Bank of New Zealand v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 13/2002 AI. 154/01 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 IN THE MATTER of an appeal against Review Decision No. DRSL 1481 BETWEEN the BANK OF NEW ZEALAND Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 3 October 2001 DATE OF DECISION 23 January 2002 COUNSEL Mr D Bennie for Appellant Mr I G Hunt for Respondent DECISION OF JUDGE P F BARBER The Issue [1] On 16 March 2001 Review Officer P Barker, in a clear and comprehensive decision, dealt with the decision of the insurer to attribute costs from the claim of a Ms A Smith to the appellant for the purposes of experience rating. Those costs were paid in the financial year 1998/1999. Ms Smith lodged a claim in August 1996 for cover relating to pain in her left wrist from keyboard duties in her employment with the appellant The Review Officer found that Ms Smith’s claim is a qualifying claim and that the insurer had properly used its discretion to attribute the said costs to the 2 appellant’s experience rating. Accordingly, that the appellant’s application for review was dismissed. [2] This appeal flows from the experience rating invoice issued by the Corporation on 24 August 1999. The Review Officer upheld that and found that personal injury was established and that the tests of section 7 of the Act were met. Accordingly, the real issue before me is whether the respondent properly exercised its discretion under s 104 of the Act to determine a qualifying payment for the purposes of attribution to the employer’s premium liability (refer Horizon Printing and Packaging Ltd No. 165/2000). Background [3] In August 1996 Ms A Smith lodged a claim for cover. Her general practitioner, Dr Farrar, had diagnosed traumatic tenosynovitis of the left wrist. She was referred for physiotherapy. In the original ARC18 form Ms Smith was described as being fully unfit. [4] On 14 August the respondent sought completion of a GP3 questionnaire to enable it to make a decision on the claim. It simultaneously advised Ms Smith that her claim was being considered under Section 7 of the 1992 Act. [5] The employer referred to Ms Smith’s job description and duties as “Data entry via computer keyboard. Relating to actioning customer’s requests for banking transactions and ordering bank statements for customer’s accounts”. [6] The employer advised that it did not consider the injury to be solely work-related but to be partly work related, mentioning that “Ann [Smith] completes miniature water colour paintings which occupy a significant part of her own time. The stresses from this would contribute to her current condition”. Ms Smith had not suffered from the condition before commencing work with the employer. The employer’s response also indicated that site visits in December 1995 and June 1996 had shown that Ms Smith’s VDU was lower than recommended in order to accommodate her bifocal lenses. [7] Ms Smith herself described her disease or condition as “Very painful left wrist to a lesser extent my right wrist”. She described her job as involving diary list, daily processing, transferring – from account to account and send out statements. [8] As to how her condition developed, she described the fact that on the 15th to the 20th of that month (presumably July 1996), there was a very high amount of work to process, plus the fact that “work load has doubled due to centralisation”. [9] A file note dated 2 September 1996 records that the respondent had clarified the employer’s concern regarding the miniature water colour paintings. The Claimant herself said that this was just a hobby. She would only be doing some in the weekends, or whenever she fancied doing it, but it would be for only one hour. She said it was not stressful at all, but a form of relaxation for her as it was just a hobby. She said that her main problems were with her left hand but when she painted she used her right hand as she is right handed. 3 [10] A 5 September 1996 branch medical advisor’s questionnaire implicated increased data entry as causing or contributing to her condition by gradual process disease or infection, excluded any non-work activities as having significantly contributed to the development of the condition, and stated that in answer to the question of whether the risk of suffering the condition was significantly greater for people performing this work activity than for people who don’t; “Probably yes in my medical view”. He concluded that Section 7 was satisfied. [11] On 9 September 1996 the employer was advised that the claim for cover for tenosynovitis in the left wrist had been accepted pursuant to Section 7 of the Act. [12] Subsequently Ms Smith returned to work on a part time basis. Entitlements were paid including weekly compensation, the provision of physiotherapy and home equipment. [13] In a further medical certificate dated 16 September 1996 Dr Smyth (locum for Dr Farrar) noted that Ms Smith “had been reviewed by Graham Chiu, a rheumatologist who agrees with diagnosis [of traumatic tenosynovitis]”. Other further medical certificates issued by Dr Farrar continued to note the diagnosis as one of traumatic tenosynovitis. [14] In July 1997 the respondent wrote to Dr Smyth seeking an updated report in respect of Ms Smith. Dr Smyth responded on 17 July 1997 and recorded that Ms Smith had been seeing her intermittently since September 1997 (presumably meaning 1996). In her report Dr Smyth noted that; “Her employer arranged, independently, a “specialist review” with Kier Howard. I do not know anything about Dr Howard, but had spoken to Dr Tom Farrar who advised me that he was not a practising “clinician” and I therefore had doubts about following his advice. As yet he has not written to me directly but only to Ann’s employer, which highlights the problems with employers attempting to refer patients to “specialists”. Dr Howard’s report makes statements such as “possibly suffering from” and “if my diagnosis is correct”. [15] On 1 September 1997 the Corporation referred Ms Smith to Nerys C Parry a psychologist, for cognitive therapy and relaxation techniques. This had been recommended by Drs Howard and Smyth. [16] In a report dated 19 February 1998 Dr Chiu recorded that Ms Smith suffered from “occupational overuse syndrome” as well as ischaemic heart disease and that, at that stage, a proposed keyboard rehabilitation program was not appropriate. He found no synovitis on examination. [17] A medical certificate issued by Dr Smyth on 19 May 1998 recorded the initial diagnosis of traumatic tenosynovitis left wrist and a present diagnosis of occupational overuse syndrome. [18] On 4 March 1998 the Corporation wrote to Dr Chiu. After commenting that it is understood Dr Chiu had recently viewed Ms Smith in regards to current effects of injury recorded as occupation overuse syndrome, the following questions were asked: 4 “1. To what extent is current incapacity still due to the tenosynovitis of both wrists caused by employment in August 1996? 2. What extent of current incapacity is due to “other factors”. 3. For what condition is Ann currently being prescribed Minocycline? 4. What medical evidence is there that “other factors” have a causative link to employment with the Bank of New Zealand. 5. Can you please give guidance in timing for next steps in rehabilitation, treatment and vocational rehabilitation?” [19] In answering Dr Chiu stated (by letter of 12 August 1998): “1. I have never found or offered an alternative explanation for her incapacity than that I have described. 2. There are thus no other factors. 3. In my letter of 17 November 1997, I wrote to Dr Smyth suggesting a trial of Minocycline for her chronic fatigue. Chronic fatigue is often seen in fibromyalgia and some forms of occupational overuse syndrome. Minocycline may also have a beneficial effect in atheroscloerotic heart disease. 4. Again there are no other factors. 5. In my letter of 12 September 1996, I suggested she start some relaxation training. I pointed out in my letter of 14 May 1998 that this had yet to happen.” [20] On 25 May 1998 the respondent issued a rating debit notice for the 1997/1998 year. The employer submitted an application for review of this decision but it was out of time and was not pursued. [21] On 24 August 1999 an experience rating debit note was issued for the 1998/1999 year. An application for review of this decision was filed on 17 November 1999. The grounds for review stated that There is insufficient evidence that this claim is a qualifying claim for experience rating purposes; and that ongoing claim costs are qualifying costs for experience rating purposes. [22] The appellant sought removal of costs associated with this claim for experience rating purposes. Relevant Law [23] Section 457 of the Accident Insurance Act 1998 stipulates that matters relating to experience rating up to 1 July 1999 be considered under the provisions of (VII) of the Accident Rehabilitation and Compensation Insurance Act 1992. The relevant sections are 89(4) providing a right of review and 104 allowing the respondent to experience rate employers. The methodology is that employers annually pay a basic 5 premium to the Corporation calculated on the accident risk for their industry. At the end of each financial year the actual cost of workplace accidents for each employer is calculated. This results in either a discount or loading to the basic premium so that there is a financial incentive for employers to reduce the frequency and cost of workplace accidents. The Accident Rehabilitation and Compensation Insurance (the experience rating) Regulations 1993 include the calculations of experience rating and various definitions such as “qualifying claim” and “qualifying payment”. The Decision of the Review Officer [24] Further to my reference to the Review Officer’s decision above, I note that he considered extensive submissions made to him on behalf of the appellant. While he accepted that if there was no evidence of physical injury (as required by Section 4 of the Act) there could be no cover, he considered that there was evidence of physical injury from the medical documentation. He referred to the reports and certificates issued by Drs Farrar and Smyth both diagnosing traumatic tenosynovitis, and the agreement of Dr Chiu with that diagnosis (which was contested by the employer). He rejected a submission that the respondent had failed to properly investigate the Section 7 criteria. He stated, that this would normally require a specialist medical comment. He concluded that this had occurred through the reports obtained by Dr Chiu. He again referred to Dr Chiu’s report of August 1998 diagnosing OOS and that there are no factors involved other than Ms Smith’s work tasks. He also noted the assessment of the case by the respondent’s medical advisor who concluded that the criteria of Section 7 were met. The Submissions for the Appellant [25] I am appreciative of Mr Bennie’s clear and helpful submissions with much reference to relevant case law. [26] In terms of Judge Ongley’s decision in South Pacific Tyres Ltd (5/97), Mr Bennie submitted that the respondent has not discharged its onus to make reasonable investigations to establish both the existence of personal injury in terms of s 4 of the 1992 Act and to properly consider the tests imposed by Section 7 of that Act. He submitted that there is no evidence of personal injury acceptable in terms of the legislation and respondent’s policy, and that the respondent has not ensured that the statutory requirement of s 4 is met. He referred to the respondent having written to medical practitioners in mid 1996 advising that OOS is not a valid diagnosis. Mr Bennie noted that is the diagnosis stated by Dr Chiu, a specialist rheumatologist, in all of his reports for this case. [27] Mr Bennie refers to the M46 claim form, dated 23 March 1993, diagnosing traumatic tenosynovitis of the left wrist and attributing this to using a keyboard. He refers to objective clinical findings being required to diagnose tendonitis or tenosynovitis. He submits that it is a nonsense to use the term traumatic in association with a gradual process keyboarding injury and that, if keyboarding were the cause, then the condition suffered by Ms Smith would be bilateral and not confined to the left wrist. He submitted that it is more likely that Ms Smith had benign localised wrist pain, rather than true tenosynovitis/tendonitis and that there is no evidence that office work such as keyboard work, including data entry and handwriting, can cause those. 6 [28] Mr Bennie submitted that Dr Chiu did not share the diagnosis of tenosynovitis when he examined Ms Smith in February of 1998, and noted no clinical findings indicative of personal injury despite a continuum of symptoms, and his reports clearly state that on examination there was no synovitis. [29] Accordingly, Mr Bennie again submitted that the respondent Corporation has not sufficiently investigated this claim to establish that personal injury has been suffered. [30] Mr Bennie then addressed the effect of Section 7 of the Act on this case. He submitted that it appears that the respondent and the Review Officer relied on the completion of gradual process questionnaires as the only support required for the respondents work injury determination in this case and that there is no evidence of the respondent having sought appropriate occupational specialist medical comment as to s 7(1)(a), the causative property or characteristic, and the “negative test” of Section 7(1)(b). Mr Bennie referred to a number of case authorities and particularly to the High Court decision (Panckhurst J) J B D B (121/98) where Panckhurst J stated that the onus on the claimant is a particularly heavy one and that compensation was only for clear cases; and unless there was a known and significant risk to a person performing the task, the case would not be recognised, and the Court must apply the test strictly. [31] Mr Bennie submitted that the respondent in this case did not obtain expert opinion as to the particular causative property or characteristic of the work, and nor has expert opinion as to the test of s 7(1)(c) been obtained. [32] He submitted that the Corporation has failed to discharge its onus to undertake reasonable investigations before making a work injury determination, and that the review was reasonably brought by the appellant and that an award for costs should have been made. [33] He submits that the status of this case as a qualifying claim has not been established and that each of the three grounds for interfering with the respondent’s exercise of such a discretionary power are met. He had earlier referred to Whitianga Excavators Ltd (192/99) where Judge Beattie affirmed the view expressed in earlier case law that the exercise of experience rating was a discretionary power and he outlined the principal grounds for interfering with that as follows: 1. Where the exercise of the discretion is done on a wrong principle and has ignored or misapplied the principle laid down in the statute or identified by earlier Court decisions. 2. Where the exercise of the power of discretion has failed to take into account relevant considerations or, conversely, took into account irrelevant considerations. 3. Where the decision-maker has plainly made a wrong decision. Such a decision would need to be shown to be so aberrant that no reasonable person could have reached it. This latter ground has now been taken to include a finding where the decision was improper, unjust, or wrong. 7 [34] In this case, the appellant has focused on the points that the need for reasonable investigation has been ignored or misapplied; that expert opinion was not obtained; and that the decision of the respondent Corporation was plainly wrong; so that there are grounds for me to interfere with the Corporation’s decision. [35] Mr Bennie sought that the respondent’s experience rating decision be revoked and replaced by one which excludes the costs associated with Ms Smith’s claim, and with an order for costs in line with the review costs and appeals regulations. Reasons for Decision [36] Because I agree, broadly, with the submissions of Mr Hunt for the respondent, I have not summarised them separately but substantially incorporate them below in my reasons for decision. [37] Whether and in what circumstances a Court will interfere with the manner the respondent has exercised its discretion has been considered in a series of decisions including Waipa District Council (199/97), Whitianga Excavators Ltd (192/99), Alstom NZ Ltd (26/00) and Horizon Printing and Packaging Ltd. As indicated above, Mr Bennie covered these in his submissions. [38] As with the case in Horizon Printing and Packaging Ltd, the starting point must be that Ms Smith’s claim was a qualifying claim in accordance with the Act and regulations. The appellant cannot ask to have this Court review the respondent’s decision which concluded that Ms Smith’s claim was for a work injury. This Court must proceed on the basis that all payments made on that qualifying claim are qualifying payments within the meaning of the regulations – refer also, Cadbury Confectionery Ltd (207/98). [39] However, there can be no doubt that Ms Smith sustained personal injury in 1996. The diagnosis of traumatic tenosynovitis is clear and specific from the medical evidence. It is backed up with the description of symptoms provided by Ms Smith herself. It was not challenged in the initial responses provided by the appellant to the Corporation when it was considering whether the claim should be accepted under Section 7 of the Act. [40] Dr Farrar’s diagnosis is a clinical finding, and there is sufficient material to show that it was a tenable diagnosis on the presentation of Ms Smith. Mr Bennie’s claim that “statistically, it is far more likely that Ms Smith had benign localised wrist pain, rather than true tenosynovitis/tendinitis” is an unsupported submission which overlooks the question at issue – whether, in its discretion, the respondent breached the principles referred to above. Also, his submissions that there is no evidence that keyboarding work causes tenosynovitis and that, if it did, Ms Smith’s condition would be bilateral and not confined to the left wrist is unsubstantiated assertion which, to me, ignores common sense. [41] It was emphasised for the appellant that OOS is not a clinical entity, but an umbrella term. In any event, while OOS may have been used as a generic term by Dr Chiu, this is not necessarily inconsistent with the more specific diagnosis of tenosynovitis. 8 [42] With respect to Section 7, the appellant submits that there is a “paucity of hard fact available from that time [the time the claim for cover was made], insufficient to draw conclusions as to the tests imposed by Section 7(1)”. That submission flies in the face of not only the medical reports provided at the time, but also the employer’s response to the GP3 questionnaire and the claimant’s own detailed explanation of the injury and the causes, as she saw it, of that injury. Also, this is not a situation where the respondent has sought only to rely upon the views expressed by the employer in the GP3 questionnaire. [43] The submission that the Corporation did not seek any appropriate medical opinion is unsupported when the documents on file are reviewed. Specialist opinion was sought from Dr Chiu, and it is evident that he agreed with the original diagnosis of tenosynovitis and the fact that this had arisen from work-related tasks. He confirmed the certifications provided by Drs Farrar and Smyth and by the insurer’s branch medical advisor. [44] I am satisfied that a personal injury was experienced by Ms Smith in the workplace and that the respondent investigated it properly and adequately. The respondent exercised its discretion correctly based on clear evidence on the facts of the case. Certainly, it has not been demonstrated by the appellant that the respondent’s granting of cover was plainly wrong. In my view, the respondent Corporation exercised its discretion sensibly. The respondent correctly applied the law and took into account relevant considerations and did not consider irrelevant matters. The burden of proof has not been discharged by the appellant and has, most certainly, not shifted to the respondent Corporation. [45] The appellant has not established that the respondent failed to properly exercise the discretion reposed in it pursuant to Section 104 of the Act. [46] In any case, when I consider the evidence overall, I find there to be personal injury arising out of Ms Smith’s said work for the appellant and caused by gradual process in terms of s 7 of the Act. Her work had the characteristic of intense keyboarding which, in the balance of probability, caused or contributed to her condition by gradual process. Her non-employment activities have not affected her condition to any marked extent. Her work duties, based on intense keyboarding, placed her at a significantly greater risk of suffering personal injury than persons not performing her tasks in her said work environment. [47] For the above reasons, this appeal is hereby dismissed. _____________________________ Judge P F Barber Accident Compensation Appeal Authority District Court Judge Wellington 9 bnz.rl