Drake Personnel (NZ) Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 25 2 /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 DRAKE PERSONNEL (NZ) LIMITED of Wellington Appellant (Appeal No. DCA 450/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 20th day of July 1999 APPEARANCE/COUNSEL D J Sweet and B A Harrison for appellant S Nankivell (the claimant) in person C Richards for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant raises two issues in this appeal, being: 1. Whether the claimant has suffered a new work related gradual process injury; and 2 2. Whether the respondent is permitted to apply the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993 to gradual process claims. The facts which give rise to the appeal are that the claimant lodged a claim for cover with the respondent on 24 November 1997 in which she stated that she had 'developed pain in right forearm, elbow due to continual use of calculator & keyboard". The date of injury was stated to be 2 September 1997 and her first attendance with her doctor was 11 November 1997. The claimant's General Practitioner, Dr P Wong, diagnosed the problem as acute tendonitis of the forearm. The appellant completed a gradual process questionnaire form on 17 February 1998 in which it stated that it did not accept that the claimant had suffered a work injury. It submitted that the claimant had a recurring problem for which a claim had originally been lodged in July 1993. The claimant's General Practitioner completed the medical practitioner questionnaire in which he stated that the problem arose from "constant use of calculator". He also noted that attempts to use the calculator less had not improved the condition. He also noted that the appellant had had an episode of right forearm tendonitis in July 1993 which had settled with physiotherapy treatment. Dr Wong referred the appellant to Mr A Thurston, an Orthopaedic and Hand Surgeon who reported to Dr Wong on 8 February 1998: "Thank you for your note about this lady and the pain in her right arm. She certainly has a very tender right tennis elbow and also some tenderness over the common flexor origin but this is really not as dramatic as the lateral pain. She also has some pain in the neck with muscle spasm but she seems able to control this with massage and exercise. In addition she is tender over the supraspinatus tendon and its insertion on the humerus indicating rotator cuff impingement. She is keen to have something done about the elbow so I have arranged to get her into Bowen Hospital in the near future to undertake a formal tennis elbow release and at the same time I will inject the rotator cuff tendon." Dr Wong's diagnosis was "acute tendonitis of the right forearm." It appears from the medical records that the claimant's 1993 injury had been carpal tunnel syndrome associated with tendonitis of the wrist. This condition was treated with carpal tunnel release from which the claimant had had no further problems. Mr Thurston undertook a surgical release of the claimant's epicondylitis at Bowen Hospital. On 3 March 1998 the respondent notified the appellant that it considered that the claimant had suffered a gradual process work injury under section 7 of the Act as a result of which the cost the claim would be attributed to the appellant's experience rating history. In April 1998 the appellant applied for a review of the respondent's decision. 3 After the application for review had been lodged the respondent arranged for the claimant to be examined by Dr K Howard, an Occupational Medicine Specialist. In his report of 14 September 1998 Dr Howard made the comment: "There is little doubt about the diagnosis of Mrs Nankivell's present problems as she continues to exhibit ongoing evidence of a right tennis elbow which has not entirely resolved as a result of the recent surgery earlier this year. There is also evidence of a right rotator cuff problem involving the tendon of supraspinatus in particular and there is also some suggestion of a medial epicondylitis (golfer's elbow). A number of specific questions have been asked in respect of the origin of these problems and I will attempt to deal with these as follows: Mrs Nankivell has described and demonstrated to me her method of working with the calculator in her previous job. In my opinion this ongoing and fairly extensive calculator usage in the manner described is consistent with the onset of both her shoulder and elbow problems. In my opinion, therefore, the major causative factor, as well as being an ongoing contributing factor, has been the nature of her employment. I accept that other factors may well be involved, such as gardening, housework, carrying her shopping and so forth as well as driving, but I consider that these will have been more in the way of contributory factors rather than primary causative factors in her present problems. I am not quite sure what is meant by the term "evidence" in this question, but as I have indicated earlier, the way in which she has used the calculator, with her arm in an extended position and held away from the body and with the wrist slightly cocked, is likely to induce the type of shoulder and arm problems of which she has been complaining. It is impossible to produce absolute evidence, but the way in which she describes her work is fully consistent anatomically with the problems that she has developed. In my opinion the current problems of her elbow and shoulder bear no relation to her previous in 1993 with tendonitis nor do they have any relationship to her earlier carpal tunnel problem. . It would be difficult to specify exactly what non-employment activities have contributed to her ongoing elbow and shoulder problems, although clearly duties around the home, shopping, gardening and similar activities will have their part to play. In addition driving will also have a marked effect in maintaining the symptoms in her right arm although I do not consider this in any sense to have been causative. . The remaining limitations and symptoms have been described earlier. Essentially, Mrs Nankivell continues with ongoing symptoms of a right tennis elbow and to a lesser degree a right golfer's elbow, together with evidence of problems around the shoulder with some evidence of a rotator cuff syndrome. The injection in her shoulder has not resolved the symptoms and in my opinion she should be advised to have a further injection into the subacromial bursa. I think that she would also benefit from some further physiotherapy and an exercise programme to try and increase the range of mobility and pain free movement at her right shoulder. The surgical release of the tennis elbow also failed to resolve her symptoms and this is by no means an unusual situation. In my experience a high proportion of those people who have surgical release of 4 this type of condition fail to gain extensive relief from their symptoms. In my opinion Mrs Nankivell should wear a brace on her forearm, particularly when she is undertaken any work or extensive use of her right arm and she may also find it helpful to use at night. Again I consider that she will find some physiotherapy of use, particularly ultrasound round the elbow and it may be necessary to provide her with a further steroid injection into the common extensor origin. It will be seen from my comments that in my opinion Mrs Nankivell remains with some quite marked limitations as far as the function of her right arm is concerned. I have discussed with her the possibility of giving consideration to some form of alternative employment as I strongly suspect that returning to extensive computer use or the use of a calculator is likely to induce the return of her symptoms or rather, make her existing symptoms worse. I think she should be looking for some other job which would not place this degree of stress on her shoulder or forearm and it might be worthwhile for her to have a session with a vocational counsellor in order to give consideration to her existing skills and aptitudes and what forms of employment would be most suited to her." The appellant was represented at the review hearing which was also attended by the claimant. The Review Officer concluded that on the basis of Dr Howard's report the claim satisfied the criteria under the three stages of section 7. It is against that decision which the appellant now appeals. The appellant was given leave to adduce in evidence an affidavit by Dr B L J Treadwell, a Rheumatologist. In his affidavit Dr Treadwell stated: "At this time, it is not possible to indicate for certainly the aetiology of the rotator cuff tendonitis developing in 1993 in this case. I do not have details of the number of hours the shoulder was held unsupported in a position of abduction prior to the onset of symptoms in 1993, and can only indicate that the cause of the condition is compatible with the work history as Mrs Nankivell presented it to me. The actual cause, however, could well have been multifactorial. I have no evidence of any new injury in 1997. The history of the complaints from a medical viewpoint is consistent with the development of right rotator cuff tendonitis in 1993, followed by healing or at least partial resolution on change of job, with a recurrence in 1997. Clearly I did not examine her following the 1993 injury, but the work history, relating to the posture of her shoulder, as Mrs Nankivell described to me, is entirely compatible with a diagnosis of right rotator cuff tendonitis. I do not consider, therefore, that there is adequate medical evidence to postulate a new injury in 1997. In summary therefore, it is my opinion that the shoulder symptoms which Mrs Nankivell suffered in 1997 and subsequently, must be related to the original injury in 1993. I consider that her recent symptoms must be viewed as a recurrence and not as a new injury." 5 The appellant was also granted leave to adduce in evidence an affidavit by D Baker, a Payroll Supervisor employed by the appellant. In that affidavit Ms Baker set out the nature of the work procedures which she understood had been carried out by the claimant. She did not accept some of the time factors and quantity of work claimed to have been undertaken by the claimant. On the basis of Dr Treadwell's affidavit the appellant submitted that there was no evidence which established a new physical injury in 1997. It was submitted that on the basis of the evidence the claimant's work was of a varied nature which required only limited use of the calculator. It was submitted that there was insufficient evidence to satisfy the criteria of section 7(1)(a) of the Act. It was submitted further that as the claimant had interests in gardening and handcraft, including tapestry, needlework and knitting, these could have been possible causes for her condition. It was submitted also that there was no evidence of the risk of suffering the condition being significantly greater for persons performing the claimant's employment task than for persons not doing so. The appellant then made submissions in relation to the funding scheme provided by sections 100 - 105 of the Act in relation to the premiums payable by employers. It was submitted that gradual process claims should be excluded from an employer's experience rating. As I indicated to counsel for the appellant at the hearing, I did not consider that the Review Officer or this Court had jurisdiction to consider the issue of the funding scheme under sections 100 - 105 of the Act. I gave leave to counsel to provide further submissions in relation to this issue as a result of which the appellant has provided lengthy submissions in support of the contention that gradual process injury claims cannot be taken into account for the purposes of experience rating. Mr Richards submitted that on the basis of Dr Howard's report, it is quite clear that the claimant suffered two quite distinct injuries in 1993 and 1997. He submitted that the 1993 problem was carpal tunnel syndrome with tendonitis of the wrist which was successfully treated by carpal tunnel release surgery while the 1997 problem was tendonitis at the elbow causing epicondylitis, together with a rotator cuff injury. He submitted that Dr Howard was adamant that the 1997 injury bore no relation to the previous injury. In addition, he submitted that Dr Treadwell did not appear to be aware that the claimant's 1993 problem was diagnosed as tendonitis at the wrist associated with carpal tunnel syndrome because he makes no mention of carpal tunnel syndrome or the fact that the claimant had undergone release surgery. Mr Richards submitted further that on the basis of Dr Howard's report the 1997 injury was the result of the appellant's employment task. He submitted further that Dr Treadwell did not oppose that view although he considered the rotator cuff injury could result from a variety of causes but did not the exclude the possibility that it was work related. 6 Mr Richards submitted that on the basis of Dr Howard's report the claimant had satisfied the criteria under section 7(1) of the Act. In relation to the appellant's submissions, regarding the experience rating of gradual process claimants, Mr Richards accepted the position I had outlined at the hearing that I did not consider that the notification in the decision letter of 3 March 1998 that the claim would be attributed to the appellant's work history constituted a decision capable of review. In issues of this nature the Court must be guided by the medical evidence. It is clear from Dr Howard's very full report that he was satisfied that the nature of the work performed by the claimant was the cause of her injury in November 1997 and that this was in no way related to the 1993 problem which was of quite a different nature and it had been surgically repaired. Dr Howard, who is a Specialist in Occupational Medicine, considered the claimant's position in the light of the criteria under section 7(1) of the Act and concluded that she satisfied all the criteria. I agree with Mr Richards' submission that Dr Treadwell does not appear to have been aware of the nature of the 1993 injury and the fact that she had undergone surgery for its release. I agree with Mr Richards' submission that Dr Treadwell does not appear to oppose Dr Howard's findings that the calculator work could have been the cause of the claimant's problem. While the Review Officer did not have the benefit of Dr Treadwell's affidavit, I do not consider that this would have altered his decision because he does not disagree with the very comprehensive findings of Dr Howard. As I indicated at the hearing I did not consider that I had jurisdiction to consider the appellant's submission in relation to experience rating of gradual process claims. The decision letter of 3 March 1998 warns the appellant that as the respondent has accepted that the claimant suffered a gradual process work injury under section 7 of the Act the costs of the claim would be attributed to the appellant's work history Section 89(2) of the Act provides: "Any employer who is dissatisfied with a decision of the Corporation under section 65 or section 197 of this Act may apply to the Corporation for a review of that decision." The issue of what constitutes a "decision" was considered by His Honour Judge Beattie in Hull (249/97) in which he stated: "I find that the respondent's letter of 22nd October was a letter intended to be explanatory of the Corporation's position in the light of the demands being made in the latter of 17 October. ... 7 the statement does not purport to be the judgement or conclusion or resolution of the issue, that was reached in July 1996. At very most it was simply declaratory of the Corporation's position in the light of its earlier decision." His Honour Judge Beattie had considered similar issues in Cadbury Confectionery Ltd (207/98) in which he found that an employer's claims history notification (ECHN) was not a decision capable of review. In that case His Honour said: "... I adopt and affirm the decision made in Hull (Decision 249/97). That notice [ECHN] could not be said to be one which determined the employer's liability for premium. It did not conclude or finalise the matter, it was merely part of a procedure to clarify what would ultimately be the criteria upon which a decision as to premium loading or discount would be made." I consider that the decision letter of 3 March 1998 constituted a decision in so far as it stated that the claimant's injury had been accepted as a gradual process injury under section 7 of the Act and that that was a decision to which the appellant was entitled to apply for a review. I consider that the warning that the cost of the claim could be attributed to the experience rating history was no more than a notification of what might follow. However, that letter does not even constitute an ECHN which is a separate document sent to an employer at a later stage and prior to the issue of an experience rating assessment. The mere fact that the letter of 3 March 1998 indicated that a right of review existed does not mean that the appellant had the right to apply for a review of the notification that the costs would be included in its claims history. I considered similar issues in Nelson Marlborough Health Services (Appelman) (24/99) in which the employer in that case had already accepted that its worker had suffered a work injury but when notified that the cost of the claim would affect its premium liability the appellant challenged the acceptance of the work injury claim. In that appeal the first respondent had issued a later decision confirming its previous acceptance of a work injury but had added to that letter that the appellant had a right to apply for a review. I held that there was no need for the respondent to have issued a decision confirming its earlier acceptance of the work injury claim and that the mere inclusion of the fact that a right of review existed did not entitle the appellant to a review hearing because there was no "decision" which was capable of review. I consider that the only issue capable of review at this stage is the issue of whether or not the claimant suffered a gradual process injury under section 7. The statement that the cost of the claim will be attributed to the appellant's work history is not a "decision" which is capable of review. It is not until the respondent issues an experience rating assessment in which the appellant's claims history is taken into account that the appellant has a decision which is capable of review and then only to the extent that it can challenge the exercise of the respondent's discretion in making that assessment (Waipa District Council v ARCIC (19/97) 1 BACK 464). 8 While I appreciate that the appellant has provided extensive submissions on the question of whether or not gradual process claims should be excluded from experience rating assessments that is not an issue which this Court can consider at this time. It may well be an argument which can be considered when and if the appellant chooses to challenge an experience rating assessment. For the reasons I have outlined, the appeal is dismissed. DATED at WELLINGTON this 8TH day of September 1999 A W Middleton District Court Judge dca450-98.doc (nr)