Air New Zealand Limited (Air Nelson Limited) v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 330 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN AIR NEW ZEALAND LIMITED (AIR NELSON LIMITED) of Auckland Appellant (Appeal No. DCA 300/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act First Respondent AND JULIE ALISON SINKINSON Second Respondent HEARING at CHRISTCHURCH on the 21st day of October 1999 APPEARANCES/COUNSEL J Greene for appellant B A Corkill for first respondent S Mechen for second respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the second respondent is entitled to cover under the Act pursuant to section 7. 2 The second respondent, who was employed as a Flight Attendant with the appellant, lodged a claim for cover with the first respondent in respect of a back strain which occurred to her upper back in October 1998. She submitted that the claim arose out of and in the course of her employment as a Cabin Attendant with Air Nelson Limited. The first respondent obtained a report from Dr J K Howard, a Specialist Occupational Physician who reported on 27 November 1998 and gave as his opinion: "In my opinion, the diagnosis is probably no more than mild muscle strain involving the left trapezius muscle. There is no suggestion of any more significant problem and certainly no suggestion of significant involvement of the dorsal spine or the shoulder. It is extremely difficult to say what has produced the problem, as any number of factors are likely to have been involved. I would consider that the nature of her work is certainly consistent with inducing muscle strain, although it has to be noted that she is right handed rather than left handed and I would therefore expect most of the stress to be on her right side rather than the left. However, lifting trays, pulling up the airplane door and similar activities could certainly induce minor strain of the trapezius muscle. However, it also has to be recognised that a wide range of other factors could be involved, including her domestic duties. It has to be said in favour of Mrs Sinkinson's claim that the rapid onset after her retum to her duties as a flight attendant would support an occupational origin of her problem. By that time she was used to dealing with her baby, with the attendant lifting and other activities associated with a young child, and her history gives no suggestion that she had any problems until some four weeks until after returning to her work duties. I think therefore that while lifting a child will no doubt have played a part in maintaining the stress upon the trapezius muscles, I am doubtful in the light of the specific history that she gives whether this was a primary cause." The first respondent then requested further information from Dr Howard and in a reply of 11 December 1998 he confirmed his diagnosis that the second respondent "has been experiencing a mild strain of her trapezius muscle all along." He then went on to say: 'I would be more inclined to consider that lifting the baby has aggravated rather than caused her present problems. My understanding was that she did not experience any pain or discomfort until after she had returned to work which rather suggests a work related cause - although I would agree that the time of onset does not of itself exclude other causes. ... I think that a flight attendant who is carrying trays and coffee pots and similar articles is likely to be more at risk of developing a muscle strain than a flight attendant not carrying out those tasks. ... one wonders whether home factors are tending to prolong the recovery period and there may be some subconscious or unadmitted desire to stay 3 at home with the baby rather than be at work which is maintaining her level of subjective symptoms." On 23 December 1998 the first respondent notified the second respondent that her claim for cover was declined because Dr Howard's opinion was that both employment and non-employment roles involving lifting could be contributing factors in the problems she experienced. The second respondent applied for a review of that decision. At the review hearing it was submitted on behalf of the second respondent that she had been unable to work since September 1998 and that the report of Dr Howard clearly supported her claim. It was submitted that the most arduous task undertaken by the second respondent on a Saab Airplane was the closing of the aircraft door as there are no hydraulics to provide assistance nor could help be provided by ground staff. It was submitted that as a result the second respondent had to shift a deadweight to close the door. After that the left arm was used to stow the stairs to the right. It was also submitted that the second respondent closed that aircraft door by holding onto the aircraft with the right hand while reaching out with the left hand to grab the door and pull it towards the plane. It was submitted that the stowing of cabin luggage also involved heavy lifting because many passengers did not heed the weight or size limits on cabin baggage. The first respondent then requested a report from Dr P Karsas, an Occupational Therapist, to whom it supplied copies of Dr Howard's reports. Dr Karsas examined the second respondent on 25 March 1999 and submitted a report to the first respondent. In that report he listed the factors which he took into account in giving his opinion, which were: "Injury(ies) Identity of body part * Left shoulder History The client tells me that she began to suffer excruciating pain around the upper back, left shoulder blade and upper limb while working as a air hostess for Air NZ shortly after returning from maternity leave. No single episode of significant injury could be remembered. Her duties as a air hostess consisted of: * handing out drinks - small cups +/- 50 ml a cup. * light lunches * help with overhead luggage. Maximum should not exceed 5 kg. * tea and coffee * hand out magazines Maximum amount of passengers 33. Sometimes only a few passengers. Only the longer flights required catering. The client tells me that she had worked as a air hostess for three years prior to 4 going on maternity leave. She did suffer some neck and back pain during that time but this settled with osteopathic treatment. She returned to work when her baby was 10 months old. She had experienced no shoulder pain while looking after her baby. Current Symptoms: Constant pain left shoulder blade, varies in intensity. Worse with activity. May lead to headaches. Day time fatigue. Sleep rhythm is no longer disturbed. No longer on sleep restoration medication. Current Limitations: Sitting -comfortable Lifting - restricted. Bending - not restricted Driving - not restricted. Experiences arm pain later in the day. Manages all household activities. Husband helps when he is home." He then gave as his diagnosis and opinion: 'DIAGNOSIS and DISCUSSION- Or Howard has suggested a diagnosis of mild strain of the left Trapezius muscle. A similar condition that is seen in tennis players who suffer pain around the shoulder blade is referred to as Rhomboid fibrositis. However one would expect that this type of soft tissue condition would settle within days. I have suggested to the client that the intense burning pain that she experienced may have been a viral inflammation of the nerves that supply the shoulder girdle muscles. The condition would have settled by now but with a certain amount of muscle weakness. This would explain the clunking with scapulo thoracic movement. However there was no winging of the scapula. Either way I have indicated to the client that I could not find sufficient clinical evidence to support her claim that an injury had occurred while at work and that such an injury was causing an ongoing incapacity based on: no single event of significant injury they type of work the client was performing would be regarded as being on the light to medium level. The client's child care activities would require heavier lifting than what was performed as an air hostess. No discomfort was experienced while performing child care activities. no significant problems before going on maternity leave. * no clinically verifiable medical condition found while examining the shoulder and dorsal spine. shoulder injuries often occur with jobs that require excessive or heavy overhead activities and in certain sports i.e. racquet sports, throwing, pitching, bowling. Excessive overhead activity was not part of the client's job description. 5 I suggest that the condition should be regarded as a non accident related medical condition and managed in the same was as one would manage the Delayed Recovery Pain Syndrome i.e. cognitive behavioural therapy, remedial exercises to strengthen the muscles and appropriate medication. During the interview the client appeared to be suffering from mood changes and I suggest that urgent attention by the client's GP is advised. I hope that the above treatments could be offered by the public system as the client is concerned about the cost." The Review Officer concluded that the second respondent had suffered a personal injury as defined by section 8 of the Act. He also concluded that on the basis of Or Howard's opinion the criteria of section 7(1)(a) were satisfied. He decided to accept Dr Howard's finding as against that of Dr Karsas particularly because Dr Karsas made no reference to the closing of the aircraft door. The Review Officer accepted Dr Howard's report that he did not consider the lifting of the baby was significant and that therefore the criteria of section 7(1)(b) were satisfied. He also accepted Dr Howard's opinion that persons carrying out that type of occupation were more likely to suffer the problem than persons not carrying out that type of occupation so that the criteria of section 7(1)(c) were satisfied. The application for review was therefore successful. It is against that decision which the appellant now appeals. Mr Greene submitted that the first respondent's primary decision was correct and should upheld. Mr Greene referred to the decision of Panckhurst J in JBDB v ARCIC (Dunedin Registry M121/98) for which the High Court noted that the essential focus of section 7 is upon causation. Panckhurst J then went on to say "no doubt the intention of Parliament was to ensure that personal injury, said to be caused by employment-related gradual process, disease or infection, would only be compensated in clear cases." He submitted that it was necessary to satisfy all the criteria specified in section 7(1). Mr Greene submitted that Dr Howard had not identified a particular property or characteristic which caused or contributed to the injury nor had he addressed the particular criteria in section 7(1)(b). He submitted further that Dr Howard's opinion did not satisfy the section 7(1)(c) test of significantly greater risk. Mr Corkill submitted that the issue came down to an evaluation of the medical reports and that if the Court preferred Dr Howard's opinion then it was more likely that section 7 cover would be upheld. On the other hand if the Court prefers Dr Karsas' opinion then it would be less likely to conclude there will be cover under section 7(1). Ms Mechen was granted leave to adduce a report from Dr J A Ryder, a Specialist in Occupational Medicine. His diagnosis of the appellant's problem was "chronic pain syndrome, secondary to shoulder girdle strain (though there is currently minimal evidence of any localised musculoskeletal injury). He also noted "considering the mode and mechanism of injury the ongoing symptoms appear to be the direct result of personal injury by accident. There is no history of preceding psychiatric symptoms (although her condition is probably markedly affected by the anxiety about her condition), nor is there evidence of old injury, or musculoskeletal or neurological 6 disorder of the upper limbs." Dr Ryder gave no opinion as to the cause of the appellant's problems. Ms Mechen submitted that Dr Ryder's report reinforced the findings of Dr Howard. Ms Mechen submitted that the Court should be guided by the reports of Dr Howard which supported the findings that all the criteria under section 7(1) were satisfied. I consider that I should follow Dr Howard's opinion because he clearly considered all the work requirements and, in particular, the raising and lowering of the aircraft doors, all of which involved the use of the arms in lowering and lifting a deadweight. This would be a particularly stressful action so far as second respondent's shoulders and arms were concerned. In addition, Dr Howard considered that lifting luggage into the racks and carrying trays and coffee pots would all tend to cause muscle strain which would aggravate the arm and shoulder problems. I therefore consider that the second respondent has satisfied the criteria required under section 7(1)(a). The only evidence in relation to section 7(1)(c) is provided by Dr Howard who considers that while the lifting of the baby may have played a part in maintaining the stress it was an aggravating feature rather than a cause and was only a minor matter. I therefore consider that the second respondent has satisfied the criteria of section 7(1)(b). Again, the only evidence in relation to section 7(1)(c) is that provided by Dr Howard who is a Specialist Occupational Physician and I consider that I must accept his findings on that ground and hold that the criteria of section 7(1)(c) are satisfied. The appeal will be dismissed. The appellant is to pay the sum of $850 towards the costs of the second respondent together with airfare incurred by Ms Mechen in travelling to Christchurch for the hearing of the appeal. DATED at WELLINGTON this 16th day of November 1999 A W Middleton District Court Judge dca300-99.doc (nr)