Baycorp Holdings Limited v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 298 / 99 IN THE DISTRICT COURT DCA No. 195/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN BAYCORP HOLDINGS LIMITED Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Auckland: 7 September laq9 Date of Judgment: 26 October 1999 Counsel: RESERVED JUDGMENT OF JUDGE G.V. HUBBLE The claimant, Mrs Swan, undertook employment involving mainly keyboard activities since she was 17 years of age. Since her date of birth is December 1958, and assuming that she was working in this capacity since 1976, it appears therefore that she has been working for some 16 years as a keyboard operator, or in similar activities, before joining Sealords, and at the same time, Baynet in September 1992. She worked very long hours at Sealords carrying out two distinct jobs. One [I:JUDICIAL\Hubblej\Baycorp.doc jab] 2. involved data entry, which also involved keyboard use and the loading of 20 pound computer disks. She did this for four hours per day from 10.00 a.m. to 2.00 p.m. She then operated a cleaning hose and did general cleaning for Sealords for five days a week from 2.00 a.m. to 7.00 a.m. At the same time she working for Baynet as a search clerk. In this role she worked for approximately two hours and carried out a number of clerical duties. In July 1993, she lodged a claim for cover for a wrist injury, and in her M16 application, she described the injury as "worked as keyboard operator for ten years and have over the last six months developed pain, swelling, numbness in my right hand". She was diagnosed by Dr Riley as having bicarpal tunnel syndrome (BCT) and was accordingly asked to complete a gradual process questionnaire in which she described her employment as "computer operator since last September - Sealords (41/2 hours) five days per week plus night cleaner Sealord five hours five days per week plus Baycorp company search writing (2 hours daily). She attributed her injury to data entry plus disc loading (being required to lift discs weighing 20 pounds). She reported some of her former employers as Data Bank Systems, Nelson (now extinct) 1986-1991, Land Transfer Office, Nelson 1991-1992. One Jan Bonner completed the employer questionnaire for Sealords on 11 August 1993. This acknowledged that the injury was work related with the following statement:- "Work related. Was lifting heavy discs (computer) 21.12.92, 8.07 p.m. when felt ping in her right wrist." 3 . Her claim was accepted on 30 August 1993, and she then received various benefits and weekly compensation under the Act from September 1993 to August 1998. The Corporation did not advise Baynet of their decision to award compensation, but Sealord had acknowledged that the original injury was work related. In March 1997, Sealords through their consultant, Mr Ross Harland, sought information from the Corporation as to whether it had issued a decision with regard to apportionment of Mrs Swan's claim under s.7(7) of the Act. The Corporation's response to this was to ensure that Sealord were alone responsible by setting aside their original decision based on gradual process injury, and making the finding that Mrs Swan's condition was a result of a direct causative injury arising from a single incident, namely, that on the evening of 21 December 1992, she was lifting one of the heavy discs and her wrist "pinged". Sealords sought to review this decision, and did so successfully. The Review Officer again reversed the decision by a decision dated 5 December 1997. The result was that the original finding of gradual process injury under s.7 was reinstated, and therefore the Corporation then had to make a decision concerning apportionment under s.7(7). No doubt with the prompting of Sealords, the Corporation then issued a decision dated 7 September 1998, apportioning the claim between Sealords and Baynet, and not surprisingly Baynet applied to review this decision under s.7(7) 4. because they had not been given the opportunity to take any part in the decision making process in the previous five years. There was no attempt at any independent enquiry into Baynet's work place situation and ergonomitrics. As far as they were concerned the entire decision making process was based on a one line statement by Mrs Swan in 1993 that she worked for Baynet for two hours and was engaged in hand writing. Prior to the hearing of the review, a report was obtained by the Corporation from a rheumatologist, Dr Paul Trolove. He had diagnosed Mrs Swan as having widespread myalgia indicating a chronic pain syndrome rather than carpal tunnel syndrome. It is noteworthy that he observed that Mrs Swan's original injury (apparently following surgery) settled down and she worked quite normally for a time, but there was a gradual onset of more chronic pain developing into his diagnosed chronic pain syndrome, or more commonly known today as fibromyalgia syndrome (FMS). He then comments as follows:- "3 - Gradual Process Injury: As mentioned, I believe the gradual process injury has been significant and in my history outline above I have indicated the various tasks she was required to undertake. Handwriting is well known to cause such problems, but I am also suspicious of the development in part by the high pressure hose she was required to use in cleaning. This requires a heavy grip. The nature of her computer work at Sealords is compatible but I think the repetitive element is more troublesome than the lifting. However, the nature of the lift from floor level with her elbow flexed and the weight held in this position is awkward. Since the age of 17 years she has spent a great deal of time working in keyboard activities and I feel that these are partly responsible for the problem but it is hard to be specific as to which jobs. Your specific comments regarding the work at Baynet are probably answered above, ie I believe handwriting can be a problem but this needs to be taken along with the apparently poor ergonomic setup with which she was working while at Sealords over the same period of time. 4 - The major characteristics of the worktasks have been those of repetitive writing, keyboard activity in compromised ergonomic setup while working at Sealords, and the heavy hose holding required in her cleaning job." 5. I am aware from a number of other reported decisions I have read that there is a sharp distinction between the condition known as FMS and injuries which are generally accepted to have been caused by a gradual process work place injury, and clinically identifiable. In February 1998, a meeting of approximately 20 leading neurologists, occupational medical experts and rheumatologists attended a conference in Wellington in an endeavour to reach some consensus as to the cause of FMS. Although it may not be strictly relevant to this appeal, it is interesting to observe that almost without exception, the experts present were of the view that they could not specify a particular cause of FMS, that stress related and psychological issues were almost certainly contributory, and (with the exception of Dr Wigley) that work related activities could not be established as a probable cause. There is also a strong body of medical opinion in support of the view that carpal tunnel syndrome is not one of the conditions produced by repetitive work. However, in relation to the latter, it is equally true to say that many medical experts do consider (as Dr Trolove does) that repetitive hand movements can be a causative element in the CTS. What does appear clear however, is that there is no proof whatever that repetitive work related activities produce FMS, which is the condition currently being suffered by Mrs Swan, the effects of carpal tunnel syndrome having long since disappeared. The issues on the present appeal however, are restricted to the following questions:- 6 . (a) Has the Review Officer correctly held that the Corporation discharged the onus of proof required under s.7(1) being to demonstrate that the nature of the claimant's work at Baynet CRA Limited (Baynet) caused or contributed to her gradual process injury?; and (b) In the event that it did cause or contribute, whether the Review Officer has correctly determined not to apportion the claim between a wider range of the employers? As already mentioned, the decision as it stands is based upon a statement by Mrs Swan that she worked for Baynet two hours a day, five days a week and was engaged in "hand writing". It is then based on Dr Trolove's statement that "hand writing is well known to cause such problems (though it is not clear whether this relates to carpal tunnel syndrome or FMS). Sealord are in a different category as they acknowledged a work related injury, whereas Baynet were not given the opportunity of exercising a fundamental right to be heard at a time when all information is fresh and available. Even if it is accepted that hand writing can lead to the "injury", to be a significant contributing factor or even a contributing factor at all, it is essential to establish the context of that hand writing in the particular work place. Judging from the letter from Ms Rowley (who is at a disadvantage of attempting to recall a situation five years earlier) it was not accepted that Mrs Swan had to write solidly for two hours. She 7 . also carried out numerous other clerical activities, and the writing she did do was interspersed with pauses. Mrs Swan assumes a burden of proving that it is more probable than not that the particular nature of the hand writing carried out in this case contributed to the injury. No useful conclusion could possibly be drawn unless full details are available upon which a judgment can be passed. In South Pacific Tyres Limited v ARCIC, 1 BACR 331, Judge Ongley made it clear that if a Review Officer reaches a decision on the basis of adequate evidence and a correct view of the law, the employer will have to persuade the Court to reverse the decision on appeal. In the present case, the decision reached by the Review Officer is in my judgment not based on adequate evidence, nor in my judgment would it be just to attempt a reassessment of a factual situation pertaining some five years ago. The proper opportunity to exercise s.7(7) was in 1993 or at the latest 1994. The appellant has been deprived of its fundamental right to be heard at that time, and acceptable evidence currently relied upon to establish a causal connection under s.7 is wholly lacking. The decision of the Review Officer is accordingly quashed. If any issue of costs arises, counsel can file memoranda. If it was necessary to consider whether the net should have been cast more widely under s.7(7), it is my view that where prior employees afforded the claimant the same kind of work (keyboard) it is difficult 8. to escape the need for them to contribute also, but again in relation to those parties the lapse of time may have unduly prejudiced them. (G.V. Hubbley District Court Judge