Chelsea Private Hospital v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 227 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CHELSEA PRIVATE HOSPITAL of Gisborne Appellant (Appeal No. DCA 156/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr N M Mackie on behalf of the appellant and from Mr S Condie for the respondent with the request that I issue a decision on the papers. The issue is whether the appellant's employee, Mrs C Sinclair, (the worker) suffered personal injury by gradual process arising out of and in the course of her employment with the appellant. The facts which give rise to the appeal are that the worker commenced work as a cook in the appellant's kitchen on 1 June 1994. She worked 3 days per week, 7 hours per day in split shifts, being a morning shift from 7 am to 1.30 pm and an afternoon shift from 4.45 pm to 7 pm. On 3 April 1995 the worker lodged a claim with the respondent for cover under the Act. Her general practitioner Dr Cloete diagnosed " bilateral carpal tunnel syndrome - by lateral epicondylitus & shoulder strain" The worker noted in the claim form that she considered the injury was caused by "heavy lifting of soup pots and kettles continually & they weigh 10 kgs or more has caused pain in wrist, elbows & shoulders all the time". 2 In a report to Dr Cloete on 11 April 1995 Mr S Matthews, an orthopaedic surgeon, stated that he did not consider that the diagnosis was RSI and that the appellant should undergo physiotherapy for her cervical spine and that he would review her later. In a report from Mr R D Wigley, a rheumotologist, dated 28 May 1995 he detailed his then findings as: "As arranged I saw Mrs Sinclair today concerning her occupational overuse symptoms. Her occupational history is detailed in Mrs Bull's letter. She had for five years been in lighter clerical work for the Hospital but working on night shift. To get a day job she changed to cooking alternatively three and four days a week at the Chelsea Hospital. The hours varied from 7 to 9 hours a day depending on the load. She started the job at the beginning of June last year and developed symptoms in October/November, and has been off work since March. The work involved lifting heavy two handled pots that sound to have been 10-20 kgs in weight from various parts of the kitchen to the stove and back. The job which gave the greatest difficult was lifting a large teapot which was not provided with two handles though she tried to lift it with both hands on the one handle. She alternated in the work with another person who had been there two years and who said that the work load over the particular period in question was much heavier than usual as there were more patients in the hospital. SYMPTOMS She first noticed a numbness in the hands when she woke in the morning and subsequently developed pains in the elbows with a strong burning sensation up the extensor muscles of the forearm after any activity and this discomfort had continued since. She feels some discomfort in the shoulders but has not at any stage had discomfort I the neck or limitation of movement. The pins and needles and numbness are less evident than they were but the pain varies considerably in degree. Her hands turn white at times but there has been no swelling. PRESENT LIMITATIONS She has had to give up sewing, golf, gardening and knitting. She manages vacuuming with great difficulty. Preparing vegetables and lifting pots aggravates her symptoms, and she can only cope with the washing by using an automatic machine and a dryer. Jobs such as cleaning are not feasible. At the moment this is a particular problem since her husband has just had an operation but she does get some help from her daughter. Driving the car is also difficult 3 EXAMINATION Though she was rather depressed at one stage and not sleeping she is now much better in that respect and presents as having a very straight forward personality. She does not have the tender points of fibromyalgia. The range of movement of her joints is normal. Her grip strength at 18 on the right and 17 on the left. This is moderately reduced as it would normally be in the 20's. She has a dominant right hand. Her sensory symptoms are not a problem at the moment and I note that conduction studies by Dr Baker are negative. There are no clinical suggestions that her symptoms are arising from the neck. The osteophytes encroaching on the neural foramena in the x-ray would affect the C4 level, whereas her symptoms are below that so I regard that as irrelevant. DIAGNOSIS Occupational overuse syndrome affecting mainly the forearms with symptoms probably due to entrapment of nerves in the lower arm. REHABILITATION She has been having treatment from Mrs Bull who has been instructing her in relaxation and the need to take frequent brief breaks. I have given her a booklet on this subject emphasising the need to do this. She will discuss the detail with Mrs Bull. The Amitriptyline 25 mg at night is definitely helping. She should continue this. She should practise taking frequent brief breaks in domestic activities right down to small jobs like peeling potatoes and handwriting. She should only write two lines at a time before taking a break. It is likely to be two months or so before further profitable employment could be seriously considered. I feel that returning to her original job would lead to recurrence of symptoms. It would be possible for an occupational therapist to visit the work place and make changes, for instance, changing to a two handled teapot of smaller size and the use of trolleys to move the heavy pots to various parts of the kitchen, sliding them on and off rather than lifting them. As she is short she would also at certain positions needs a foot stand, preferably made of aluminium so it is easily cleaned and moved about. This sort of modification would be more in the interests of those who follow her to prevent others developing the same symptoms and I think an occupational therapist should advise on this. As Mrs Sinclair has proven skills and experience in clerical work I would recommend that she returns to that type of work if possible. Ideally she should work up from two hours to four hours to six hours slowly but if that is not possible, and a lot of employers don't tolerate that, she would have to go through 4 that phase using her domestic tasks to work up her fitness so that she would then be able to handle a full time job. Answering your specific questions: 1 . Diagnosis: Diffuse symptom occupational overuse syndrome. 2. (a) Condition a direct result of employment tasks: I consider that her symptoms have developed because of three months employment tasks in the kitchen associated with repeated heavy awkward lifting. 2. (b) Whether the symptoms result from a specific incident: This is not the result of a specific incident. 3. Is Caroline fit for selected work: I don't consider her fit for selected work yet and would recommend a graduated return to a work programme over the next two to three months. 4. Further treatment: She should continue to be assisted by Mrs Bull. I would not emphasise exercise but rather relaxation. 5 . Home Help: This would be best assessed by an Occupational Therapist. Meanwhile I would suggest one hour a day five days a week for the next six weeks. This of course can be varied according to progress." Mr Wigley had before him a copy of the report from Ms Bull to which he has referred. She is a physiotherapist who had prepared a report dated 15 May 1995 in which she set out the background to the appellant's problem and her opinion as to its cause. That report stated: "OCCUPATIONAL HISTORY After leaving school in 1965 Caroline began work at the Gisborne Hospital Laundry. She remained there for 3 years. In 1968 she married and had children. In 1982 she resumed work, cleaning at the Sandown Hotel. In 1988 she returned to Gisborne Hospital to a management role of Food Supervisor. This position involved some computer work but was made redundant after 12 months. 5 Caroline was redeployed full time into relieving clerical duties which included shift work. In 1994 she left because of the midnight to 8 a.m. shift and consequent lack of social contact with her husband. In June 1994 she took on the shared position of Chelsea Hospital cook, with her sister-in-law, who had been working in the Chelsea kitchen for the previous 2 years. This work entailed planning the menu, shopping, cooking and serving meals and morning and afternoon tea onto patient's individual trays, working to a deadline time wise. Meals were also provided for the theatre and ward staff and the cooks were responsible for all the cleaning duties in the kitchen. The routine was altered from shared half day shifts to one person working for 3 consecutive days and then 3 days off. When the patient loading was more than 13 the other cook came in to assist. The patient numbers in the first 3 months of Caroline's employment were particularly high and at the end of this busy period. Caroline became aware of pain in her elbows and shoulders. The pain was more noticeable at night. RECENT MEDICAL HISTORY By October/November 1994 Caroline noticed pain in the right elbow and wrist particularly when lifting heavy pots and large kettles of hot water from the stove and pouring from these. She hoped this pain would settle during the 3 week Christmas break but by the end of January/February 1995 the plan had returned and had become more persistent and she reported this to her Doctor. An interim diagnosis of Bilateral Carpal Tunnel Syndrome, Bilateral Epicondylitis and Shoulder Strain was made. At her Employer's request, a further opinion was sought from an Orthopaedic Surgeon. X-ray findings showed 'a narrow disc spacing at C5 - Co and an osteophyte outgrowth posteriorly impinging on the intervertebral formamina'. The Orthopaedic Surgeon then requested a nerve conduction test to be done by a Neurologist and this was done on 23 May 1995. SYMPTOMS Caroline first attended Physiotherapy on 3rd April 1995, complaining of pain in both shoulders, elbows and wrists. The pain was initially noticeable in the shoulders, right more than left, then she noticed pins and needles in both hands especially in the morning. Her arms felt very heavy and the pain spread into the region of both elbows. She began feeling shooting pains and a burning sensation in her forearms, especially noticeable e.g. when squeezing a dish cloth and she has difficulty opening screw top jars because of pain in the forearms. Lifting a weight with the hand pronated causes increased pain in the elbow over the origin of the extensor muscles. No pain is reproducible with cervical movements. PHYSIOTHERAPIST'S IMPRESSION 6 Moderate to severe Occupational Overuse Syndrome of the upper limbs with bilateral diffuse symptoms. PHYSIOTHERAPY TREATMENT Careful assessment. Explanations to the patient regarding the above syndrome. Connective tissue massaging techniques for stress reduction and rebalancing of the Autonomic Nervous System. Explanations and instruction in relaxation and pause/relaxation techniques and the importance of practising this at regular intervals i.e. three seconds of every three minutes daily, ad until it becomes a habit. It is difficult to gain any clinical improvement until the present conflicting diagnoses have been resolved. The present uncertainty is causing increased stress for the patient and I feel it will be helpful when a consensus of opinion has been determined." On 15 June 1995 following receipt of Mr Wigley's report the respondent notified the worker that it accepted her entitlement to cover. The respondent also notified the appellant that it recognised the worker's problem as a work injury. In a letter dated 22 June 1995 the appellant disputed the respondent's finding and in doing so stated: "I wish to dispute the claim that heavy awkward lifting in our hospital kitchen was the cause of the claimants injury. All of our kitchen equipment is of domestic kitchen size - the heaviest piece of equipment is a 10 litre soup pot with two handles. Boiling water for tea making is supplied for a designated tap connected to a separate hot water cylinder (under bench). All pots and pans are domestic size. Mrs Sinclair worked a 3 day on, 3 day off roster. The menu is a fortnightly one - i.e. different meals each day for 14 days. All patient teapots are small 1 1/2 cup size. Tea is made individually with tea bags. The staff have a size cup teapot but make their own tea. We have a commercial size gas oven which is larger than we require but makes for ease of use. This hospital carries an O.S.H.. achiever award plus a 3 year accreditation award from the N.Z. Council on Healthcare standards. Both these organisations have checked the safety and suitability of our kitchen equipment." 7 On 16 August 1995 Mrs H Hannan who was also employed by the appellant as a cook, provided a statutory declaration in which she stated: "During June/July 1994 we had a large amount of patients for meals and so quite often either cook on their rostered day off would come in to help with the work. I would say that the pots and pans were larger than domestic size, and for practicality if there were a large amount of patients for meals the large kettles which were heated on the gas stove were used to fill patients teapots." In a report following assessments on 13 and 14 February 1996 Ms R Stuart, an occupational therapist, stated: "WORK STATION ASSESSMENT NAME: Caroline Sinclair NUMBER: F6507970.002 Place: Chelsea Hospital Referred by: David Abbott Dates of Assessment: 13th and 14th February 1996 Time spent: 1 hour incl. report Deficiencies noted in the workplace The kitchen is very well set out. The main bench could be too high for a short person, however there is a lower table in the centre of the room. Although some equipment is kept on high shelves, there is a stool available for use when reaching them. Heavy bags of vegetables are delivered to the store room so the cook only needs to pick out the days requirements. The maximum weight of any goods seen was 5 kg e.g. sugar and flour. There is no electrical means for whisking however cream is only whisked rarely. In summary, there is little or no problem with the actual workplace. Summary of Caroline's duties and deficiencies noted in work practice 1. Preparing and serving meals - this would involve the actions of cutting, stirring, pouring etc. 2. Preparing pots of tea and coffee for patients. Each patient has an individual pot, however Caroline used to fill a large pot from the zip or tap and then pour into the individual pots arranged on the higher of the two benches. This could have contributed t the onset of arm pain. There was however, an alternative method which would have made it much easier for her. 3. Caroline was also responsible for cleaning the kitchen e.g. washing walls, cleaning the oven, sweeping and mopping the floor daily. 4. She also did dishes. Those that could not be done in the dishwasher were done in the sink. 8 5. Caroline was also responsible for ordering supplies from the supermarket. However, Caroline chose to attend the markets on Saturday mornings to purchase fresh vegetables at a cheaper price. 6. Caroline shared the job so she worked 3 days on/3 days off. The job started at 7 am to 1.30 pm then back at 4.45 pm till 7 pm. Caroline says that she worked very hard while in the job and would go home in the afternoon for a rest. This is borne out by Ms Evernden who states that Caroline worked very hard, often when she didn't need to. The maximum number of patients to cook for would be 22 but this was not often - the average tended to be about 10. The pots used are not large as would be found in most commercial kitchens however one was iron which would make it heavier than the stainless steel equivalent. Summary based on assessment findings 1. While Caroline is adamant that the symptoms arose while she was working in the kitchen at Chelsea, there is nothing at fault with the kitchen itself except for a couple of minor points noted. 2. It is more likely that Caroline's symptoms arose because of the methods she used, the fact that she was always on the go and I suspect that her posture has been an influence as well." In a report of 3 May 1995 Mr P Baker, a visiting neurologist with Tairawhiti Healthcare Limited, noted: "Mrs Sinclair was seen in neurology clinic today for assessment of pain and other symptoms in her arms. She is a 47 year old woman who lives with her husband and 27 year old daughter and child in Gisborne. She worked at the hospital for five years doing clerical work but on 1 June 1994, she resigned and went to a job as a cook at Chelsea Hospital. Her tasks there include doing dishes four times a day, preparing vegetables and mopping floors. She says that she has to do a lot of work with her arms including lifting heavy pots. By August or September she developed pain in her arms initially feeling this was in the muscles and she thought that it was due to the amount of lifting she was doing. Her problems continued through a summer holidays and did not seem to be helped by rest. Because of worsening in her symptoms, she went off on ACC on 10 April 1995. Currently she complains of a dull constant ache in the region of her left shoulder and upper arm. The shoulder is at times tender and painful to move. There is similar pain on the right side but it is much less prominent. If she does things with her hands such as wringing out a cloth she has sharp pains extending up to the forearm muscles. She also complains of pins and needles, paresthesiae in her hands on waking. This particularly involves the index and middle finger and it is worse on the right than the left. She can wake up with one or both hands involved. The fingers often also feel stiff when she first wakes up. She describes 9 hand grip on her left side being decreased in strength. She has not had any pain in her neck and is not aware of any injury there. There have been no problems in the legs or feet, or any bladder dysfunction. She has been treated with an anti-inflammatory drug which made her feel sick and did not give any benefit. Within the last week she has been given Amitriptyline 25 mg a day. It is too early to know whether this is helping or not. She says that she has felt mildly weepy since starting this. On examination she is a medium built woman. There is no tenderness or loss of mobility in the neck. There also is no tenderness or any problems with movement in any other joints (she says that the shoulder normally would be sore, however). On doing a Phalen's test, she developed parenthesize in the left index and middle finger reproducing her early morning symptoms. Tinel's signs however are negative. She appears to have mild weakness of thumb abduction bilaterally and strength elsewhere is normal. She tests to having decreased pin prick sensation over all finger tips and also the tips of the thumbs. Tendon reflexes are normal. I note that she has had cervical spine x-rays which show an osteophyte associated with C4/5 disc degeneration and this impinging on the nerve root foramen on the left. Despite her x-ray findings there is little clinically to suggest that her symptoms are necessarily arising from her neck. If she were getting acute nerve root irritation she ought to describe more of a sharp shooting pain rather than a constant ache unless the pain is purely on a referred basis. She attributes her symptoms to the type of work she is doing and this may well fit into the category repetitive strain injury although I agree that the pathology behind this is rather uncertain. She does also have some minor symptoms in her hands suggestive or carpal tunnel syndrome. In the light of this I will book her in for some nerve conduction tests which will be done in about a months time (I am away at a meeting and on holiday in the next month). A further report will be written after her nerve conduction tests." On 13 March 1996 the respondent's medical officer, Dr Reddy noted: " Several medical assessments have tended to support the diagnosis of OOS which is often a clinical one. An obsessional person is more likely to develop this. Working as a cook may have contributed significantly to her condition - I understand that she feels better now, in a clerical position." A further report from Mr Matthews dated 20 December 1996 states: "Further to your letter dated 7 October 1996 I would like to supply the following information. 10 Mrs Sinclair has been thoroughly assessed by Dr Wigley and he has made the diagnosis of an occupational overuse syndrome. He has stated that her symptoms were not coming from her cervical spine. When I saw her today she is still experiencing some pain in her arm which is work related. She has a full range of movement of her cervical spine and there are no signs or symptoms in the upper limbs which could be correlated with the C4/5 disc lesion. Therefore one must assume that the cervical disc seen on the x-ray was an incidental finding and her diagnosis is an occupational overuse syndrome as stated by Dr Wigley. With this in mind your second question is therefore superfluous. Her work as a cook lifting pots and pans, kettles etc, etc could have caused the occupational overuse syndrome and not caused her cervical disc problem as she does not have one. Similarly your third question is also superfluous. I concur with the diagnosis of Dr Wigley and now that Caroline is back at work on a full time basis, she is coping really well but she does now her limitations and I think one should encourage her to continue in this manner." The appellant provided written submissions and additional evidence. Mr Mackie's principal submission at the review hearing suggested that there must be doubt as to what was the original injury. He submitted that no other member of the staff and in particular the second cook, had any similar problems. The review officer set out the details of the medical evidence and then referred to the requirements of s.7 of the Act. The review officer concluded that on the basis of the medical evidence the requirement that the work undertaken by the worker had a property or characteristic which caused or contributed to her personal injury must be answered in the affirmative. He concluded further that there was no medical evidence which supported the submission that the appellant's non-work activities made a material contribution to her injury. The review officer also held that on the basis of the medical evidence it was more likely that the work symptoms arose because of the methods used in her work and her posture and her busy nature which contributed to her problems and that on the balance of probabilities as she had no symptoms prior to working for the appellant the risk of personal injury for her was significantly greater than for persons not performing those employment tasks in that environment. It is against that decision which the appellant now appeals. Mr Mackie has submitted: 1. That the respondent has based its decision on incorrect assumptions and incorrect statements of fact. That there is no actual evidence of repeated heavy awkward lifting on which to support Mr Wigley's assessment. 2. That Ms Stuart found no significant problem in the workplace and that the pots used were not large and were normal in commercial kitchens. That Mr Wigley had accepted the worker's statement that she was lifting heavy pots. That Mrs Evernden, the principal nurse, stated that the kitchen had only one large teapot. 11 That if the worker had used larger teapots to fill small individual teapots the amount of lifting involved in that would have been minimal. 3. That Ms Stuart concluded that the worker's problems, if they occurred while working in the kitchen, must have occurred because of the bad methods employed by the worker to do the work. 4. That no inquiry had been made into the worker's non-work activities or her non-work environment. 5. That initially the worker was not able to ascribe her injuries to any particular event at work nor was it in her interest to focus on problems outside her workplace. That her golf, gardening and sewing and cleaning of her own home including lifting pots and kettles could just have easily have caused the problems. 6. That it is difficult to understand that the worker's risk of injury in her work environment was significantly greater than for people not performing her employment task in that environment when the second cook who was performing the same employment did not suffer a personal injury. Mr Condie submitted: 1. That the medical evidence clearly supports the findings of the review officer. 2. That the other cook, Mrs Hannan, did confirm that at times there were a large number of patients requiring additional hours of work from each of the cooks. 3. That while it was found that there was no functional fault with the kitchen the methods employed by the appellant to do her work were the likely cause of her symptoms. That this view is supported by all the medical evidence. 4. That even if the utensils used by the worker were not of themselves heavy or awkward she could have used more efficient methods in carrying out her employment tasks but the result was that the method she used involved her in repeated awkward heavy lifting which caused the problem. 4. That there was little evidence of her non-employment activities other than references to gardening and her general work around her own home and playing golf. That the review officer's finding was that the appellant's non- work activities were not a material contribution to her injury. 5. That the fact that no-one other than the appellant suffered a similar injury is not by itself conclusive that persons performing that task in that environment suffered a significantly greater risk. That regard must be had to the particular characteristics of the appellant. That the risk of suffering occupational overuse 12 syndrome is significantly greater for persons performing repeated heavy or awkward lifting than for persons who do not undertake that ask. The issue falls to be decided under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992 which states: "7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if -- (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non- employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment." While the appellant has strenuously opposed the findings of the respondent and the review officer, I agree with Mr Condie's submission that the overwhelming medical opinion is that the nature of the work undertaken by the worker was the cause of her problem. While I accept Mr Mackie's submission that the utensils in the kitchen may not have been of the weight or size originally indicated by the worker in her initial claim and her statements upon which Mr Wigley relied the evidence overall indicates that she was susceptible to an injury of this nature and that this susceptibility was exhibited by the awkward manner in which she performed the tasks. The Court has to be guided in cases of this nature by the medical evidence which as I have already said overwhelmingly supports the view that this appellant suffers from OOS which arises out of the nature of the work in which she was involved in the appellant's kitchen. This appears to have been further exemplified by the fact that since she has been taken off that work her condition has improved. Mr Mackie has submitted that insufficient weight has been placed on the fact that the appellant's normal activities outside the work environment were basically similar to those which she performed in the work environment so that it could not be said that her non-employment activities did not contribute to a material extent to her problems. While I agree that she did perhaps perform similar type duties outside the workplace these did not constitute a continuous and heavy load but were only occasional periods of the same type of activity. The evidence in this case does establish that while she was on duty she was particularly busy and had to keep up a strict routine in order to satisfy the needs of the patients in the home. This involved the picking up of the various utensils which it appears were heavier than those which she would have used in her home and required repeated similar type tasks over a continuous period with the result that the medical evidence concluded that 13 the manner in which she performed that continuous task was the main contributory factor to her problem. While Mrs Hannan did not suffer the same problem, although she engaged in the same work, that by itself is not conclusive that the worker was at a significantly greater risk in performing that task than for other persons in that environment who did not perform that task. The Court has previously held in Innes (20/97) that the egg-shell skull principle applies to this legislation. Dr Reddy recognised that the appellant was susceptible to this type of problem because of her condition and the manner in which she worked. I agree with Mr Condie's submission that the risk of suffering the problem was significantly greater for the appellant while performing repeated lifting in an awkward manner than for persons who did not undertake the task. It does seem on the evidence and as a general observation that where a person with the physical characteristics demonstrated by this worker is required to undertake tasks of the nature undertaken by the work such a person is more likely to develop an occupational overuse syndrome than persons with those characteristics who are not performing those particular tasks. The decision of the review officer indicates a very careful consideration of the evidence and the very full submissions made on behalf of the appellant. I agree with his findings and the appeal is dismissed. DATED at WELLINGTON this lOth day of November 1997 Aueradila A W Middleton District Court Judge dc156-97.doc (rd)