seriously disabled from this condition. Her physical findings are such that I would have no hesitation but to award her a 40% disability rating under Section 78, using either a quasi schedule or American Medical Association tables. I cannot accept Dr Kirks contention that there is no tissue damage in this patient, the history, examination findings and obvious inability to cope with even the activities of daily living serving to demonstrate a profound and serious disability requiring ongoing support from the Corporation." A further report from Dr Turner on 15 May 1996 in which he noted "clearly this patient has developed a chronic pain syndrome and manifests a significant fibromyalgia condition with 18 out of 18 Smythe tender points." On 24 April 1998 Dr J R Monigatti, an Occupational Physician, provided a report in which he accepted Dr Turner's diagnosis of chronic, non-specific, diffuse musculoskeletal pain disorder termed fibromyalgia. He said: 'The concept of fibromyalgia being a form of occupational overuse injury emanates from a school of thought that gained popularity in the 1980s, despite the lack of any scientific validation. Notwithstanding the significant amount of intensive research that has since been done in an attempt to verity it, no conclusive evidence for a causative link has emerged. Often, poor ergonomics, faulty work methods, physical deconditioning or sheer hard work may render an asymptomatic condition symptomatic. However, provoking symptoms does not equate to causing injury. The persistent lack of evidence for work causation has not stopped vigorous and ongoing debate on the issue. In an attempt to achieve consensus, the ACC recently convened a symposium on the work- relatedness of fibromyalgia in which opinions were canvassed from specialists representing the disciplines of occupational medicine, rheumatology, neurology, rehabilitation medicine and psychology. The 3 newly-released report by the Chairman, Associate Professor Gorman, is appended. IT will be noted that the majority opinion did not support a causative association between trauma and fibromyalgia, and this is consistent with the position adopted by the ACC." Dr Monigatti then completed his report by stating: "In retrospect, it is probable that Mrs Campbell was manifesting the early symptoms of fibromyalgia and not the condition for which she was granted cover. The passage of time has revealed the condition to be something else, but that should not bind the ACC to perpetuating Mrs Campbell's entitlement if she is not injured. The reality of her pain and disability is not disputed, but as there is no evidence that she is currently suffering from personal injury to satisfy Section 4 and therefore Sections 8 and 7 of the 1992 ARCI Act, I consider her ineligible for cover. I would ask Dr Turner to review her in this regard." In a report of 19 June 1998, Dr Turner found that the respondent had a chronic pain syndrome which came within the diagnosis of fibromyalgia. He then said: "In my view her current condition has arisen as a result of a sequence or cascade of events all of which provide links in a change of causation. Clearly the initial link that precipitated her hand and wrist pain condition arose out of a work environment where ergonomics were unsatisfactory and there were properties and characteristics that gave biological plausibility to the onset of her symptoms. Furthermore this occurred at a time when she had been exposed to sexual abuse over a 5 year period from 1974 to 1979. Subsequently the condition was medically mismanaged not through any particular fault of her treatment practitioners but through the fact that there was a dearth of research available to guide health practitioners in appropriate management practises. In my view this provides the second link in the change of causation. Thirdly she suffered three episodes of cervical whiplash trauma in 1979, 1983 and again in 1990 which in conjunction with evidence on examination of motion restriction and cervical irritability indicates that cervical dysfunction is a significant factor. Fourthly the development of a diffuse chronic pain syndrome with fibromyalgia and minor causalgia with its attendant modulatory factors of stress, poor sleep, fatigue, any form of physical activity provides another link in this chain of causation. It should be noted that prior to the initial onset of her symptoms in 1979 she advised she had never previously had headaches, fatigue, sleep disturbance or circulatory disturbance. There was however the question of mild von Willebrand's disease with subcutaneous bruising in response to minor trauma such as lifting, typing and contusions which goes back to her student days. The final link in the chain of causation is her Hepatitis C which is a condition with symptoms indistinguishable from those of the chronic pain syndrome such as chronic fatigue depression, gastrointestinal disturbance and circulatory disturbance of the Raynauds type. 4 It is therefore in my view impossible to be definitive about a causal link between any one diagnosis and her current condition, clearly one can only say that it has arisen from a cascade of causality." As a result of those reports, the appellant notified the respondent on 22 October 1998 that she no longer met the requirements of section 37A of the Act with the result that her weekly compensation would cease from 18 November 1998. The respondent applied for a review of that decision. The Review Officer accepted that the case was complex but did not accept that Dr Turner's reports supported the view that the respondent's then incapacity could not be ascribed to the overuse injury suffered in 1989. The Review Officer considered that on the balance of probabilities there was a link between her present problem and her overuse injury in 1989 which was at that time confirmed by Dr Turner. The Review Officer therefore revoked the appellant's primary decision. It is against that decision which the appellant now appeals. In support of the appeal the appellant has submitted a further report from Dr Turner dated 16 April 1999. In that report Dr Turner stated: " As I stated in my report dated 19/06/98 I can not exclude that her chronic pain syndrome [complex or otherwise] has arisen as a result of injury at the spinal cord level. The presence of damage to nerve cells however does not necessarily imply any specific origin or aetiology. Furthermore given what we know of gradual process trauma arising from secretarial work it is most unlikely that any injury if it does exist actually arose from keyboarding. There is in fact very little evidence in the literature to support a link between trauma of work and the chronic pain syndrome. In the context of keyboard work there is no supportive data at all. Furthermore chronic pain syndrome does not generally arise from tissue damage and regular activity [including work activity] is beneficial in managing the pain complaint. Given what we know of fibromyalgia it is most unlikely that her condition arose as a consequence of her secretarial work task. Current knowledge points towards the tender points on which fibromyalgia is diagnosed as being present as a pre-existing state causally based on factors unrelated to the work environment. Their presence is thought to arise not from anthropometrics or ergonomics but from personality type, personal risk factors and individual responses to stress." Mr Corkill submitted: 1. That on the evidence, fibromyalgia is a condition of uncertain and multifactorial origins. 2. That many Specialists in the field do not support a causative association between trauma and fibromyalgia. 5 3. That the overuse injury may have been a credible consequence of the respondent's work in 1989 but the symptoms now displayed could not be as a result of that employment. 4. That the conclusions reached by Dr Monigatti are supported by the majority of Specialists who attended the Consensus Meeting on fibromyalgia on 25 February 1998, the results of which were summarised in a report prepared by the Chairman, Professor Gorman. 5. That on the basis of Dr Turner's report, he concedes it is "most unlikely" that there is any injury and if there is, that it arose from keyboarding and that it is "most unlikely" that her condition arose as a consequence of her secretarial work tasks. 6. That Dr Turner identifies emotional distress as being relevant to the development of chronic pain syndrome. Mr Hutchison submitted: 1. That the Review Officer came to the correct conclusion on the medical reports. 2. That the appellant has endeavoured to link a change of policy within its office on fibromyalgia to demonstrate that the original decision was not correct. 3. That it is interesting to compare Dr Turner's statement in August 1992 when he diagnosed the respondent as having "chronic pain secondary to repetitive keying under conditions of untoward ergonomic circumstances" with his opinion in April 1999 when he said that "given what we know of gradual process trauma arising from secretarial work it is most unlikely that any injury if it does exist actually arose from keyboarding." That one or other of those diagnoses must be incorrect 4. Mr Hutchison referred to Dr Turner's opinion in which he again stated that he "cannot exclude that her chronic pain syndrome [complex or otherwise] has arisen as a result of injury at the spinal cord level" and that this has to be compared with his statement in 1992 in response to Dr Kirk's opinion when he said "cannot accept Dr Kirk's contention that there is no tissue damage in this patient." A number of appeals dealing with this same issue have come before the Court recently. The principal appeal which I heard is that of Teen (335/99) in which I analysed all the available material which has developed on this issue. In that decision I expressed my concern at the evidence given by Dr Alchin who attended the Consensus Meeting on fibromyalgia that there was widespread concern that too many claims for cover were granted for "RS/" or "OOS" as it was formerly called. Consequently the Specialists attending that Meeting were endeavouring to formulate a policy which would preclude claims for cover for regional pain syndrome or fibromyalgia from receiving cover. The result was that the consensus was that regional pain syndrome or fibromyalgia arose from non-physical stress rather than physical injury. 6 It appears that the appellant has been keen to accept that policy for its own purposes with the result that it has re-examined cases, such as this respondent's, where cover has been granted for "RS/" or "OOS" and then, on re-examination by one of the Specialists who is aware of the findings of the Consensus Meeting, hold that the claimant is now suffering from fibromyalgia which is merely a pain disorder of multifactorial origin basically arising from non-physical stress. That appears to me to be exactly the position in this appeal. The appellant was perfectly happy to accept Dr Turner's original diagnosis in 1992 that the respondent's symptoms were the result of chronic occupational overuse syndrome brought about by repetitive key work in unsatisfactory ergonomic conditions. As I explained in Teen and in a number of subsequent decisions, I consider that the pain syndrome suffered by the respondent has followed the stress imposed on her physically by the poor ergonomics and continuous work pattern which she had to endure in the course of her employment. That in some way the physical stress has affected the musculature in her body with the result that her body has reacted by failing to perform in the manner for which it was designed. This has then produced severe pain when she attempts to carry out her normal duties. I consider that by virtue of section 7(4) the respondent has suffered a physical injury as a result of the poor ergonomics in the workplace and the repetitive nature of her work which preceded the onset of pain. That was a physical injury as Dr Turner originally diagnosed and which the appellant accepted for cover. I agree with the Review Officer that on the medical evidence and the on the balance of probabilities the respondent's ongoing condition is the result of the originally diagnosed chronic occupational overuse pain syndrome made by Dr Turner in August 1992. He, at that time, was quite adamant that he could not accept Dr Kirk's contention that there was no tissue damage in this patient. It is only since the Consensus Meeting that he has gone back on that statement. For the reasons I have stated, the appeal is dismissed. The appellant is to pay $1,000 towards the respondent's legal costs. DATED at WELLINGTON this 3 ra day of December 1999 Mevunddeit A W Middleton District Court Judge dca 103-99.doc (nr)