Air New Zealand v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No 22 5 198 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to s.91 of the Act BETWEEN AIR NEW ZEALAND (DCA 243/97) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent AND BERNADETTE McCAFFERTY Claimant HEARD ON: 30 September 1998 APPEARANCES: Mr J Greene Advocate for Appellant Mr D Tui Counsel for Respondent Ms B McCafferty in person RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Review Officer was correct to find that the claimant was entitled to cover under s 7 of the Act in respect of a gradual process injury arising out of her employment with the appellant. N Background The claimant, Bernadette McCafferty, had been employed by Air New Zealand Ltd in its Cargo Division as a clerk and had been so employed for some eight years. For six years until July 1996 she worked in the Credit Control Section which involved a lot of telephone work and making notes by hand. She said her job was both busy and stressful. In July 1996 her duties changed and she became involved in receiving incoming cheques and inputting information into the computer. In October 1996 Ms McCafferty lodged a claim for cover reciting "uncomfortable chair at work - sitting at computer terminal majority of day". The medical diagnosis was "pain in lower thoracic spine and lumbosacral spine 2 to work - OOS". In a further medical certificate issued on 8 November the diagnosis was stated as being "OOS and stress". When the appellant was notified of her claim its Chief Medical Officer, Dr Black, advised the Corporation that Ms McCafferty's work station furniture complied with the VDU Code of Practice and was ergonomically satisfactory and further, that he could not correlate the pain she was suffering with her work. In consideration of the claim the Corporation arranged for the claimant to be examined by Roger Reynolds, rheumotologist, and his report stated as follows: "History of Complaint: In early 1995 she began to experience neck and low back discomfort after prolonged sitting at work. She tried using a cushion and lumbar roll without much benefit. At time she was able to borrow a chair with a raised back from other staff and found this much more comfortable, but she was not provided with such a chair on a permanent basis. She felt that the symptoms were "brushed aside" by her supervisor. When her role was changed in July, she was given a different workstation, had to use her same chair, this continued when she was changed to a different office in August. One day, two months ago, after one hour at work, her neck and entire body felt particularly sore and stiff. She left work and went to an osteopath with marked improvement. She remained off work for about one week during which her symptoms definitely settled. On returning to work part-time, (four hours per day), she again had discomfort with prolonged sitting, this was again eased when she could borrow a more comfortable chair. Various other chairs were subsequently provided by management for her to try, but none was a comfortable as the particular chair that she had borrowed. Because of continuing symptoms, her GP put her off work two weeks ago. She continues to have neck and low back pain, partly relieved by osteopath treatment, swimming, and acupuncture She had a L) shoulder injury three years ago which was eased by physiotherapy, she has had a trauma to her thumbs which required surgical removal of a neuroma. Her past history was otherwise unremarkable. She is a moderate smoker, she had no other significant symptoms. She swims four or five times per week. Examinaton: She presented as a well nourished woman of muscular build, who moved freely and without apparent stress. General examination was unremarkable. She had normal neck movements with slight tenderness over a mid cervical spine. The shoulder and upper limb joints were normal, with mild tenderness over the trapezius muscle on each side. The thoracolumbar posture and movements were normal, with no muscle spasm, there was a slight tenderness at the lumbosacral junction. Straight-leg-raising was unrestricted, hips and lower limb joints normal. There were no abnormal neurological findings in the limbs. Assessment: Essentially, this lady has a neck and low back pain which seems to have been produced or aggravated, by prolonged sitting at work. The letter you forwarded from Dr David Black, Chief Medical Officer with Air New Zealand refers to being "embroiled in a dispute ... regarding the provision of workstation furniture". Unfortunately, the problem is much wider than that. Ms McCafferty was very unhappy with the change in her role in July which she saw as a down-skilling from her previous work. She was put in an area of an office where she feels isolated from those other staff with whom she is supposed to be working. She is in a compartment surrounded by screens which she shares with two other women who are working for another business area. She felt that she was being harassed by her manager, and, with the encouragement of her workmates, she wrote a letter to the Harassment Officer of Air New Zealand. Subsequently, she has had several meetings with the Human Resources Manager, and is to attend mediation with her own manager at the end of this week. My opinion is that Ms McCafferty had longstanding, but relatively mild, postural symptoms which were greatly exacerbated by tension in the work environment in the second half of this year. Her recent symptoms must be regarded due to a combination of both physical and psychological factors. While it may be true, as Or Black states, that she was provided with a chair which met ergonomic standards, it is equally clear that she found an alternative chair more comfortable, and it seems unfortunate that she was not allowed to use that chair. The intransigente in this matter which she perceived in her employers has no doubt exacerbated her recent resentment over the change of her employment role." As a consequence of Dr Reynolds report the Corporation determined that her claim for cover be declined on the basis that her injury did not arise out of and in the course of employment but rather was the result of postural symptoms exacerbated by stresses in the workplace. The claimant sought a review of that decision and for the purposes of that review sought and opinion from Dr E W Dryson, occupational medicine specialist. Dr Dryson's report of 10 February 1997 does not mention Dr Reynolds' report at all and one presumes that he did not have the benefit of it when giving his opinion. In the history obtained by Dr Dryson he noted that the claimant had a history of abnormal fatigue. He noted that she had multiple positive fibromyalgia tender points predominantly in the upper body quadrants and there was evidence of adverse neural tension in the median nerve bias of both brachial plexuses. Dr Dryson's findings as stated by him were those of a fibromyalgia syndrome and that her generalised fatigue and morning stiffness were consistent with this. He noted there were other symptoms common in a fibromyalgia syndrome. He further noted that she had been in dispute with her employee over provisions of an appropriate chair for her workplace but it was likely that uncomfortable seating was an effect rather than a cause of her condition. 5 Following the review hearing but before a decision was given, the Review Officer sought further clarification from Dr Dryson of matters raised in his report of 10 February 1997. In his response of 11 June 1997 Dr Dryson refers to the report of Dr Reynolds and therefore it can be assumed he did not have it for the purposes of his earlier report. Dr Dryson noted that he and Dr Reynolds had reached different diagnoses even though their examination of Ms Mccafferty had only been six weeks apart. Dr Dryson observed however that prior to Ms McCafferty seeing him on 30 January 1997 she had had a work trial commencing on 6 January 1997 which had caused a flare up. Dr Dryson stated: "It appears likely therefore that the tender points which are the hallmark of fibromyalgia had developed subsequent to Dr Reynolds examination and before mine. It is recognised that lesser degrees of occupational overuse syndrome can in fact proceed to develop into a full blow fibromyalgia syndrome." It was on the basis of that understanding that Dr Dryson gave as his opinion that Ms McCafferty's work or work environment had a property of characteristic that either caused or contributed to her personal injury. Whether the correct diagnosis is that of postural strain as determined by Dr Reynolds or fibromyalgia as determined by Dr Dryson, or indeed both, Dr Dryson was of the opinion that there were work activities that were capable of either causing or at least significantly contributing to onset of her condition. Dr Dryson concluded his advice to the Review Officer as follows: "I have noted the ACC's memorandum which contains Dr Percival's comments. he has also noted the difference in clinical findings as recorded by Dr Reynolds and myself. We are both careful and painstaking clinicians and it is indeed likely that there was progression in symptoms between the two examinations. As stated above we do not know whether Bernadette was at the time of Dr Reynold's examination at a stage of relative improvement or whether in fact her fibromyalgia has only developed in the early part of this year. If it was the latter case then her previous symptoms, which is the subject of this claim, would indeed have been the postural strain diagnosed by Dr Reynolds. This would undoubtedly have been due to her job and she would have cover under the Act. It is my personal opinion that fibromyalgia can also be triggered by work activities. This may be physical and such as repetitive manual tasks or stress such as work pressure or unpleasant work surroundings such as are described by Dr Reynolds in this case. However I am also aware that other medical opinion is that fibromyalgia is essentially a stress related disorder which is therefore excluded from cover under the Act. It is my opinion therefore in this case that Bernadette does have cover in respect of her postural neck and low back strain and the subsequent development of fibromyalgia is attributable both to this and the stress that she experienced at work. it is my opinion therefore that the fibromyalgia syndrome was also caused or significantly contributed to by her work. I recognise that this is a different opinion to that expressed by Dr Percival. " The Review Officer found that Dr Dryson's diagnosis of postural strain which has subsequently led to fibromyalgia syndrone, was to be preferred to the other evidence and he ruled that the claimant has satisfied the various tests of s 7(1). The employer appealed against that decision and sought further opinion from Dr Black. In October 1997 Dr Black, who was now an Occupational Medicine Specialist in private practice, was asked to comment on the matters contained in Dr Dryson's report of 6 June 1997 as it impacted on Dr Reynold's earlier advice. It was Dr Black's opinion that Dr Dryson was saying that when Ms McCafferty saw Dr Reynolds there were no signs of fibromyalgia and therefore no diagnosis with which to link that condition then (in December 1996) with work. When he saw her at the end of January 1997 he found objective signs of fibromyalgia which could be linked with work. He further stated that Dr Dryson linked the change from December to January to the work trial in January and that this was interpreted by the Review Officer as indicating that the history of exposure in January was a change from December. This indicated that whatever happened in January was the cause of the conditions as seen by him at the end of January. Dr Black made the point that there was no such work trial in January. Indeed this fact was confirmed by Ms McCafferty at the hearing before this Court and she stated that she could not understand where that belief could have arisen. It is on the basis of that 7 circumstance that Dr Black contends that if Dr Dryson's diagnosis is correct and the cause of her flare up was something that happened in January, it did not happen at work and therefore the diagnosis which formed the basis of the Review Officer's decision might be suspect. Having carefully considered the submissions made by the appellant, this Court has come to the view that even though the Review Officer was made aware of the fact that there was no work trial and therefore any "flare up" could not have been work related, that does not appear to have been considered by the Review Officer in his decision. The Review Officer did not deem it necessary to gain further clarification from Dr Dryson before delivering his decision and indeed in a letter from Dr Dryson to the claimant of 17 June 1998 Dr Dryson still maintains the diagnosis of a fibromyalgia syndrome. This Court considers that the appellant has raised issues which do bear upon the central issue as to whether the Claimant does have cover under s 7 of the Act. The present state of the medical evidence is such that it is not a case where this Court can determine the issue one way or the other. Appeals of this nature should largely be inquisitorial and whilst the appellant has raised a matter which this Court finds clearly needs to be clarified, it is not a matter which the Court can say that of itself entitles the appellant to a finding that the Review Officer's decision ought to be revoked. Accordingly then, it is the determination of this Court that the matter be referred back to the Review Officer for him to refer the matters noted in this decision, together with the reports of Dr Black, to Dr Dryson with a view to him clarifying, should it need to be, his advice of 6 June 1997 knowing as he does now that the claimant did not have a work trial with Air New Zealand in January 1997 and therefore the " flare up", if it did occur, was not as a consequence of any work trial. Dr Dryson can be advised that it was the evidence of Ms McCafferty to this Court that there was no flare up or work trial in January 1997. 8 Following the advice of Dr Dryson I direct that the Review Officer issue a fresh decision. This Court does not seek to direct the Review Officer in any way as to what that decision should be, however, it ought to be made after giving all parties the opportunity of making any submissions to him following receipt of Dr Dryson's advice. Accordingly this appeal is remitted to the Review Officer for the purposes stated above. DATED at WELLINGTON this 23Roday of OCTOBER 1998 M J Beattie District Court Judge AirNZ.doc