Spittlehouse v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 39/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ALAN WILLIAM SPITTLEHOUSE 13 96/009 cy of Balclutha Appellant (Appeal No. DCA 287/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr P B Churchman for the appellant and from Mr T P Cleary for the respondent with the request that I issue the decision on the papers. The issue of appeal is whether the appellant suffered a work injury arising out and in the course of employment on 3 September 1993. The appellant lodged a claim for cover with the respondent on 17 February 1995 in which he stated that he had suffered a "myocardial infarction whilst preparing to go to work after physically stressful/mentally stressful work". The appellant submitted a statutory declaration to the respondent which is dated 3 April 1995 and states: "I started work at Rosebank Sawmill Sep 1979 employed as an electrician/Gen maintenance March 92 I was directed to work alternating shifts with the other maintenance man i.e 6.30 - 3 pm/3 pm 11.30 pm I was also on call while the mill was operating 16 hrs a day - plus working at weekends. I was the only electrician 2 employed at the mill and was under increased pressure with new installations maintenance and callouts I was employed maintaining heavy industrial electrical & engineering work. Often after the early shift I would be called out late at night and on late shift not getting home until midnight I would be called out before 6 am - the pressure of work began to effect my health as I was 56 I asked my employer to be allowed to just work the early shift - this was refused point blank each time I asked with the remark - if you don't like it leave - (I'd been there 13 yrs). I began installing more heavy equipment as the mill was again expanding with no option but to work the day shift starting at 6.30 am. Often working 12 - 14 hr a day. Dec 92 the other maintenance man had a serious car accident suffering severe head injuries - he was off work for several months - returning part time - leaving me on my own to maintain the mill adding more pressure with no option but to work on average 57 hrs week. Tuesday 24 Aug I went to the doctors suffering from flu. I was told to take at least 4 day off work. My employer phoned on Friday morning 27 Aug and directed me to go into work to fix an electrical breakdown which took the remainder of the day - in spite of still feeling unwell I returned to work the following week still feeling the effects of the flu & still on medication Friday 3 Sept 1993 B I was preparing to go to work about 6 am when I suffered a major heart attack." On 29 December 1994 the respondent notified the appellant's union that it did not consider the heart attack suffered by the appellant came within the provisions of section 6 of the Accident Rehabilitation and Compensation Insurance Act 1992. After further investigations from the appellant's employer and the medical practitioner who had been involved with his problem, the respondent advised on 14 August 1995 that: "The application for cover lodged in respect of your injury on 3 September 1993 has been considered. Unfortunately I must advise that the application has been declined. The Accident Rehabilitation and Compensation Insurance Act 1992 specifically excludes from cover any personal injury caused wholly or substantially by the ageing process." The appellant applied for a review of that decision. The review officer in her decision recorded the background which gave rise to the appeal as being: "Mr Spittlehouse is a 59 year old man who lives in Balclutha. The Corporation received a Claim for Cover and Treatment Expenses form filled out by Doctor Cook stating that Mr Spittlehouse had suffered a myocardial infarction whilst preparing to go to work after physically stressful/mentally stressful work. Mr Spittlehouse wrote that his injury was caused "working shift work long hours plus call outs while unwell with flu suffered a heart attack." 3 The Corporation obtained information from Mr Spittlehouse regarding his work, and he provided a Statutory Declaration and several letters. He said that he had had flu on 24 August 1993 but had returned to work at the request of his employer on 27 August. He said that he had still felt sick the next week, and on the Friday of that following week at 6 a.m. whilst he was preparing to go to work he had suffered a heart attack. The Corporation obtained further medical information from Doctor Cook and Mr Spittlehouse's Union became involved and sent a work history. The Corporation wrote to the Union on 29 December 1994, stating that it would seem that Mr Spittlehouse suffered a heart attack as a result of culmination of mental rather than physical effort, and the attack was not suffered while undertaking work at his place of employment. The Union responded that it considered that Mr Spittlehouse was under physical strain as a result of his long hours. Further information was obtained from Doctor Cook, and she wrote on 7 July 1995, stating that Mr Spittlehouse had a large myocardial infarction. He had been hypertensive prior to that but that condition had been well controlled. She wrote that Mr Spittlehouse had been doing longer hours than his shift called for and had been on call and was under a great deal of mental and physical stress at the time that the coronary occurred. The Corporation's Senior Medical Adviser for the Southern Region advised that Mr Spittlehouse appeared to be under some work related stress but the heart damage was not precipitated by a specific severe physical effort." There appears to be no argument that that statement correctly sets out the background which gave rise to the appeal. The appellant confirmed to the review officer that in the period leading up to the heart attack he had had the flu but that because of the requirements at work he had no option but to continue working. The review officer concluded that as the heart attack did not occur while an employment task was being performed at the appellant's place of employment or in any of the other circumstances referred to in section 3 in the definition of "arising out and in the course of employment", the application for review had to be declined. She also held that as the attack did not occur at a time when the appellant was exerting physical effort or physical strain which for him was abnormal in application or excessive in intensity, the application for review was declined. In his submissions Mr Churchman has referred me to the relevant sections in the 1992 Act. He also referred to an article by Judge Blair in the 1982 New Zealand Law Journal in relation to heart attacks and accident. He submitted that on the basis of 4 that article heart attack is the end result of the injury and not the "accident itself". He submitted that as long as the external precipitating factor causing the injury and leading up to the subsequent heart attack took place during the performance of a work task at the workplace and would not have occurred but for the person being in that person's place of employment, one of the requirements for a work injury had been established. He submitted that it was not a necessary requirement that the heart attack occur contemporaneously with the injury or that the attack itself occurred at the workplace. However, he considered that there must be a causal link between the injury and the heart attack, and that heart attacks can occur in the natural progression of a disease without a triggering event. He submitted that under the 1992 Act, the provision of "stress" as an allowable cause for such an episode to qualify for cover had been removed and that 'effort and strain' are limited to effort and strain which are physical in nature. Such an assessment must rely on the medical evidence. He submitted that the temporal relationship is not always immediate in such cases. In his submission, the major cause of the heart attack was the moving of heavy industrial equipment at the sawmill on the previous day. I accept that there is no argument that the appellant has suffered a heart attack and the principal issue is whether it comes within the requirements of the Act if the appellant is to be entitled to cover. Mr Churchman submitted that the attack was caused by physical effort or strain which was both abnormal in application or excessive in intensity for this appellant, particularly, as the original basis of his employment had been changed and he was required to undertake much heavier work. On the day prior to the attack he had been required to drag a heavy motor and gear box to the centre of the sawmill aided by only one other person. He submitted that it was this excessive work which lead to the heart attack. Mr Cleary referred to the two medical reports which had been considered by the review officer. In one of those Dr Cooke had stated on 22 August 1995: "Firstly, the time of Mr Spittlehouse's attack was 6 am in the morning and one of my assistants saw him at that time and admitted to him to Balclutha Hospital at 7am on September 3rd 1993. His last examination prior to this time had been on 26 August 1993 at which time he was treated for an upper respiratory infection. He did at this time have a little noise in his upper chest, but his heart was normal as it had been on all his previous checks. Mr Spittlehouse had been mildly hypertensive for some years prior to his myocardial infarction but had never had any signs or symptoms of ischaemic heart disease. At the time of his heart attack he had been working long hours and had been under a great deal of mental stress but had also been required to do more physical work than normal. Therefore he had been under both physical and mental stress, although he was not making a specific physical effort at 6am in the morning when he developed the pain." And Mr C Low, a Consultant Cardiologist had said on 4 November 1994: 5 "I am writing regarding the contribution of stress and long hours of work to Alan's cardiac condition. There is no doubt that stress increases blood pressure and therefore may impair blood pressure control. Certainly some of the impairment of heart function may be due to suboptimal control of blood pressure. The contribution of stress and long hours of work to the genesis of myocardial infarction is imperfectly understood. Certainly, a significant body of scientific data would support a contribution of stress as a risk factor to ischaemic heart disease. Given the situation, I think it would be very difficult to say that stress and long hours of work did not make some contribution to Alan's condition. It is difficult to be any more precise than this, I think." Mr Cleary also referred to the fact that after the notice of appeal was lodged a further report of Mr Low dated 25 January 1995 stated: "Mr and Mrs Spittlehouse have been discussing with me the possibility of a further opinion regarding the ACC claim for Alan's myocardial infarction. They have provided me with more detailed information about the circumstances under which Alan had the myocardial infarction. Apparently Alan had had a bad dose of flu before the onset of his heart attack and he was still on antibiotics and not fully recovered the week of his myocardial infarction. He had been called back to work despite being on sick leave and, on the evening prior to his myocardial infarction, had had to move a very heavy motor and gearbox which would usually necessitate lifting gear, but this was not available in the situation. Therefore two men had to manually move the motor and gearbox, which was very heavy, over a significant distance. This was reported by Alan as being extremely strenuous physical exertion. He finished work at 6pm on that evening and, when he was heading of (sic) to work at 6am the following morning, suffered the initial symptoms of his myocardial infarction. It is certainly possible that strenuous physical exertion, which would have necessitated a certain amount of very strenuous isometric exercise, could have caused an elevation in blood pressure and intimal plaque disruption. There is good evidence to heart attacks being related to periods of strenuous physical exertion but the temporal relationship is not always immediate. There may have been some intimal damage to the artery and thrombus formation which accelerated over a period of maximum platelet aggregation and blood coaguability in the early hours of the morning. It is, of course, impossible to prove cause and effect under these circumstances with strenuous exertion during a period of significant debility causing a myocardial infarction some twelve hours after cessation of exertion. The timing, however, would not be inconsistent with his strenuous effort having caused initial damage to the blood vessel and thrombus formation accelerated in the early hours of the morning caused presentation with myocardial infarction early the next morning." 6 Mr Cleary then referred me to the relevant sections of the Act being section 3, section 4 and section 6 and submitted: 1. That the onus of proof lies on the appellant to show on the balance of probabilities that he has suffered a work injury arising out of and in the course of his employment. This submission is based on the decision in West v Firestone Tyre and Rubber Co of NZ Ltd [1992] NZLR 23 (CA). 2. That the review officer had determined that the appellant's myocardial infarction did not occur while any task was being performed and that this precludes cover under section 6. The combined effect of section 4 and section 6 is that cardio-vascular episodes may be personal injury if they arise out of and in the course of employment and that pursuant to section 3 in order for a cardio-vascular episode to arise in the course of employment it must occur while an employment task is being performed. 3. That on the medical evidence it is possible that strenuous exercise could have caused an elevation in blood pressure and intimal plaque disruption but that there is doubt whether these physiological changes constitute injury. 4. That Mr Churchman's reference to Judge Blair's article is not relevant because the definition in the 1982 Act of personal injury by accident provided that a cardio-vascular episode merely had to result from an employment task which is abnormal. He submitted that the 1992 provision requires not only that the cardio-vascular episode is caused by abnormal effort but it must also occur while performing an employment task. 5. That there is insufficient evidence to conclude that the appellant's myocardial infarction was caused by physical effort or physical strain any more than mental stress associated with increased workload. 6. That the appellant had conceded in evidence to the review officer that the moving of the motor and gear box had been a regular part of his work for "the last couple of years". The issue falls to be decided under sections 3, 4 and 6 of the Accident Rehabilitation and Compensation Insurance Act 1992 which respectfully said: Section 3 of the Act reads: "Section 3 of the Act reads: Arising out of and in the course of employment' means arising out of employment and arising in the course of employment: 7 'Arising out of employment', in relation to a personal injury, means an injury that would not have occurred but for the person being in that person's place of employment, and it shall not be relevant that--- (a) The person may be acting in contravention of any Act or regulations applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or . (b ) The person may be working under an illegal contract; or (c) The person may have indulged in or been the victim of misconduction, skylarking, negligence, or been the victim of any force of nature: 'Arising in the course of employment', in relation to a personal injury, means an injury that occurs--- ) While any employment task is being performed at a place of employment; or (b) During any temporary interruption of work for a meal or rest or refreshment, if the accident happens at the [person's place of employment; or (c) While the person is attending a course of education or training for the purposes of the person's current employment, and the person receives earnings from that employment in respect of that attendance; and any such place shall be deemed to be a place of employment of that person; or (e) While the person is travelling between a place of employment and another place by the most direct practicable route for the purposes of necessary health care treatment or service in respect of a work injury, being health care treatment or service of a kind for which the Corporation or the exempt employer is required or permitted to make payments under this Act, irrespective of whether or not it makes any payment in the particular case--- but does not include an injury that occurs--- () While a person is travelling to or from the person's place of employment (other than between places of employment) unless paragraph (e) of this definition applies or the person is an employee and the transport is provided by the employer and is driven by the employer or, at the direction of the employer, by an employee of the employer or of a related or associated employer for the purpose of transporting employees; or (8) While the person is in accommodation provided by or at the expense of the employer, or by or at the expense of the injured person where the injured person is not an employee, and in either case is not performing employment duties; or (h) While the person is participating, other than at the person's place of employment, in a recreational activity provided by or at the expense of the employer or sponsored by the 8 employer, or by or at the expense of the injured person where that person is not an employee:" 3.2 Section 4 of the Act reads: "4. Definition of 'personal injury'--- (1) For the purposes of this Act, 'personal injury' means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by section 8(3) of this Act. (2) For the purposes of this Act, no cardio-vascular or cerebro- vascular episode shall be regarded as personal injury unless-- (a) It is result of medical misadventure; or It is a work injury by virtue of section 6(1) of this Act." Section 6 of the Act reads: "6. Definition of 'work injury'-- ( 1 ) For the purposes of this Act, 'work injury', in relation to any person, means personal injury arising out of and in the course of employment of that person; and includes a cardio- vascular or cerebro-vascular episode where--- (a) That episode is caused by physical effort or physical strain arising out of and in the course of employment; and ( 6 ) That physical effort or physical strain is abnormal in application or excessive in intensity for the person suffering it. (2) Personal injury that is medical misadventure does not arise out of and in the course of employment unless it results from treatment by a registered health professional on behalf of the employer at a place of employment under the control of the employer." It is clear from the evidence that the appellant suffered a cardio-vascular episode at his home while preparing to go to work on the morning of 3 September 1993. At that time the appellant was suffering from flu and all the evidence confirms that he had been under considerable pressure and stress at work because of the shift system operated in the mill and the requirement that he should be on call at any time. I do not accept his submission that the moving of the motor and gearbox on the previous day was necessarily unusual for this appellant because he conceded to the review officer that he had been doing similar work over a period of two years prior to his heart attack. While the medical reports confirm that the appellant had been under stress the specialists are not able to establish that this was the cause of the appellant's heart attack. While the flu combined with the stress and exertion might have placed 9 added pressure on his physical well-being, the medical evidence goes no further than that. Notwithstanding that position, the requirements of the Act are that for the appellant to obtain cover on the ground that he has sustained personal injury arising out of and in the course of employment, it is necessary for him to establish both that the cardio- vascular episode occurred at his place of employment while he was performing an employment task. I agree with the review officer that whatever the cause of this appellant's cardio-vascular episode, it id not occur either at his place of employment or while he was performing an employment task. Furthermore, it cannot be said, on the evidence, apart from the stress factor that the appellant had been involved in any physical effort or physical strain which was abnormal in application or excessive in intensity for him because he had conceded to the review officer that the work he was doing on the day prior to the episode was similar to the work he had been doing for the previous two years. I agree with the review officer that the appellant has not satisfied the onus on him and that the decision reached by the review officer was correct. The appeal is dismissed. DATED at WELLINGTON this the day of June 1996 Asounddula A W Middleton District Court Judge dc287-95.doc (nr)