Moore v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 54/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DENIESE JEAN MOORE of Hastings Appellant (Appeal No. DCA 391/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 26th day of November 1998 APPEARANCE/COUNSEL LO Smith for appellant D Tui for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON While this appeal came before me on 26 November 1998, it was adjourned to enable counsel to agree on the form of a request to Dr C Walls for his further opinion and for them to thereafter provide additional submissions. As those matters have now been completed I am in a position to issue a decision. The issue is whether the decision of the respondent dated 11 June 1997 declining the appellant's claim for cover under the Act was correct. 2 The background is that the appellant lodged a claim with the respondent for cover . and treatment expenses in respect of an injury which she said had occurred "over past 18 months. Carrying heavy calendars bags around Auckland & Wellington during course of employment". That application is dated 4 April 1997, being the date of the appellant's first visit to her general practitioner, Dr Dorfling, and the date of injury is recorded as 1 December 1995. The diagnosis made by Dr Dorfling on that form is "RSI(R) shoulder. Continual use of computer mouse. Leading to spasms". The appellant completed the usual gradual process claimant questionnaire on 4 April 1997 in which she stated that the condition had been caused by carrying bags of calendars in which work she was involved every week day over a period of 18 months. She said that she worked full days which involved visiting various customers. At the time the claim was lodged she had ceased the particular employment and in answer to the question of how much time was involved in the activity, the answer was "none now - but find computer totally aggravates condition immediately". She said that the symptoms were "aching after each trip away - for 7 days after, all down right side - arm, elbow, shoulder, neck, headaches and swelling". In that questionnaire she said that she had first noticed the problem in February 1996. The respondent sought information from the appellant's employer, Pictorial Publications Ltd. In answer, the director notified the respondent that it had no record of any accident claim filed by the appellant during the course of her employment with the company. However, she did say: "Ms Moore appeared to suffer during the whole course of her employment from back and vertebrae pain and indeed recorded a considerable amount of time off visiting physiotherapists. She indicated the reason for this pain to be caused by a motor accident or a 'spin' in her car prior to her joining this company. In addition, Ms Moore was made redundant in December 1996, and has lodged a notice of Personal Grievance with this company. I am inclined to regard this ACC claim as spurious, and advise that the company regards the claim as not being work related." The respondent then sought further information from Dr Dorfling who reported on 30 May 1997 that he considered the claim to be a new injury and not related to her previous claims for similar injuries. He said: "Having studied Deniese's clinical notes in depth and having had a long discussion with Deniese it seems as if the symptoms from the first two injuries cleared every time before the next injury occurred. I cannot help but to draw the conclusion that her current symptoms are caused by her latest injury. As the symptoms cleared completely every previous time it seems as if it is not a recurrence of the same injury." The respondent's records indicated lower back, neck, and shoulder sprains or strains had occurred on 8 occasions between October 1987 and November 1996. After receiving that information, the respondent notified the appellant on 11 June 1997 that 3 it declined her claim for cover under ss.7 and 63 of the Act. The reason for declining . under s.63 was that the appellant had not lodged her application for cover within 12 months from the date of injury. The appellant applied for a review of that decision. When the application for review was lodged the respondent sought further information from the employer which still disputed that a work injury claim had occurred. Prior to the review hearing the appellant submitted a report from her then general practitioner, Dr R Loan. In that report Dr Loan recorded the history of events as described to him by the appellant. His impression was: "The symptoms which Deniese has described fit with a diagnosis of a repetitive strain injury, affecting the right side of her neck, shoulder, elbow and wrist. These symptoms were caused initially by her posture, both at her desk and also whilst driving, and then persisted as she continued at this job and also carried a heavy portfolio. Ongoing treatment was required to try to help these symptoms. Unfortunately, despite the diagnosis having been made, no active preventative treatment was undertaken and naturally the problem became worse. It is likely that she would have had to have given up her job anyway, if she had not been made redundant. Exercises prior to commencing work, and during her work, microbreaks, icing and onsite work inspection could certainly have either prevented or at the least partially alleviated her symptoms. Deniese's attendance with similar injuries on 23 April 95, 30 September 95 as well as 22 November 95, would support an ongoing RSI type injury, rather than separate injuries as described by Dr Dorfling, who also has to rely on comments made by a previous doctor. Perusal of these notes show that another visit on 12 October 95 diagnosed as ' cervical neck spasm' would also fit with an ongoing RSI pattern. It is very obvious that the first symptoms occurred in April and as no preventative treatment was undertaken, the underlying muscle injury gradually became worse until Deniese went to Dr Chung on 22 November 95." The appellant was not represented at the review hearing and the employer did not attend but provided a written submission to the review officer which confirmed that the appellant had complained of pain throughout her employment but had never made any formal complaint that it was the result of work related injuries. The employer disputed the appellant's evidence that the calendar bags weighed between 10 and 20 kilograms each but, in fact, were approximately 6 kilograms. The company considered that the appellant's travelling itinerary and administrative or secretarial tasks were not substantial or onerous. The review officer found that the delay in lodging the claim until some months after the appellant had left her employment precluded a meaningful assessment of the tasks which she carried out. The review officer did not accept the appellant's evidence that the work tasks contributed to her injury. The review officer was also concerned that while the medical notes indicated the injury had been identified in November 1995, no claim was lodged until April 1997. The review officer considered that if the dates were correct, the appellant did not lodge a claim until three or four months after she left the employment when she 4 was aware of the problem as early as November 1995, some two months after commencing her employment. The review officer considered that on that basis the respondent was prejudiced in its ability to make a decision as to whether or not the appellant's problems arose in the course of her employment. The appellant has appealed against that decision. Since the review hearing, the respondent obtained a report from Dr C Walls, an occupational health physician. That report which is dated 19 August 1998 sets out the history of the appellant's condition as it has been recorded in her statements and the medical reports. Dr Walls then noted: 'Deniese has worked in a mixture of secretarial/administrative jobs since leaving school. She was a real estate agent for 31/2 years. Her sales job at Pictorial Publications Ltd was of 18 months duration and required a lot of driving. She described herself as being on the road for up to 10 days of each months. Her work days would be 8-9 hours in length and she would work between 5-6 days per week. The balance of her time when not driving was spent in the office doing various administrative functions. She did not feel her computer workstation was of particularly good quality and made particular note of her chair. Currently she is aware of some swelling in her fingers and a numbness and discomfort in her neck. There are no pins and needles. She is aware of some colour and temperature changes in her hands. She does not uniformly have night pain, but has unrefreshed sleep. She gets discomfort when lifting her arms above her shoulders. On examination today she had a full range of movement of her neck, shoulders, elbows and wrists. The right shoulder had a full range of movement although there was some discomfort on the extremes of motion. There were no tender points. Her Phalen's and Tinel's tests for carpal tunnel syndrome were negative. Finkelstein's test was positive on the right side. Neural stretches were negative. There was no sign of any arthritis or arthralgia. Her reflexes were normal. Grip strength was mildly decreased on the right. Currently today Deniese has neck and shoulder pain and there is some evidence of a right de Quervain's tenosynovitis. I have injected the tenosynovitis with Lignocain and cortico-steroid and I hope this will resolve this problem for her. I have encouraged her to markedly increase her exercise and would suggest that if her unrefreshed sleep persists that she consider low dose amitriptyline. She may find TENS useful as a form of pain modulation. This will relieve her from expensive medical providers. In response to your specific questions: 1. What is the injury in this case? Deniese has right arm and shoulder pain of a non specific nature. She does not have a shoulder rotator cuff syndrome. I do not think the right de Quervain's tenosynovitis is a sufficient explanation for her pain. 2. Was this injury caused or contributed to by a specific employment task? 5 I am unable to positively identify specific tasks which would have caused this sort of injury or pain. Deniese did agree that she spent some time phone trapping, but I gather this is on an intermittent basis. There appeared to be nothing peculiar to her job or specific employment task which would give rise to her shoulder/neck discomfort. The use of the computer and the mouse would have been intermittent. It is difficult at this length of time to be able to attribute all her discomfort to intermittent use of this equipment. 3. The specific property or characteristic of her employment tasks which cause or contribute to this personal injury Unknown. 4. Was the property or characteristic present to a material extent in her non-work activities? As I have been unable to specifically identify a characteristic at work, then I do not think this question applies. 5. Is the risk of suffering personal injury significantly greater for persons performing that employment task? I am unaware of other people in the range of duties similar to Deniese's developing these sorts of symptoms. The NIOSH book 'Musculo-skeletal Disorders and Workplace Factors' (1997) summarises the evidence for work caused neck and shoulder disorders as: there is evidence for a causal relationship between highly repetitive work and neck and shoulder disorders there is evidence for forceful exertion in occurrence of neck disorder there is strong evidence that working groups with high levels of static contraction, prolonged static loads or extreme working postures involving the neck and shoulder muscles are at increased risk for neck and shoulder musculo-skeletal disorders Having obtained an occupational history from Deniese I cannot confidently place her in any of these three categories. My opinion is that her condition is not work related. 6. Are Deniese's ongoing problems considered as a result of that injury? No. I have suggested to Deniese that she markedly increase her exercise and return to the workforce. I accept that she suffers considerable discomfort but I am unaware of any interventions that will relieve this discomfort. I think she needs to do the suggestions above, return to work and allow the condition to settle of its own accord." As counsel considered some issues in Dr Walls' report required clarification, the hearing was adjourned to enable counsel to agree on the form of the request. As a result Mr Walls provided a further report dated 17 December 1998 which states: 6 'At the time of my consultation with Ms Moore on 6 August I had available to me the following information: 1. Referral letter from Sarah Scott, Solicitor ACC, dated 9 July 1998 2 . A letter to ACC case manager from Deniese Moore dated 17 October 1997 A letter to ACC case manager from Victoria Publications Lid, dated 29 September 1997 4 A letter from Dr Loan, Napier, dated 16 July 1997 A note to the ACC case manager from The Doctors, Hastings, dated 30 May 1997 6 . A file note from the ACC case manager dated 16 May 1997 7. A file note from ACC case manager dated 16 May 1997 8. M46 from The Doctors, Hastings dated 4 April 1997 9. A note to the ACC case manager from The Doctors, Hastings, dated 4 April 1997 10. Case notes, The Doctors Hastings I noted in the correspondence the estimate by Mr Hooker, Victoria Publications, that the bag weighed 6 kg and Ms Moore's estimates that the bags weighed 10-12 kg each. I noted the estimate that 2 such bags were carried. I noted from Dr Loan's letter that an initial diagnosis of OOS was made in November 1995 attributed to hunching over her desk. Dr Loan's opinion was that 'these were symptoms were caused initially by her posture, both at her desk and also while driving and then persisted as she continued at this job and also carried a heavy portfolio'. Therefore, in response to your specific questions: I had considered the relevance of Ms Moore's carrying heavy sample cases with her condition. 2. In my opinion the carrying of heavy objects in the arms does not give rise to the constellation of symptoms labelled as OOS. 3. I would be of the opinion that, as is commonly reported, once the symptoms were established the carrying of objects, even of moderate weight, becomes increasingly uncomfortable. That is, the action aggravates symptoms but cannot be considered causative. 4. The symptoms and condition that Ms Moore has occurred in people in which no workplace cause can be identified. I think that Ms Moore fits into this category and from the information supplied to me I cannot attribute her condition to workplace factors." While Mrs Smith considered that the late lodging of the appellant's claim was not helpful to the appellant, the respondent could not rely on the fact that it was prejudiced. I do not propose to take that issue any further as I have reached a conclusion based on the medical evidence which makes it unnecessary for me to consider the question of s.63. The issue falls to be decided under s.7(1) of the Act which states: 7 "(a) The employment task(s) performed by the appellant 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 (6) The property or characteristic is not found to any material extent in the appellant's non employment activities or environment; 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." The onus is on the appellant to establish on the balance of probabilities that each of the three aspects of s.7(1) is satisfied. As I have said, that issue falls to be determined on the medical evidence. There appears to have been some misunderstanding between the appellant and Dr Dorfling as to what really was the cause of her problems as far back as on the date of which the original claim was lodged. While the appellant claimed that it was the carrying of the heavy calendar bags over a period of 18 months, Dr Dorfling attributed the RSI problem to continual use of the computer mouse, while Dr Loan suggested that it was the result of her posture when seated at her desk and while driving and later to the carrying of the calendar bags. There is no doubt that the appellant had suffered a series of incidents relating to her back and neck all of which may well have contributed to her condition. In the ultimate I consider that the only specialist involved has provided the Court with a proper assessment of the appellant's problems. In his report on 19 August 1998, Dr Walls was unable to identify a specific employment task which contributed to the appellant's problems. He was also unable to identify a characteristic of her non work activities which could have caused the problem. He also stated that he was unaware of persons undertaking similar work who had developed similar symptoms. When asked more specific details, particularly in relation to carrying of the bags Dr Walls gave very clear and unequivocal answers from which I can only conclude that the appellant has not satisfied the onus on her to establish each of the requirements of s.7(1). The appeal is dismissed. DATED at WELLINGTON this qth day of March 1999 buenadel A W Middleton District Court Judge Dea39197.dec(rdi)