Alliance Textiles (NZ) Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 166 / 97 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 TEXTILES (NZ) LIMITED of Milton Appellant (Appeal No. DCA 298/95) 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 S Alsweiler, advocate for the appellant and from Mr T P Cleary, counsel for the respondent with the request that I issue a decision on the papers The issue on appeal is whether Sandra Farquhar (the worker) suffered a work injury in the course of her employment by the appellant. The facts which give rise to the appeal are that the worker was a textile worker employed by the appellant. On 5 April 1995 she consulted her General Practitioner, Dr L R Wright and complained that she had sprained her left wrist at work. Dr Wright's diagnosis on the claim for cover form indicated was "injury to flexor musculature of wrist." On her claimant questionnaire, the worker stated that she had been employed as a Spinning Operator which involved "piecing in, stripping perns, lifting spools". She said that she had been in this occupation for some ten 2 months and that the pain in her wrist had occurred on 5 April 1995 when she was involved in "piecing in". She said that she felt the pain that day after lunch and saw Dr Wright at 4.45 pm that same day. In answer to the question about her outside activities, she said that she played netball approximately three hours per week. Dr Wright confirmed that the worker had no previous history of a similar condition nor any health problems which could contribute to it. It was Dr Wright's opinion that three days of work exposure had caused the injury. Dr Wright noted also that the worker's condition improved when she had a change in work activities and an absence from work. The appellant provided an employer questionnaire dated 20 April 1995 in which its Yarn Supervisor, Mr Walker said that the injury was not solely work related because he understood that the worker played netball and worked part time in a bar. He also said that the worker had not complained about the condition until the afternoon of 5 April 1995. He also said that when he asked the worker on 6 April 1995 about her wrist she told him that there had been no trouble the previous day when she was working in the Spinning Department. The respondent referred the file to its Southern Medical Advisor, Dr M Sinclair who considered that the worker's injury was caused by a gradual process injury because of her employment task and that the claim came within the requirements of section 7 in that it was the specific work undertaken by the appellant which caused the injury rather than her playing netball or working in a bar. On 12 July 1995, after a query from the respondent as to why it disputed the claim, the appellant said that it had employed a large number of people in the Spinning Department over a considerable period of years and there had been no previous history of similar incidents. It considered that within the terms of section 7(c) of the Act that there was not a significantly greater risk of that injury in its work environment. The worker was requested to complete a statutory declaration on 10 July 1995 detailing her position. She said: "On the 5.4.95 I reported to 2 of the Chargehands in the Spinning Department that I was feeling a pain in my left wrist when 'piecing in', and rung Dr Williams, and made an appointment for that same afternoon. After seeing the doctor I was referred to Liz Batchelor, Physiotherapist for the next 3 weeks. No- one seen anything happen, because it wasn't as if anything banged, fell on, or hit my wrist the injury is internal. The doctor & physio said it was R.S.I. I have never had anything wrong with my wrist before; apart from breaking it when I was about 11 yrs old. The duties I was doing involved lifting about 91 kg perns in about 20 minutes every 2 hours or so, and I use my left arm, also piecing in using my left thumb & index finger, which was when I really felt a pain. I can't see why my Boss "Allan Walker" is disputing this, I had no time off work." 3 The respondent then notified the appellant on 24 July 1995 that it considered the worker had suffered a work injury. The appellant applied for a review of that decision. Before the review hearing took place the respondent obtained a report from Dr Wright which is dated 6 October 1995 and states: "Further to our telephone conversation of last week and having now formally examined Sandra again, I can give you the following information with regard to the injury affecting her left hand. Sandra injured her left hand while working at Alliance Textiles on the afternoon of the 5th April 1995. The cause appears related to her work at the mill whereby she was "piecing in". This involves a twisting motion of the left hand to insert new wool into existing strands. I understand she does about 95 separate threads every hour and these all need to be done roughly about the same time. In addition to this her duties involve lifting purns of spun wool (again about 90 every hour) for which she was using her left hand. She noted gradual onset of pain in her left wrist as the afternoon progressed and presented here later that afternoon. At that time she was noted to have a tendonitis developing in the left wrist and was referred for physiotherapy. Initially it was queried whether in fact she may have been developing a left carpal tunnel syndrome. Despite physiotherapy and certification for light duties, she failed to significantly improve and indeed examination now reveals the presence of a fusiform swelling approximately 5 x 2 cms over the flexor tendons on the left wrist. This is undoubtably (sic) a small tendon bursitis or ganglion related to the repetitive nature of her problem. There. has been some question to the possibility of a previous fractured wrist contributing towards her problem , however I note that her wrist was fractured in about 1983 and to date has really not been of any significance what so ever, therefore I feel that it is unlikely that it is contributing in any way to her current problems. I understand at present she is managing at work OK because she has changed her job. Whereby previously she was in the spinning department, she is now in the carding department where she hardly needs to use her hand at all and as a result is able to cope very well. In conclusion I have no doubt that her injury is occupationally related, just by the nature of the work she describes. I feel that the previous fracture to the wrist in no way contributes to the current problem. The current disability she presently has , ie:- the ganglion present over the flexor tendons will probably persist until it is either formally aspirated or excised. I trust this is of some assistance to you. Unfortunately I feel I must comment that in general I am finding a lot of patients who work at the local textile mill are extremely frightened about reporting work related injuries because of what seems to be harassment from the management at the mill. In many cases people are putting up with injuries until it reaches a point whereby something definitive needs to be done or that that they require time 4 off work in order for their injuries to recover. This is not an ideal situation for their them (sic) healthwise, however I am unsure as to what can be done to alleviate this problem. I trust all of this is of assistance to you." The Review Officer noted that the worker had stated that she had only worked at the hotel for 11/2 years but had stopped work in February 1995. She then worked at a country club in April on a casual basis for possibly two hours each fortnight. She said that she had no problems with her wrist in those jobs because she was right handed. He also noted the evidence which she had given by way of declaration and the report from Dr Wright. The Review Officer also considered written submissions provided by Mr Alsweiler in which he had submitted that the claim did not meet the criteria set out in paragraphs (a) to (c) of section 7(1). He submitted that the work did not involve extensive use of the left wrist and the particular work task involved in piecing was only a minor part of the worker's task. He submitted that there was not a significantly greater risk of developing the condition from that task as there had been no similar wrist injury reported in the Spinning Department since 1985. He submitted further that the worker had been engaged in this work for ten months without any problem. The Review Officer concluded that on the basis of the evidence of Drs Wright and Sinclair, there was a property or characteristic of the work task which caused or contributed to the condition. That property or characteristic was a repetitive hand manipulation involving twisting and lifting of the left hand. She accepted that pursuant to section 7(2), it was not necessary that that property or characteristic had to be present throughout the whole of the worker's employment. The Review Officer concluded that on the evidence, the casual bar work and netball did not contribute to any material extent to the appellant's problem. The Review Officer considered that on the medical evidence and particularly that of Dr Sinclair, there was a significantly greater risk of the worker suffering that personal injury in that employment task than for persons who did not perform it in the same environment. It is against that decision which the appellant now appeals. The appellant concedes that the only issue is that of section 7(c). Mr Alsweiler submitted that the provisions of that section are specific and relate to a specific employment task and requires that the risk of suffering injury is significantly greater for people who perform that employment task. He submitted that the respondent is not well situated to make an assessment of that situation as it is not involved in the type of work undertaken by the appellant and did not inspect the workplace or the work task. He submitted that the wording of the section requires the specific work task of the worker to be considered and it is not possible for the respondent to determine that the worker was exposed to greater risk because of her employment in a given industry or by a particular employer. Mr Alsweiler submitted that the susceptibility of an individual to an injury is not a factor and that the test is the risk of injury from that employment task. He submitted that the particular employment task has been going on for many years in an unchanged form and there is no record of anyone suffering a similar injury to that suffered by the worker during those years. 5 Mr Cleary submitted that the provisions of section 7(1)(c) have been the subject of a number of decisions in this Court. The issue was considered by Judge Imrie in Bilkey V ARCIC (67/94) when he concluded: "One of the difficulties in interpreting paragraph (c) is that the legislation has gone from a particular description, ie "that personal injury" to a general description, ie "for persons". I consider that in this case s.7(1)(c) should be read: "Personal injury shall be regarded as being caused by .. (?) infection arising out of and in the course of employment only if ... (c) the risk of suffering that personal injury, that is a skin infection of a person with Darriers Disease, is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment." Stated that way clearly the appellant comes within paragraph (c)." In Blumhardt v ARCIC (38/97) Judge Ongley concluded: "It appears that the Review Officer elevated a question of evidence into a conclusive test for the requirement under s.7(1) (c). If no other work of performing a similar employment task had suffered from the condition like that of the appellant that would be one piece of evidence to take into account in deciding the question of comparative risk for persons performing the appellant's employment task as against persons not performing that task. The Review Officer however acted on a wrong principle in considering evidence on that point to be conclusive. The appellant provided written submissions in support of the appeal. It might be said that in the course of those submissions the appellant fell into a similar trap in submitting that because he did not suffer a repetitive strain injury before his employment, but did suffer such an injury when he was employed, it must be accepted that the risk was significantly greater for persons performing the employment task than for persons who do not perform the task. That approach is purely subjective and fails to examine the nature of the employment task and the employment environment under section 7(1) (c). The appeal must be allowed and the claim for cover referred for rehearing before a Review Officer. There is a difficulty of interpretation of section 7(1)(c). One question is whether persons" are persons generally or persons with a characteristics of a claimant. Two decisions of this Court are those of Bilkey and a decision of Mallia which has just been issued. A proper construction appears to be to take into account all persons including persons with the general characteristics of the claimant. The inevitable question is therefore whether persons with the claimant's characteristics have a significantly greater risk in terms of s.7(1)(c)." 6 Mr Cleary submitted that on the balance of probabilities the evidence indicated that the risk of suffering the injury was significantly greater for the worker carrying out her particular tasks than for someone working in the mill but not carrying out those tasks. He submitted that in spite of the appellant's evidence that there has been no similar injury in the mill, this did not get over Judge Ongley's findings as to the correct interpretation of section 7(1)(c) and the evidence of Drs Wright and Sinclair. Dr Sinclair had concluded that the risk of the tasks inducing such an injury as tendonitis were "increased". The only issue is whether the evidence brings the worker's injury within the scope of section 7(1)(c). The only medical evidence is that of Drs Wright and Sinclair, both of whom take the view that a work injury did occur within the scope of section 7(1)(c). The appellant's principal argument is that because no other similar injury had occurred to its knowledge for a considerable number of years, it could not have been the work which caused the injury. I have referred to Judge Ongley's remarks in Blumhardt because they refer to a similar argument put forward in that case. With respect, I adopt his remarks in this case because despite the fact that there have been no other similar injuries in the mill, the medical evidence indicates that the cause of the worker's injury was the repetitive work with her left hand which caused the problems. It is interesting to note that the appellant's dominant hand is her right hand and that the particular work which the medical evidence considers responsible for the problem was done with her left hand. The Court must be guided by the medical evidence which is uncontradicted. The appeal is dismissed. DATED at WELLINGTON this 8" day of August 1997 A W Middleton District Court Judge dc298-95.doc (nr)