Kamaru v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 236 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRENT MILTON KAMARU of Westport Appellant (Appeal No. DCA 238/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 22nd day of October 1998 APPEARANCES J Daley for the appellant K Tahana for the respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover for a work injury caused by gradual process within the meaning of s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant lodged a claim with the respondent on 23 October 1996 in which he stated that he suffered pain in his left wrist and shoulder in the course of his work as a plasterer. The appellant completed a gradual process questionnaire in which he said that his work as a plasterer caused the condition to develop. He said that he had been working in the job for some three to four months, eight hours per day, five days 2 per week and sometimes more. He claimed to have first noticed the pain and swelling at the end of September 1996 and that the condition improved with time off work. The respondent arranged for the appellant's employer with whom he had been working since 31 July 1996 to complete a work injury report. The questionnaire indicated that the appellant had worked from 31 July 1996 to 23 October 1996 for some 30 to 40 hours per week jib stopping and general labouring. The employer did not consider the injury to be related to employment tasks as he considered the appellant suffered the condition before he started work for him. On 13 December 1996 the appellant's general practitioner advised that the appellant was suffering a very painful wrist and shoulder which had become progressively worse while working as a plasterer. He gave as his prognosis that it was probably overuse strain and that the x-ray suggested a probable avascular necrosis of one wrist bone. His doctor raised the possibility that the appellant had suffered a previous trauma to the wrist but that the appellant was not aware of any previous trauma. The Corporation's medical advisor, Dr Sinclair, noted a bony abnormality in the left wrist which he considered could be related to an old fracture or could have occurred for medical reasons. The appellant was then referred to Mr Fowler, an orthopaedic surgeon for his opinion. In a report dated 1 April 1997 Mr Fowler stated: "Mr Kamaru's diagnosis is one of Kienboeck's disease (avascular necrosis lunate bone) left wrist. The prognosis for this condition is not good and if often leads to osteoarthritis in the wrist. He has worked as a plasterer intermittently before going to prison and first told me that he had moderate wrist discomfort when he started to play the guitar while in prison. Upon his release he resumed work as a plasterer and after about two months developed quite severe pain in his wrist. This reached a stage where he was unable to continue working. Radiographs taken in October 1996 showed very early changes in the lunate bone and further x-rays taken in November confirmed the changes. I have repeated films today which shows that he has in fact got avascular necrosis of the lunate bone. The cause of this condition is unknown however it has been associated with fractures but the majority of people with this condition do not have any significant history of trauma. Some people believe that it is associated with particular compressive stresses in a lunate bone which is particularly susceptible to this. It is very difficult to find a cause and effect as a result of his occupation however there is no question that his occupation has certainly exacerbated his symptoms. He will be unable to continue his work as a plasterer or in fact any heavy physical work with his left wrist in the near future." When that report was received the respondent notified the appellant on 24 April 1997 that his claim for cover under s.7 had been declined as his work had exacerbated an underlying condition but not caused it. The appellant applied for a review of that decision. 3 The respondent sought further information from Mr Fowler who replied on 30 May 1997 as follows: "I do not believe that Mr Kamaru's problem is associated with any fracture. He informed me that he had some discomfort in his left wrist initially noting it while in prison playing the guitar without any history of trauma. There is no question that his work as a plasterer when he got out of prison certainly exacerbated his problem however it is very likely that his condition existed prior to him returning to plastering. The first x-ray that I am aware of was taken in October 1996 which showed the changes of Kienboeck's disease at that point. I cannot say from the x-ray how long he had this condition however it would have pre existed for some months at the very least. I am unable to say whether or not this condition is due to his work as a plasterer as the cause of it is not fully understood. Some people acknowledge that compressive stresses which may in fact occur in his work as a plasterer can contribute to this condition. Mr Kamaru informed me that his initial symptoms occurred however when he was in prison. He did not give any history of becoming symptomatic prior to this. While this is one of these cases where an actual cause and effect is very difficult to determine I can only reiterate that compressive stresses such as with plastering may play a factor in Kienboeck's disease however it is not possible to establish a direct link with his work as a plasterer. There is no question however that his plastering work will certainly exacerbate his symptoms." The appellant gave evidence before the review officer in which he was questioned about his work history and the first onset of the pain. It is clear from the transcript of the evidence that between 1989 and 1992 the appellant was working in the construction industry and particularly on jib stopping and plastering. When questioned at the review hearing he said that while he had told Mr Fowler that he first became aware of the pain in his wrist while playing the guitar in prison between 1992 and 1995 he had had problems with it prior to going to prison, but merely assumed that the aching in the wrist which he got after work was something associated with the work which went away with rest and he really gave it no more thought. He said that when he was in prison with nothing better to do he had then concentrated on his guitar playing which tended to bring on the pain in the wrist. After his release from prison in 1996 he returned to plastering for about eight months when again he was involved in jib stopping and plastering until he had to give up because of the shoulder and wrist problems. The review officer considered that he should be bound by the opinion of Mr Fowler who had identified Kienboeck's disease of the left wrist. The review officer noted that Mr Fowler indicated that the cause of this condition was unknown but it had been associated with fractures although it could occur without any significant history of trauma. As Mr Fowler was unable to say whether or not the condition was due to his work as a plasterer and the cause was not fully understood the review officer declined the application. It is against that decision which the appellant now appeals. At the appeal hearing the appellant was given leave to adduce further evidence by way of a report from Professor Bill Glass, a specialist in occupational medicine. 4 Professor Glass examined the appellant and provided his report which is dated 9 September 1998 in which he reviewed Mr Fowler's reports and in which he stated: "In this report Mr Fowler noted a diagnosis of Kienboeck's disease (an avascular necrosis of the lunate bone in the left wrist). He notes the outlook is not good and osteoarthritis may develop. An x-ray in 1996 (October) showed early changes, a repeat x-ray in 1997 confirmed the diagnosis. Mr Fowler noted the cause is unknown but that it has been associated with fractures and, on occasions, with compressive trauma. Mr Fowler does not see Brent's work as causative but rather providing an exacerbation of his symptoms and notes he cannot continue to work as a plasterer or any heavy physical work in the near future. He finally notes that he is referring Brent to Ian Penny. 30.05.1997 TO ACC In this further letter to ACC Mr Fowler reiterates his early opinion and notes that compressive stresses which may in fact occur in his work as a plasterer can contribute to this condition'. This point he further emphasises when he concludes 'I can only reiterate that compressive stresses such as with plastering may play a factor in Kienboeck's disease, however, it is not possible to establish a direct link with his work as a plasterer' KIENBOECK'S DISEASE In a review of Kienboeck's disease there are a number of points to note: 1. It is uncommon and was first described in 1910. 2 . It occurs mainly in young active adults (30 - 40 years of age). 3. It is most common in the dominant hand. 4. It develops insidiously. 5 . It can be caused by trauma, either repeated minimal trauma or a single traumatic injury leading to a fracture. 6. The result of this trauma is to cause a devascularisation of the lunate bone. 7. It is seen in activity which leads to repeated impact and can occur associated with certain sporting activities such as volleyball, martial arts as well as manual labour. It can also result from compressive and shearing forces associated with negative ulnar variance. DISCUSSION Brent first noticed some discomfort in his left wrist prior to his time in prison and while he was working as a plasterer. However, it was not until he took up the guitar while in prison that the ache became more persistent and he had to modify his guitar technique and reduce his playing. When he returned to plastering work in 1996 the pain recurred and became quite severe after about six months with a history as already noted. 5 The features of Kienboeck's disease have been outlined indicating the role of trauma with mechanical shearing and compressive forces and the occasional role of anatomical abnormality which can result in similar forces, ie ulnar variance. I have outlined the wrist actions associated with plastering, the wrist pressure required, the repeated flexion and extension and rotation of the wrist. It is clear from such activity that shearing and compressive forces can result and in an individual with a tendency to develop this condition the work of a plasterer will trigger or exacerbate the disease." Mr Daley submitted that it is clear from the evidence given before the review officer that the appellant was working as a jib stopper before going to prison and that he did suffer pain in his wrist prior to his imprisonment and that his answer to Mr Fowler that his first identification of the problem was while playing the guitar in prison was not correct. I agree with that. It seems to be clear from the evidence given at the review hearing that the problem had arisen prior to the appellant's imprisonment. Mr Daley submitted that evidence now before the Court indicated that the appellant satisfied all the tests required under s.7 and was entitled to cover under the Act Ms Tahana submitted that Professor Glass' finding in relation to the guitar playing was inconsistent with Mr Fowler's diagnosis that the disease had developed some months and not years before the appellant commenced plastering in 1996. I do not consider that there is any great inconsistency in the reports from the specialists. While Mr Fowler had mentioned that there had been no problem prior to the appellant starting plastering work in 1996, it is quite clear that he had had problems when plastering in the period prior to his imprisonment. On the basis of the medical evidence I consider that the guitar playing in prison only exacerbated what was already present in his wrist as a result of his earlier plastering work. This appears to be fully born out by Professor Glass' opinion. While neither specialist can give any particular cause for the onset of Kienboeck's disease, Professor Glass has provided some details from which it can be seen that an activity such as plastering is a likely cause for its onset. It certainly appears to be associated with repetitive type work. I consider that on the basis of the medical evidence, the nature of the work involved as a plasterer and jib stopper does have a particular property or characteristic which could cause or contribute to the type of problem suffered by the appellant. I have to accept Professor Glass' opinion that the guitar playing, which is the only non-work activity which may have contributed to the problem can do so to a much lesser extent and has no material impact on the appellant's condition. It does seem that having regard to the nature of the movements required in jib stopping in particular, it is an activity which would have a significantly greater risk for people performing that work than for people not doing so. I am satisfied on the basis of the medical evidence now available which was unfortunately not available to the review officer, that the conclusion reached by the 6 review officer was wrong and his decision will be revoked. The appeal is allowed and the appellant will be entitled to cover under s.7 of the Act. The file will be returned to the respondent to make the necessary assessments. There will be costs to the appellant of $850, together with the cost of Professor Glass' report. DATED at WELLINGTON this 13 day of November 1998 A W Middleton District Court Judge dca23897.doc(rd)