Teen v Accident Compensation Corporation and Telecom New Zealand Limited

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 139/2003 UNDER the Accident Rehabilitation & Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act in decision number 244/2002 BETWEEN BARBARA TEEN of Christchurch Appellant (Appeal No. DCA 99/99) AND ACCIDENT COMPENSATION CORPORATION First Respondent AND TELECOM NEW ZEALAND LIMITED Second Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M.J. Beattie issued on 3 September 2002. [2] The issue in that appeal was whether the first respondent was correct in its June 1998 decision, wherein it revoked cover for the appellant, which had been granted to her on 29 October 1996 for a gradual process injury to her right shoulder arising from her employment with the second respondent. [3] The relevant factual background is set out in paragraph 3 of His Honour’s decision, the relevant extract being as follows: https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/139- 2003.doc AE “The relevant background facts in this appeal are not in dispute and may be stated as follows: • In March 1996 the appellant, then aged 47 years, commenced employment with Telecom as a Credit Service Representative. • Her duties involved use of telephone and computer, including data input using a keyboard. • On 1 October 1996 the appellant consulted her GP, Dr O’Connor complaining of pain in her neck, shoulders, back and arms and the appellant and Dr O’Connor completed an ACC claim form at that time. • The ARC18 Claim Form gave as the diagnosis of injury ‘possible OOS of R shoulder, arm, back, neck, L neck and upper arm’. The date of the injury was said to be 29 July 1996. • The appellant was certified as unfit for work and the form noted that she was to see Dr W Turner. • CRM as agent for Telecom, an Accredited Employer, received the claim and thereupon sent out gradual process questionnaires to the appellant, her medical practitioner and her employer. • The claimant questionnaire completed by the appellant stated that her condition was sore neck, shoulders, back, arms. The appellant went on to state that she was not sure how this condition developed but possibly the way I use a particular function. She said that she first noticed her condition in July and although advising of her previous employment stated that she had not suffered from a similar condition in the past. • The medical practitioner questionnaire was completed by Dr Ross Fountain, of the Medical Practice at which the appellant attended. He gave as his diagnosis OOS ESP of rhomboids and R supra spinature extending in R shoulder and down arm. Dr Fountain stated that the cause of the condition was working as a computer operator with mouse, changed mouse to left hand usage no improvement. • In the Employer Questionnaire it ticked yes to the question whether it considered the injury to be work related and noted that the appellant had first complained about the condition in July. • By letter dated 29 October 1996 CRM advised the appellant, inter alia ‘I have considered your application for cover which was submitted by your doctor on your behalf. The injury that you received on 7/10/96 has been accepted for cover. This means that you are covered under the Accident Rehabilitation & Compensation Insurance Act 1992’ • The appellant was seen by Dr W E D Turner, Specialist in Occupational Medicine, on 4 November 1996 and he reported to the second respondent. It was Dr Turner’s opinion that the cause of the appellant’s condition was her work environment in respect of her long repetitive mouse and key board use with the adoption of constrained statically loaded postures inducing tension and lactic acid overload in the muscles. Dr Turner then went on to advise on further management of the appellant’s condition and of her work place. 139-2003 2 • A work place assessment was undertaken on 22 January 1997 and certain modifications were recommended. The appellant was seen again by Dr Turner following that work place assessment and he made a further report to CRM on a return to work programme for the appellant. • The appellant continued in her employment at Telecom until September 1997 when her condition caused her to be certified as unfit again and she began to receive weekly compensation. • In early 1998 CRM sought specialist opinion from Dr John Alchin, Specialist Occupational Physician and Professor Des Gorman, Head of Occupational Medicine at the Faculty of Medicine, Auckland University. • On receipt of reports from Dr Alchin and Professor Gorman, CRM advised the appellant by letter dated 5 June 1998 that on the basis of advice it had received her claim was not acceptable under the Act as there was no demonstrated personal injury, that the claim did not satisfy the criteria of section 7 of the Act and that therefore her cover was being cancelled and entitlements withdrawn. • The appellant sought a review of that decision and a review hearing took place on 8 February 1999. For the purposes of that review, the appellant introduced a report from Dr R D Wigley, Consultant Rheumatologist who had examined the appellant on 30 July 1998 and whose advice and opinion disagreed with that of Dr Alchin, Dr Turner and Professor Gorman. The review hearing also received further evidence from Dr Alchin, Dr Turner and Professor Gorman. • In his decision dated 1 March 1999 the Reviewer found on the evidence that the appellant had not suffered a physical injury within the meaning of the Act and therefore could not satisfy the criteria required of section 7 of the Act and he therefore confirmed CRM’s decision to revoke cover and cancel entitlements.” [4] His Honour then at paragraphs 5-6 (pages 4-17) summarised the medical reports, from Dr WED Turner (4 November 1996, 23 January 1997, and 18 February 1997), Dr J Alchin (10 February 1998); Professor Des Gorman (9 March 1998); Dr J Alchin (21 May 1998); Dr RD Wigley (30 July 1998); Dr R Fountain (14 August 1998). The Court also summarised (pages 11-17), the views expressed by the various specialists as to the nature of fibromyalgia and its causes. [5] After considering these reports, the Court summarised the submissions of counsel, including the summary of the submissions for the appellant as to whether or not a chronic pain syndrome involved physical changes, such as would constitute physical injury for the purposes of the Act. This was a predominant issue before the Court. [6] I set out hereunder extracts from paragraph 6 of the first respondent’s submissions in relation to the application for leave to appeal: 139-2003 3 “6.3 Having regard to the evidence of the medical practitioners who examined the Appellant at or about the time she lodged her claim, the Appellant displayed no physical injury in the accepted sense of the word, but displayed symptoms of pain at various points on her upper body. There was no discrete physical injury such as inflammation of tendons, sprain or evidence of physical strain (para 19). 6.4 This case required a consideration of whether regional pain syndrome, chronic pain syndrome, or fibromyalgia, could amount to personal injury – to be distinguished from those cases where those conditions are a follow on consequence of a physical injury (paras 20 and 21). 6.5 The condition about which evidence had been given in depth in this case involved a disordering of the nervous system in some unknown way, which may involve the death of cells or tissue, but the nature of it was not in the way of damage to the nervous system; here the nervous system was still in situ, but for some unexplained but nevertheless complicated reason, it was not sending the right messages (paras 23-25). 6.6 There was a heavy psychological emphasis in the creation of and continuation of the condition, and non physical stressors were considered to play a major part (para 26, and 28). 6.7 In the final analysis, therefore, the Appellant did not suffer a personal injury; she suffered harm, but the Act limited compensability to physical injury, and to such having been caused by a particular property or characteristic of a work task – neither of which existed here (para 29). 6.8 Dealing with Dr Wigley’s views, the changes (described at para 33), were not such as to constitute a physical injury. 6.9 The Appellant could not satisfy the requirements of s.7(1)(a) which requires a causative link between workplace characteristics, and the physical injury suffered. Further, fibromyalgia, being non physical stress, was itself excluded by s.7(4), even if the causal connection could be demonstrated (para 38).” [7] The appellant submits that there is a legal issue in this case as to the meaning of the words “physical injuries” any “personal injury” as defined by the legislation. The submission is that the phrase “physical injuries” is not simply a medical question of fact, but a question of law on the meaning of the words in the statute. The appellant submits that incapacitating pain may fall within the definition of personal injury. [8] I re-state the approach to the issue for leave to appeal as set out by Doogue J in Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation and Stewart Burns (High Court, Wellington, AP 266/00, 6 July 2001). His Honour said that before special leave to appeal was granted there had to be a point involved in the proposed appeal. This point had to be capable of 139-2003 4 bona fide and serious argument. His Honour then went on and considered what was a point of law: “What is a point of law? [5] Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards v Bairstow [1995] 3 All ER 48, 57; P & O Services (NZ) Ltd v ARCIC. [6] Even where, as in this case, an appeal is limited to questions of law, a mixed question of law and fact is assailable as a matter of law: CIR v Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6. [7] It is well settled that a decision-maker’s treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow, 57. [8] The Court of Appeal in Lang v Eagle Airways Ltd [1996] 1 ERNZ 574, 576, cited Edwards v Bairstow in support of the following statement: If those conclusions were not reasonably open to the Judge then this Court can rule, as a matter of law, that they are unsustainable and should be set aside … [9] Whether or not particular evidence is relevant to a particular issue is a question of law: Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641, 651-652.” Conclusion [9] In my view there is no point of law that may be stated in respect to the proposed appeal. His Honour Judge Beattie made a decision based upon the facts and after a consideration of the relevant medical evidence that was tendered to him. As he said at p.24 of his decision: “[36] The situation as I find it therefore is that the appellant was not entitled to cover under the Act for the condition that she presented, firstly to her GP and then to Dr Turner, as it did not have the basic requirement of being a personal injury, that is a physical injury. Furthermore, her condition could not be said to have been the consequence of or the progression from a physical injury, which might have allowed her to obtain cover under one of the recognised precursors of the fibromyalgic condition namely a discrete physical injury. [37] Having found as I have, it is not necessary to consider whether the appellant could satisfy the requirements of section 7 (1) (a) (b) (c) but it must be clear from the finding that I have made that the appellant could not satisfy the requirements of section 7 (1) (a) which requires a causative link between work place characteristics and the physical injury suffered. 139-2003 5 [38] Whilst the work place may have contained stressors which may well have impinged on the appellant’s well being and may have been part of the ‘mix’ or factors which caused her to suffer the pain disorder which was a myofascial pain syndrome and which became fibromyalgia, that connection, being non-physical stress, is itself excluded by section 7 (4) of the Act even if the causal connection were to be demonstrated, a circumstance which I find on the expert evidence cannot be sustained to the necessary degree of probability. [39] It follows therefore that on the particular facts of this appellant’s case and her medical condition as it presented at the time she made her claim for cover, she did not have a right to cover under the Act and the first respondent’s decision to subsequently revoke her cover was correct.” [10] This was a case that was determined on its own particular facts, and the Judge assessed those facts against the medical evidence. I accept that there are differing medical opinions concerning the issues confronting His Honour. His Honour was called upon to decide, after considering the factual background, which medical opinion he preferred against the onus of proof. I cannot identify any relevant issue of law arising in this case: I can identify, however, differing medical opinions. I do not see that a question of law is involved, and I decline to grant leave to appeal. There will be no order as to costs. DATED at … WELLINGTON…. this 27th. day of June 2003 (J. Cadenhead) District Court Judge 139-2003 6