Air New Zealand Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 217 /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 AIR NEW ZEALAND LTD DCA 153/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of September 1998 APPEARANCES: Mr J Greene advocate for appellant Mr A H Johnson counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to grant cover to the appellant's employee Lee Gray, in relation to a gradual process injury pursuant to section 7 of the Act, was correct. 2 As a preliminary matter it should be recorded that Mr Gray has been served with all relevant documents relating to this appeal and has been specifically advised by the Registrar that the nature of this appeal is one that could place his entitlement to cover under the Act in jeopardy. He was notified of the time and date of the hearing of this appeal. He has informed the registrar that he does not wish to be heard or to take part in this appeal process. BACKGROUND Lee Gray then aged 19, commenced employment with Air New Zealand in its Catering Division at Wellington Airport in December 1995. His employment tasks required him to be standing on a concrete floor putting food on trays on to a conveyor belt, and included in his tasks were frequent bending and lifting of items for placement on the conveyor belt. Mr Gray advised that by the second week of his employment he began noticing pain in his knees, specially when bending down and this pain in his knees gradually got worse resulting in him consulting a doctor in March 1996. He was diagnosed as having bilateral patellafemoral knee strain. A claim for cover was made and it was treated by the Corporation as a claim under section 7 of the Act, being a gradual process injury rather than one which occurred as a result of a specific event. Mr Gray's GP, Dr Law, initially referred him to Dr Ruth Highet, Sports Medicine Physician. Dr Highet confirmed Dr Law's diagnosis and observed that Mr Gray had "very flat feet and that on a biomechanical examination he does have quite severe FF valgus with very plantar flexed Ist rays which will not help his overall lower limb balance". Dr Highet referred him for physio but noted that she may have to look at orthotics in the long term. 3 In a report to the Corporation Dr Highet noted that "It is the standing on his feet all day working for Air New Zealand Catering which has been involved in the development of the condition in Lee's case. He is standing around on the hard concrete floor all day". The Corporation's Branch Medical Advisor, Dr Brown, confirmed that the employment task which had a property or characteristic causing the condition was prolonged standing on concrete and noted that there may be the underlying fact of Mr Gray having flat feet. The Corporation advised the employer that Mr Gray's claim for cover was accepted under section 7 of the Act. The appellant did not accept that decision, indicating that at no time had Mr Gray complained to his employer about his injury or discomfort, that in his employment application he had listed various sporting pursuits as his hobby and that it believed that the activities of his employment could not be the cause of his injury. In the light of that application for review the Corporation elected to obtain a second opinion from another specialist on Mr Gray's injury. Mr Gray had previously been referred to Mr C Hoffman, Orthopaedic Surgeon, who had prescribed orthotics for his flat feet and Mr Hoffman reported to the Corporation on 10 February 1997. Mr Hoffman's report was as follows: "His job involved standing on concrete floors and lifting boxes of food and beverages etc. He had been an active sportsman during his time at school playing squash and cricket during the relevant seasons but on starting work with Air New Zealand he stopped playing active team sports and was not involved in any physical exercise at all. He found the work at Air New Zealand quite physically exhausting. 4 His initial treatment on 30 May was to arrange an ultrasound of his patellar tendons and this confirms that he had an area of cystic degeneration in the patellar tendon at its insertion to the distal patellar pole. There was very localised tenderness around this area and we had some discussions whether it should be debrided. We elected to try some orthoses and to use a knee immobiliser if his symptoms warranted it. He was given a certificate for alternative duties which avoided prolonged standing or lifting." ... The diagnosis is therefore patellar tendonitis, right sided with ultrasound evidence of degenerative cystic formation. The prognosis for this is good in the long term. Recovery can be accelerated by debridement of the affected area of the tendon. Modification of activity is the mainstay of treatment. It is difficult to be absolutely dogmatic as to the cause of his degenerative tendonitis. It is clear that he played sport up to the time that he left school without any impairment at all and that the onset of his symptoms came with his change of activity. He had not been required to stand for prolonged periods of time or to be involved in heavy lifting on an ongoing basis prior to his employment with Air New Zealand Catering. Of note is the fact that he did stop his regular physical activities at the time of his employment because he did not have the time to fit in playing in regular team sport. There may have been some loss of physical fitness which may have contributed to his symptomology although this is purely speculative. He does have some underlying alteration of foot mechanics with quite flat feet and this was the rational for giving him orthoses to improve his foot function and prevent tibial rotation which can be a precipitant of internal knee pain. Having read through the information provided by Air New Zealand Catering I have some sympathy for their stance. Clearly he does not have an 5 "occupational overuse syndrome", he has a diagnosis of patellar tendonitis. This is usually associated with a vigorous sporting activities. Clearly he had ceased all these sporting activities prior to him starting with Air New Zealand." The Corporation'. Branch Medical Advisor, Dr Brown, noted that Mr Hoffman's report supported the cause of Mr Gray's patellar tendonitis as being due to prolonged standing on concrete floors and that there were no other causative factors, in particular no other sporting activities. It was noted that orthotics had been recommended to relieve some stress on his knees and that it was the fact of his flat feet which was likely to be have been a contributing factor. After hearing evidence both from Mr Gray and from his employer at the review hearing, the Review Officer's decision was that the evidence satisfied him on the balance of probabilities that Mr Gray's symptoms manifested during his employment with Air New Zealand Catering and were caused by that employment. He found that his claim had met the requirements of section 7 of the Act. The appellant lodged an appeal against that decision and obtained leave to adduce further evidence for the purposes of this appeal, that evidence being the evidence of Dr Alchin, Specialist Occupational Physician. Dr Alchin did not examine the appellant but did have copies of all relevant medical reports and gradual process questionnaires from the file. After reviewing those various reports he gave his opinion as follows: "In summary, Mr Gray commenced work aged 18 at Air New Zealand Catering in December 1995, working between 5-8.5 hours a day, standing on a concrete floor and lifting. He had the development of bilateral knee pain, worse on the right, within a short time, which would come on soon after he 6 started work, and was more painful when lifting, and walking up and down stairs. He was found to have patellar tendonitis with degenerative cystic changes. In answer to your specific questions: 1. Sport I note the time sequence of stopping sport, followed by commencing work at Air new Zealand, followed by the commencement of knee pain within several weeks, raising the question in management's mind that the tendonitis may have been caused by the preceding sporting activities; this impression is perhaps lent support by the comments in the other reports that this condition is more commonly associated with vigorous sporting activities. I also note that Mr Hoffman, in his very balanced report, states the difficulty to be absolute certain of the cause. I doubt that it is possible to totally exclude the possibility that the preceding sporting activity played a role. But, on the balance of probabilities, the stated account of symptoms developing for the first time since he stopped sports, and after he commenced work at Air New Zealand, in my mind it makes it less likely that the condition commenced due to sporting activities. Note however that this opinion is based entirely on the accuracy of Mr Gray's recall of when his symptoms first began. 2. Section 7(1) (a) I would have thought that simply standing on a concrete floor for eight hours, even if unaccustomed, would not cause patellar tendonitis, which would normally be due to vigorous and active knee movements, as would be involved in heavy work or sporting activity. Therefore, if work was to blame, it would be the heavy lifting which would be the relevant work factor. Whether there was sufficient heavy lifting to cause patellar tendonitis seems to my mind to be dubious. I was employed by Air New Zealand in Christchurch for 7.5 years from 1990, and I am familiar with work in the catering unit there. People on the production lines, packaging food on a conveyor belt, did 7 some but not a lot of lifting. It seems difficult to attribute patellar tendonitis to that activity. (b) By Mr Gray's account he stopped sport before he commenced work at Air New Zealand; thus the only possible relevant factors would be: the question of these previous sporting activities causing an: asymptomatic condition, which became symptomatic at Air New Zealand. I have discussed this above; it is possible but not likely, as tendonitis would normally be painful at the time. The fact feet and altered biomechanics which this results in, which has been noted by both Dr Highet and Mr Hoffman. This is likely to have been factor in the onset of the condition, according to both of them, and I agree. (c) In my years at Air New Zealand, with over 100 people employed in the catering unit in Christchurch, I came across no such cases of patellar tendonitis from people doing Mr Gray's work. Nor am I aware of any published data which would support this increased risk at such work. As Dr Highet and Mr Hoffman have noted, this condition is normally associated with vigorous sporting activity rather than work standing on a concrete floor, even with some walking and lifting. After over 11 years full-time employment in occupational medicine, I have not seen such a case arising from this sort of work. In Summary There are indeed some strong arguments for accepting Mr Gray's condition as being caused by his work; these have been well stated in Mr Hoffman's report. These arguments are the chronology of his sporting and work activities in relation to the onset of his symptoms. But there are also some legitimate doubts regarding cover, which emerge once the criteria of section 7(1) are applied. It seems to me that there are difficulties with (a) and (c) in accepting this claim, and possibly also (b) (flat feet)." 8 The Relevant Statutory Provision in section 7 of the Act which provides: "(1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if - ( a) In respect of a period that ended on or after the first day of April 1997, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and ( 6 ) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c ) The risk of suffering that personal injury is significantly greater for persons performing that employment tasks in that environment than for persons who do not perform that task in that environment. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the persons employment." SUBMISSIONS Mr Greene, advocate for the appellant, submitted that Dr Alchin's opinion should be preferred to those of Dr Highet and Mr Hoffman as he gave his opinion by expressly looking at the matter from the perspective of the requirements of section 7 of the Act. He submitted that if the inquiry is merely whether it is likely that the work caused the condition, the answer 9 might be in the affirmative. However when the criteria of section 7(1) are applied the claim should not have been accepted. Mr Greene further submitted that the onus of proof which rested on the respondent in the first instance to establish the necessary evidence for acceptance of the claim, had not been satisfied. Mr Johnson, counsel for the respondent, acknowledged that the initial onus had been on the respondent to satisfy the standard required of section 7 but that the evidence had so satisfied that standard. Counsel further submitted that this was a case where the eggshell skull principle applied and cited the statement from Stringer J in Mccarthy v Union Steamship Co of NZ Ltd where the Judge stated: "It is clear that if a man's physical condition is such as to render him peculiarly susceptible to grave consequences from an accident which in a normally healthy person would have no such consequences that would not affect the rights to compensation for the more serious result." In this case it was Mr Gray's flat feet which predisposed him to an injury of this type in the particular working conditions that he was working under. Counsel submitted that Dr Alchin's report dealing with section 7(1)(a) was merely speculative and that it does not raise sufficient doubt against the other medical evidence which had established a gradual process injury arising out of his employment. Insofar as section 7(1)(b) is concerned, counsel for the respondent submitted that there was no evidence to show that the properties and characteristics of Mr Gray's employment existed in his non-employment activities or environment. The evidence being that he had ceased his sporting activities when he commenced his employment. 10 Insofar as section 7(1)(c) was concerned, counsel submitted that the opinion of Dr Brown, the Corporation's Branch Medical Advisor, was that the risk of suffering that injury was significantly greater for people performing this work activity than for those who did not. He further submitted that when considering the issue raised by (c) it required consideration of whether there was the risk of suffering patellar tendonitis by a person with flat feet and altered biomechanics as being significantly greater for a person performing that employment task in that environment than for persons who do not perform that task in that environment. He submitted that that was the correct way in which that test should be looked at in the case of Mr Gray and that on that basis the answer based on the medical evidence is affirmative. Counsel submitted that on the balance of probabilities the case for entitlement to cover under section 7 had been made out. DECISION A claimant for cover under section 7 of the Act is required to satisfy the threefold test provided by that section. The evidence required to satisfy those tests is essentially medical but at the end of the day the issue is whether as a matter of law those facts satisfy the tests. Insofar as section 7(1)(a) is concerned, the initial advice received from Mr Gray's GP, confirmed by Dr Highet and the Corporation's Branch Medical Advisor, was that Mr Gray suffered from bilateral patellar femoral knee strain that had been caused by prolonged standing on concrete and the bending and lifting that his employment task included. Thus, in terms of section 7(1)(a) the employment task being performed by Mr Gray had the property or characteristics which required standing on a concrete floor for prolonged 11 periods, frequent bending and lifting and it was those properties or characteristics which caused the injury. Mr Hoffman was not asked to give his opinion in the context of section 7 of the Act so his report does not address those particular points directly. Nevertheless, I find that his opinion is that there are no other likely causes of his injury save for the work tasks and environment which he has noted. In addition, Mr Hoffman notes the fact of Mr Gray's flat feet and that he was given orthoses "to improve his foot function and prevent tibial rotation which can be a precipitant of anterior knee pain". I infer from Mr Hoffman's report that the work environment and Mr Grays predisposition to this type of injury were the causes of the patellar tendonitis which he suffered. Having considered Dr Alchin's opinion I am in agreement with counsel for the respondent that his opinion is somewhat speculative. There is the clear fact that the appellant did suffer patellar tendonitis during the time that he was employed by the respondent and was not so engaged in any outside activities which could be said to have been a contributing factor. Dr Alchin simply observes that "it seems difficult to attribute patellar tendonitis to that activity". He does however, accept that if Mr Gray's work involved heavy lifting that would be a relevant factor. I note that he does not address the fact of Mr Gray's flat feet in relation to (a) but for some reason he raises it in relation to (b) and accepts that Mr Gray's flat feet are likely to have been a factor in the onset of the condition. I find that Dr Alchin has misconstrued the legal issue which (b) raises and test for (b) cannot include considerations of any predisposing characteristics which the injured person may have. Such predisposing characteristics have no relevance to a consideration of whether the property or characteristic said to be in the work place is also found to a material extent in the non- employment activities or environment. For that reason therefore, I find that 12 in fact Dr Alchin's opinion supports the contention of the other medical specialists and I find that requirements of section 7(1)(a) have been satisfied. Insofar as section 7(1)(b) is concerned the evidence is that there was no continuation by Mr Gray of his sporting pursuits after he started work and therefore there is no evidence that the property or characteristics which were found to be present in the work environment were to be found to a material extent in his non-employment activities or environment. As I have noted the question of flat feet which was raised by Dr Alchin has no relevance when considering the test in (b). Insofar as (c) is concern, I agree with counsel for the respondent's submission that in this particular case the test must be looked at in the light of the particular individual that Mr Gray is rather than persons in general. He is a person with a particular pre-disposition by reason of his flat feet and therefore the test must be whether such persons performing those employment tasks in that environment are at significantly greater risk of suffering that personal injury than persons in general who do not perform those employment tasks in that environment. The Corporation's Branch Medical Advisor gave as his opinion that it was more probable and accepted that the test under (c) had been satisfied. In contrast Dr Alchin stated that in his experience he had not seen a case of patellar tendonitis arising from this sort of work. Again however, I find that his assessment has been made without taking account of the particular peculiarity of Mr Gray's physical make-up. He has already accepted that Mr Gray's flat feet and altered bio-mechanics were likely to have been a factor in the onset of the condition and I have already found that these factors must be thrown into the "mix" when considering the test in (c). It may be so that without flat feet and altered biomechanics he would not have suffered the 13 injury but that is not the test. For the foregoing reasons, I find that the test for (c) has been satisfied. Whilst the initial onus to establish entitlement rests with the claimant, and in this particular case with the Corporation, for the purposes of this appeal the onus shifts to the appellant who is required to establish on the balance of probabilities that the decision so made was wrong. In the present case I find that the appellant has not discharged that onus which is upon it, and that indeed all factors point to the decision to accept cover for Mr Gray under the provisions of section 7 as being correct. Accordingly this appeal is dismissed. DATED at AUCKLAND this S day of October 1998 M J Beattie District Court Judge Gray.doc(gm)