Hensley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 82 / 9 7 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CHRISTINE MARY HENSLEY of Auckland Appellant (Appeal No. DCA 195/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of April 1997 APPEARANCES Appellant in person A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has suffered personal injury by gradual process, disease or infection. The appellant consulted her general practitioner on 20 September 1995 when he diagnosed her as suffering from occupational overuse syndrome. At that time the appellant was a communications co-ordinator working for Telecom. In completing the gradual process, disease or infection claimant questionnaire the appellant described her work tasks as "hand-writing and blackboard writing, stapling, carrying, punching (for filing - photocopying and distribution of materials). Verbal briefing of staff, keyboard work when traffic conditions busy (not often)". The respondent referred the 2 appellant to Dr R M Reynolds, a specialist in internal medicine and reumotology. His findings of 8 December 1995 were: " In answer to your specific questions: 1. Examination findings are as given above. The initial symptoms were strongly suggestive of carpal tunnel syndrome, but there is no evidence of that on examination at present, nor evidence of any predisposing condition. 2. There is no clear relationship between her employment and her symptoms. It is noted for example the initial symptoms at night affected both hands equally, yet her employment would affect the right hand substantially more than the left (noting that she is right handed, does a lot of writing but very little keyboard work). The nature of her duties would not seem to put her at particular risk of occupational overuse syndrome. 3. No other contributing factors were identified. 4 She should continue at work (as she has done), and avail herself of such treatments as she has found helpful. Should she have a recurrence of symptoms suggesting carpal tunnel syndrome, then further evaluation (perhaps including nerve conduction studies) would be appropriate. 5. She is presently fit to continue her normal duties. 6. The prognosis is good for continued employment. She has no signs at present of any progressive joint or soft tissue disorder. 7 . No other comments." As a result of that report the respondent declined the appellant's claim. The appellant applied for a review of that decision as a result of which the respondent sought a further report from Dr Reynolds which is dated 2 May 1996 and states: 'Thank you for your letter of 27 March 1996. You have asked for further comments regarding the diagnosis of her condition and its relationship to her work. Reviewing my report, I do not think that I can help you any further. Miss Hensley was quite clear that the initial symptoms occurred at night, were bilateral, and were characteristic of carpal tunnel syndrome. A contribution of referred symptoms from the cervical spine is possible, and would be in keeping with the more proximal pain subsequently experienced. It is not however at all clear to me that these symptoms related in a specific way to her work, and I think you would need to ask Dr Batt, who diagnosed occupational overuse syndrome, on what basis he made the diagnosis and on what basis he attributed it to her work. She gave me a clear description of varied office activities, and very little keyboard work, which would not seem to have put her at any particular risk of OOS." 3 At the review hearing the appellant produced a letter from her general practitioner who considered that the appellant was still suffering from OOS as a result of her work. Also submitted was a report from Dr E W Dryson, an occupational medicine specialist written to the appellant's general practitioner on 6 June 1996 which states: "I saw Christine again on 29 May 1996 for review. She reports that she did in fact have a flare-up of symptoms after starting her new job. Specifically, repetitively opening and shutting spring clips in binder files. She was off for two weeks and is now back again 1/2 time. On examination she was tender over the medial and lateral epicondyles with tenderness extending into the forearm extensors particularly on the right. She continues to have evidence of adverse neural tension. It is clear that Christine's condition is due to her job and this would be considered to be an occupational overuse syndrome. It is also clear in the new job that she has been asked to do has the potential for worsening symptoms and is not suitable for her. The specific activities which caused the recent flare-up are apparently an integral part of the new job and she will not be able to avoid these tasks if she does in fact take the new job. It is my recommendation therefore that if her old job is in fact not available then she takes severance." The appellant told the review officer that while she had been changed to a different job within Telecom she had been doing her previous job for 5 years and it included the description which had been included in her claimant questionnaire. She said that the symptoms had gradually evolved and had been quite bad by the time she sought help from an occupational health consultant. The appellant had endeavoured to overcome the problems herself by trying numerous therapies including osteopathy, acupuncture, homeopathy and herbal remedies. She told the review officer that she had some immediate relief but the condition had taken some time to improve. However, by taking care in pacing herself through her activities she was able to continue with her work. The appellant explained that while she does some keyboard work this does not occur very often. In her decision the review officer referred to the requirements of s.7 of the Act and held that inspite of Dr Reynolds' opinion the appellant's work environment did have a particular property or characteristic which caused or contributed to her occupational overuse syndrome and so brought her within the requirements of s.7(a). She also held that the appellant did not engage in outside activities which contributed to her occupational overuse syndrome and accordingly she had satisfied the provisions of s.7(b). The review officer held that the remaining question was whether in terms of s.7(c) the appellant was more at risk of suffering occupational overuse syndrome while performing the employment tasks which she does in her environment than others would be who were not performing that task in that environment. She concluded that the appellant did not qualify under s.7(c). The review officer found that the 4 major contributors to her condition were intense repetitive writing on the whiteboard and the carrying of heavy weights and that the appellant's risk of suffering her condition while undertaking those tasks was not significantly greater than the risk existing for others in a wide range of occupations. The appellant has appealed against that decision. In a written submission attached to her appeal the appellant has again repeated details of the problems suffered by her and the nature of her work. Also in the course of her submissions she referred to the same problems but did not address the specific issue which is whether or not there is a significantly greater risk of the injury she suffered arising in her employment than for those not undertaking that employment. Mr Barnett submitted that to satisfy the requirements of s.7(1)(c) there would need to be some supporting expert opinion. He submitted that it would be a mistake to simply make the assumption that because the injury was caused by the employment and because the employment involved repetitive activity it must be that the employment poses a significantly greater risk. In relation to s.7(c) Mr Barnett submitted that Dr Reynolds had said in his first opinion "the nature of her duties would not seem to put her at particular risk of occupational overuse syndrome" and again in his second opinion "she gave me a clear description of varied office activities, and very little keyboard work, which would not seem to put her at any particular risk of OOS" Mr Barnett submitted further that Dr Dryson had suggested that the appellant should not return to her former employment as it "has the potential for worsening symptoms and is not suitable for her". He submitted that that suggestion does not mean that the employment poses a significantly greater risk for persons working in that environment than for persons not working in the environment. He submitted that Dr Dryson does not go so far as to say that the risk is a "significantly greater risk" I agree with Mr Barnett's submissions. The issue before me is only the issue required to be decided in respect of s.7(1)(c) and that is whether there is a significantly greater risk of personal injury in her employment than for those not undertaking that employment. The only evidence in relation to this matter are the statements by Dr Reynolds. I agree with Mr Barnett that Dr Reynolds' statement does not indicate such a significant risk and the appeal must be dismissed DATED at WELLINGTON this 30th day of April 1997 A W'Middleton District Court Judge de195-96.rd