Alliance Group (T A Fagg) v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 61 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 ALLIANCE GROUP (T A FAGG) of Dunedin Appellant (Appeal No. DCA 130/95) 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 I Alsweiler, advocate for the appellant, and from Ms G S Hancock, counsel for the respondent, with a request that I issue a decision on the papers The issue in the appeal is whether an injury sustained by Terry Allan Fagg (hereafter referred to as Fagg) is a work injury in terms of the Accident Rehabilitation and Compensation Insurance Act 1992. On 6 May 1994 Fagg lodged a claim for cover with the respondent in which he stated that he had suffered "pain down the back of neck due to working position leaning forward". Fagg's general Practitioner described the injury as "chronic strain injury muscles and ligaments cervical spine". The respondent requested further information from the appellant's doctor and from the appellant because of the claim that Fagg had suffered a work injury. Fagg stated in the questionnaire sent to him that the condition had developed "over the last couple of months". He said that his first day off work was 5 May 1994 when he took the day off to visit his doctor. The appellant's doctor certified that 2 he was being treated with anti-inflammatories and physiotherapy, but he was not then able to continue work. The doctor indicated that Fagg had no previous history of similar complaints. The appellant replied to the questionnaire and said that it had received no similar complaints regarding similar problems with any other employees doing the same job and that Fagg had only complained about his condition after having been to his own doctor. Fagg advised the respondent that the job which he did involved making up cartons from flat sheets of cardboard at a bench which was approximately 1200 mm high so that it was above his waist level. He had to work down from the top of a pile of cardboard sheets building each sheet into a carton. His other tasks involved bringing in pallets of cartons and stacking the bundles of flat cartons in heaps. A file memorandum from the respondent's medical advisor, Dr Donaghue, of 3 August 1994 under the heading initial comments or requests, states: "Sustained posture flexion is likely to cause this. The employers comment does not take into account the difference in people's own heights and the need for individual work stations i.e. neglects ergonomics." Dr Donaghue recommended acceptance of the claim. The appellant replied to the respondent's request for information by stating that there had been no work on 5 April as this was observed as Anniversary Day and that Fagg had suffered previous accidents in which he had followed the correct procedure. The statement then says: "Not reported as an accident but mentioned to his supervisor that he had a sore neck. His supervisor offered to make an appointment with our Plant Doctor (Dr Stephen Young)." He said he would go to his own doctor if he needed to go. On 19 October 1994 the respondent notified the appellant that the claim was accepted as a work claim arising out of "gradual process occurring over a length of time not as a specific incident". The appellant applied for a review of that decision. At the review hearing the appellant was represented by Mr Alsweiler and Mr Carvell. Mr Alsweiler submitted that Fagg had not reported an injury to the appellant nor had the company doctor been informed of any problems experienced by Fagg. He said that Fagg had told Mr Carvell, his Safety Officer, that he was unsure whether the injury had been caused by work and that it was after mentioning where he was employed that an officer of the respondent told him that the injury was probably work-related. Mr Alsweiler submitted that while 3 the respondent had accepted the claim as a gradual process there was no evidence to support this. Mr Alsweiler submitted that there had been no other reported similar cases in the factory. As Fagg did not appear at the review hearing the review officer sought information from him and he supplied a statement at the respondent's office in which he stated: "Due to my working condition I was getting a pain down my neck. This pain just appeared. I have explained this previously to ACC and Mr Carvell and I asked him to bring a letter I gave him to the hearing. The comment Mr Carvell has made has been a bit misinterpreted. I'm not sure how the injury happened, I assume it was my working condition because I haven't been doing anything physical, i.e. sport etc. I am unable to write as you requested as my right arm is in plaster." The review officer noted that the respondent's medical officer had suggested that it would be wise to obtain a report from an occupational physician or rheumatologist. This appeared to be difficult because at that stage the appellant had recovered and was then back in employment. On the basis that, while he had doubts as to whether the injury was work-related, the review officer considered that the fact that Fagg had mentioned the problem to Carvell who offered to make an appointment with the Plant Doctor, persuaded him that the problem was work- related. The review officer declined the application for review. The appellant appealed against the decision and submitted that the decision of the review officer was wrong. The appellant submitted that the suggestion that Mr Carvell offered to make an appointment to see the Plant Doctor did not in any way signify that the appellant accepted the result as a work injury. The respondent thereafter arranged for Fagg to be examined by Mr P Trolove, a rheumatologist at the Dunedin Hospital. His report of 4 December 1995 states: "I saw Mr Fagg today at the request of the Corporation to assess the disability he has suffered in his neck. In May 1994 he reported a neck pain stating that the onset occurred while making cardboard boxes in the freezing works. He was particularly aware of the pain in his neck posteriorly which persisted even into the evenings after work. The pain was localised to the posterior midline area to the base of the skull. He denied prior neck problems and was not playing active sport at that time because of an injury to his ankle very much earlier in the season. The work involved a very rapid and marked shoulder activity to make up the boxes to supply two areas within the works and at times, this involved running to supply the two rooms in order to keep up with the packing. 4 The pain has persisted but is less marked than it was initially and earlier he had sleep disturbance due to the pain but this too is much easier. His health is otherwise good and he copes reasonably well in maintaining his own home. EXAMINATION Mr Fagg is a strongly built man with excellent muscle development and his neck had a full range of pain-free movement in all directions and I could elicit no tenderness. His shoulders, too, were entirely normal and I could detect no abnormality in other joints. With regard to your specific questions: CONDITION As described to me, he had features suggesting a strain of the nuchal ligament and its associated attached muscles. From his story and his examination, the condition does seem easier and I could find no abnormality on physical examination. MOST LIKELY CAUSE The nature of the work as described to me and from my own working knowledge of the freezing industry is quite consistent with the development of ligamentous and tenderness discomfort about the neck and shoulders. I have been unable to ascertain other causes of injury and I understand this is the point of dispute but he is quite adamant that he was not playing rugby at that time because of a prior ankle injury which had occurred during an early season practice. As your letter acknowledges there has been quite marked change between the time of the injury and the present time and he is showing little active tenderness or disability at the present time. Strain injuries about the nuchal injury are often seen following rapid and repetitive upper arm activity especially when the trapezius and latissimus dorsi muscles are involved." Ms Hancock submitted that Fagg's injury was not caused by a specific event or series of events but by a gradual process over a period of time. She submitted that Mr Trolove's report indicated that Fagg's work was the most likely cause of the injury. Ms Hancock further submitted that in considering the question of whether there was a greater likelihood of persons performing a similar employment task suffering such an injury Mr Trolove considered that strain injuries similar to Fagg's are often seen following the kind of task he was performing 5 The issue has to be considered under s.7 of the Act which states: '7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment --(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 Ist day of April 1974, 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 b) 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 task 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 person's employment. .... The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which - (a) The person first received treatment from a registered health professional for that personal injury as that personal injury; or (b) That personal injury first resulted in the incapacity of the affected person - whichever first occurs. ..." A work injury is defined in s.6 and "means personal injury arising out of and in the course of employment of that person". The matters which trouble me are that when the issue was referred to Dr R J Robinson, the appellant's medical advisor on 5 December 1995, he considered " the medical evidence is so scanty that I would hesitate to make any form of recommendation. There really needs to be a referral from an occupational physician or a rhematologist". It was on the basis of this recommendation that the appellant was referred to Mr Trolove. Mr Trolove can only say that from his own knowledge of the freezing industry the problems suffered by the appellant are "quite consistent with the development of ligamentous and tenderness discomfort about the neck and shoulders. I have been unable to ascertain other causes of injury and I understand this is the point of dispute but he is quite adamant that he was not playing rugby at that time because of a prior ankle injury which had occurred during an early season practice". That statement appears to be as far as Mr Trolove can take the issue. While it is alleged that the accident occurred on 5 April 1994 the symptoms do not appear to have been of very long duration and Fagg apparently returned to his previous occupation. Furthermore, Mr Trolove appears to be saying that because he cannot attribute any particular reason for the problem it must be work related. In appeals such as this the standard of proof is on the balance of probabilities. I do not think that Mr Trolove's opinion satisfies that onus and still leaves the position very 6 much as Dr Robinson assessed it. At the time he saw Mr Trolove in December 1995 Fagg had no abnormality on physical examination. In these circumstances it seems to me that the injury may have been a passing phase and not an injury of the nature contemplated by the gradual process which would bring it within the requirements of s.7. I find it difficult to contemplate that the evidence satisfies all the elements of s.7. I consider that this was only a transient episode which does not fulfil the requirements of a work injury. The appeal is therefore allowed. DATED at WELLINGTON this 20TH day of AUGUST 1996 A W Middleton District Court Judge de13095.doc(rd)