Palmer v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 344 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CAROL JEAN PALMER of Christchurch Appellant (Appeal No. DCA 411/98) 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 20th day of October 1999 APPEARANCES/COUNSEL M R Shepherd for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct in its decision letter of 24 April 1998 in which it advised the appellant that she would no longer receive entitlements under the Act because her then current condition was not the result of personal injury but was related to fibromyalgia. The appellant lodged a claim with the respondent on 24 August 1990 in respect of pain in her left shoulder and arm, her left being her dominant hand. Her general practitioner's diagnosis was "RSI relating to the left shoulder and arm". The date of accident was stated to be 19 March 1990. On 24 June 1991 Mr B L Krause, an 2 orthopaedic surgeon, provided a report for the respondent in relation to lump sum awards under the Accident Compensation Act 1982. However, he noted that the appellant had Mr Krause noted: 'Diffuse tenderness across the trapezius muscle on the left and extending up the paraspinal musculature of the neck. There is no tenderness in the occipital region of the head. There is some discomfort on the medial border of the scapula." And: "This type of case is difficult to find an absolute cause for, but with the type of work that she has been doing it is possible that it is related to this. It is her dominant hand and this is also consistent. Under this Section, because of the restriction of motion of her neck and shoulder I would assess her at 8% loss of function of the arm." The appellant had been working as an electronic assembler for a period of some five years at Harding Signals. Mr Krause also noted that the appellant had pain around the wrist which is more likely to be related to carpal tunnel syndrome rather than her shoulder neck condition. The appellant underwent a carpal tunnel release in August 1991. In a report in October 1991, Dr Rajapaksha specialist rheumatologist, stated: "This 43 year old ex electronic assembler presented with an 8 year old history of pain in the neck radiating down to the left hand. This has been gradually increasing with radiation extending from the neck to the arm as well as the left temple. The pain would gradually increase towards the end of the day making it very uncomfortable by evening. The pain gradually restricted her work and she has been unable to work for the past 12 months on account of this." And: "I think her problems are subjective and though there appears to be an impairment as detailed, the extent of the contribution from her occupation is difficult to establish firmly." When the appellant moved to Christchurch in 1992, she was examined by Dr P Chapman, the Rheumatology Registrar at Christchurch Public Hospital. The diagnosis was "1. Chronic pain; 2. Fibromyalgia; 3. Depression,". Dr Chapman considered the appellant's symptoms to be consistent with fibromyalgia. In September 1994 the appellant's general practitioner, Dr J C Elliott stated: "She still says she cannot do her usual occupation due to pain in the neck - and hands particularly hands - She continues to have generalised fibromyalgia - tendentious - like pain in neck & upper limbs." 3 He then went on to say: "I cannot accurately say but my impression is that she is able to do most things - she needs medication most of the time for pain etc." In a report on 13 February 1995 Professor Burry stated: "Mrs Palmer has developed chronic pain syndrome, affecting the cervical and shoulder regions, which appears to be related to the postural strains that she experienced while carrying out her work as a printed board assembler." The appellant underwent a 6 week outpatient management programme at Burwood Hospital in November 1995. In December 1996 she had an extreme reaction to a 2- hour work trial in a plastics factory which exhibited an exacerbation of her arm symptoms and a back injury for which she required physiotherapy. The file includes a report from Dr J Alchin dated 12 October 1997 dealing with the fibromyalgia syndrome but not with particular reference to this appellant. However, it is of interest because Dr Alchin expresses the view which was accepted as the majority view by those attending the Consensus Meeting on fibromyalgia. Dr Alchin notes that: "In summary, it is chronic widespread musculoskeletal pain syndrome, rather than a specific disease. The pathophysiology is unknown." In a report to the respondent on 27 November 1997, Dr WE D Turner set out the appellant's complaints as: 'She related the onset of her symptoms back to the early 1980's when she was working at PDL soldering on the end of a production line. She recalled picking up a box, turning her head in rotation at the time suffering a mid cervical sprain. She regards this as the initial onset of all her current problems. Subsequently she went on to experience recurrent cervical discomfort brought on by the adoption of constrained flexion postures looking down at her work. In the late 1980's when she was working in the North Island at Harding Signals she developed bilateral tennis elbow said to be related to the work at the time which involved manufacturing printed circuitry. At the same time she developed a bilateral carpal tunnel syndrome with pins and needles in her hands, loss of strength and dropping items from her grasp and diffuse pain in both arms, hands, wrists and forearms with the result that she underwent bilateral carpal tunnel release surgery she thinks in 1989. Shortly afterwards she recalled having a fall when out walking and slipping on moss. She advised that she was in the habit of taking regular exercise through being very overweight and as a result of the fall began to develop low back pain. The initial acute episode resulted in her being off work for some 6 weeks when she was at Harding Signals eventually resulting in her being laid off. In addition to these injuries she suffered an RSI complaint of her left shoulder/arm in August 1990 being a little hazy as to where she was actually working at the time but did recall that when she was at Harding Signals she had a considerable amount of time off not only with her back pain but with her carpal tunnel syndrome, tennis elbows and RSI of her left shoulder and arm. At the time she was also describing overuse symptoms of her right arm. She moved back to Christchurch at the end of 1990 [after being made redundant from Harding Signals] and has subsequently remained on ACC apart from a work trial at Click Clack International in October 1996. This work involved lifting boxes of a pallet, opening the boxes, removing the canisters, replacing labels on the canisters, putting the plastic bag back on, placing the canisters back in the box, taping the box and lifting the box carrying it some 4 metres. She described having to obtain the boxes from a height greater than her head. As a result she described a crescendoeing of her symptoms with pain in her neck, migraine, both arms, shoulders, the full length of the spine to the lumbar region. She advised the work trial only lasted 2 hours and she has not worked since. Recently some 2 weeks ago she had a further fall when putting her washing out on the line suffering a sprain to her right foot and further injury to her back and neck." His prognosis was: "In my opinion there are a number of interconnected diagnoses that have combined to produce her current musculoskeletal condition. Firstly there is little doubt in my mind that she has a fibromyalgia pain syndrome using the American College of Rheumatology 1990 criteria with diffuse pain on both sides of the body above and below the diaphragm together with 18 out of 18 diffusely distributed tender points. She also manifests ancillary features of chronic fatigue, paraesthesia, mood disturbance, irritable bowel syndrome and sleep disturbance. Secondly she is significantly overweight for her height with a diagnosis of obesity using body mass index criteria for her height to weight ratio which is 40 kg/m', the upper limit of normal being 25. Thirdly she has a poor posture, forward drawn shoulders, protracted scapulae, accentuated thoracic kyphosis with a dowagers hump. Fourthly she is significantly stressed with long term depression for which she uses Prosac. Fifthly she is grossly unfit, is deconditioned and, she smokes cigarettes at the rate of 30 per day. Sixthly she is pain focussed manifesting pain behaviours exhibiting hyperventilation with facial grimacing during the clinical examination. Seventhly there was evidence of arthritis in her hands which has influenced hand function. Her prognosis will depend entirely upon her ability to control lifestyle factors such as her weight, her depression, her ability to cope with stress, her cigarette smoking, her fitness and musculoskeletal strength. I believe any occupational overuse syndrome that existed has now passed and that the predominant factors precluding a return to work are lifestyle ones and those that pertain to her chronic pain fibromyalgia state." In a file memorandum the respondent's medical advisor, Dr K Morris, recommended that entitlements be ceased on the grounds that the appellant's current diagnosis is fibromyalgia. The appellant's counsel arranged for her to be examined by Professor H Burry. His report of 10 June 1998 states: 5 "Although it is not recorded in my previous report, she told me that she had injured her back in approximately 1991 when shed fell into a creek while in Wellington and had intermittently suffered back pain ever since. Last year she was sent to a factory for work experience. Her duties included lifting large cartons from stacks and later replacing them on other stacks. She states that this made her a great deal worse, her lower back, neck and arms all becoming more painful. In particular, her low back pain radiated to both legs accompanied by tingling sensations and these symptoms had continued ever since. The low back pain has been a considerable source of stress to her and to this has been added the grief that she has experienced with the death of both of her parents. Nevertheless, she has persisted with a regular walking programme to attempt to maintain some physical fitness and more recently has been assisting a friend in a voluntary capacity operating a small shop. She makes sandwiches and serves at the counter for up to five hours per day, usually two days a week. She finds that standing for any length of time aggravates her back, but nevertheless the activity overall is good for her morale." Professor Burry then went on to state: 'Mrs Palmer undoubtedly has a chronic pain syndrome which would satisfy the criteria for a diagnosis of fibromyalgia syndrome. This arose out of a period of increasing aching in her neck and shoulders which she experienced while working in a factory and culminating in an acute onset of pain when she moved her head suddenly and developed acute neck pain." And: "This remains her present diagnosis. I note that there has been evidence of depression from time to time which has required medication with antidepressant drugs. This is a common feature of fibromyalgia syndrome." And: "From the information available to me, it would appear that her present incapacity and symptoms represent a continuum of the disorder that developed in 1990 and which was accepted at that time as a work injury by ACC. There is reason to believe that the nature of her work over the years leading up to 1990 might well have provided postural strains causing chronic pain in the neck and shoulders and that some more acute strain of soft tissue occurred to explain the pain that she developed in her neck. Without doubt, one would have expected these problems to settle with withdrawal of the work environment which had been associated wit the onset of her problems, with the addition of suitable management programmes." Professor Burry's conclusion was: "In the ACC's decision of 24/4/98 in which the vocational case manager states with respect to fibromyalgia 'this is not caused by injury nor is it related to the claim given cover in March 1990 for a strain to your arm'. The writer appears to 6 be assuming that it is now generally agreed that fibromyalgia cannot be caused by injury. This is most certainly not the case and it is not correct to say that fibromyalgia is not or could not be related to the claim given cover in March 1990. It seems certain that Mrs Palmer has never been free of symptoms since 1990 and I do not believe that it could be said that her current condition is not the result of a process that was initiated at that time. Therefore, although one can share the corporation's disappointment that what appeared to be a quite minor strain has led to incapacity of seven years duration, it does seem to me that Mrs Palmer suffers from a condition which had its onset arising out of and in the course of her work and that she may well be still legally entitled to cover under the accident compensation act." The issue before me is whether the respondent was correct to cease payment of the appellant's entitlements pursuant to s.73(1) on the grounds that her ongoing symptoms are the result of fibromyalgia and not personal injury by accident. Mr Shepherd submitted: 1 . That the appellant's original condition was accepted as being RSI which arose out of and in the course of her employment. He submitted that while Dr Turner considers that she now suffers from a new condition unrelated to her previous problem, that is not supported by the evidence of Professor Burry. 2. That the review officer erred in not making a detailed analysis of the medical reports and especially Dr Burry's opinion and appears to have followed the policy line that fibromyalgia is not a personal injury. Mr Corkill submitted: 1. That the Court should rely on Dr Turner's evidence in preference to that of Professor Burry who, he submitted, was not aware that there had been an 8 year history of neck related pain. 2. That the issues in this appeal are particular to this case and not assisted by an analysis of the cause of fibromyalgia, although the review officer considered it was. I do not agree with Mr Corkill's submission. The respondent saw fit to cancel the appellant's entitlement on the grounds that the problems arising out of the RSI for which she had originally been granted cover had expired and that her ongoing symptoms were the result of fibromyalgia. This was strengthened by the fact that I was supplied with a copy of Dr Alchin's report on fibromyalgia which followed the line subsequently taken by the majority at the Consensus Meeting on fibromyalgia. As I explained in Teen (No. 335/99), I had the benefit of hearing viva voce evidence from Dr Alchin in that case from which it became evident to me that the purpose behind that meeting on fibromyalgia and the reason why it has been adopted by the respondent was to find a means for denying cover to persons who have originally been diagnosed as suffering RSI. It was presented as a policy matter because too many claims were being made for similar type injuries. I do not consider that the 7 situation is any different in this case. I consider that Professor Burry has encapsulated the true position in the final paragraph of his report of 10 June 1998 which I have already quoted. As I have stated in Teen and in a number of other appeals heard about the same time, I consider that the initial cause of injury for which cover was granted was the nature of the work situation which brought about the restrictions in the appellant's neck and arms caused by the need to operate in a restricted manner. The initial effect created a muscle strain which resulted in pain. However, I consider the pain to be the result of the muscle strain. I agree with Professor Burry that the symptoms now exhibited "represent a continuum of the disorder that developed in 1990 and which was accepted at that time as a work injury". I do not consider that her condition has changed merely by pronouncing that it is fibromyalgia and not the original condition for which cover was granted. The appeal is allowed and the appellant will be entitled to reinstatement of her entitlement. The respondent is to pay the sum of $1,000 towards the appellant's costs, together with the costs of Professor Burry's report. DATED at WELLINGTON this 29th day of November 1999 A W Middleton District Court Judge dca41198.doc(rd)