Dunlop Industrial v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 112 197 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN DUNLOP INDUSTRIAL Appellant (Appeal No. DCA 295/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of May 1997 APPEARANCES D A Rennie for appellant A R Davie for respondent DECISION OF JUDGE D A ONGLEY . This appeal concerns proof of a gradual process work injury. The claimant began working for the appellant company in May 1993. A claim for cover was lodged with the Corporation on 4 October 1994 describing "pain left neck and shoulder" due to workplace computer work and desk position. The claimant was aged 25. Before commencing work with the appellant she had worked for Wire Makers Limited in Christchurch for about five years as a clerk handling accounts payable and wages. Before attributing the claim as a work injury in the employment of the appellant, the Corporation also requested Wire Makers Limited to complete a questionnaire. The answers indicated that the appellant had complained about a similar condition while employed by Wire Makers Limited, and that her sitting posture was considered to be a - 2- cause. The company had made furniture changes and elevated her desk to a better ergonomic level. The claimant was physically active in her leisure time, including aerobics, tramping, netball and membership of a gymnasium. The appellant did not accept that the claimant's condition was caused by her employment, particularly because of the lack of any complaint, the absence of any obviously attributable work activities, and the difficulty in linking her symptoms with a work activity to the exclusion of non-work activities. The Corporation made further inquiries of the claimant to clarify the nature of each of her non-work activities. A file note recorded a recommendation by Corporation staff for an x-ray to be obtained but that was not followed up. The Corporation obtained an opinion from Dr John Alchin, occupational physician. Dr Alchin in a letter of 4 April 1995 recorded the claimant's history of work activity from her leaving school in July 1985. He noted that she first worked as a receptionist for several years and then commenced work for Wire Makers where she worked full-time for five years. In relation to her employment at Wire Makers he noted only that she used a heavy drawer to her left which she had frequently pulled in and out for storage of accounts. He noted that in May 1993 she commenced work for the appellant and she spent about 40% of her time handling telephone calls. Her neck pain symptoms had occurred gradually while at Wire Makers from about the end of 1991. The discomfort was mild and she attended physiotherapy and obtained advice on exercises and postural correction but without achieving any success in resolving her intermittent pain which did not really cause a problem for her. Her symptoms worsened within 6-8 months of commencing work with the appellant. It is significant for the appellant that her history, as related to Dr Alchin, did not connect the pain with any particular employment activity with the appellant although she described some of her employment tasks to Dr Alchin. She noticed increased frequency of pain and a movement laterally to her upper and middle left trapezius region. She attended her doctor on 30 September 1994 and obtained physiotherapy treatment which did not really seem to help. In January 1995 she attended Sports Med Physiotherapy where she was given exercises and massage, and was told to stop all her sports. She noticed some improvement, having up to two pain-free days at a time. After having a desk adjusted and performing stretching exercises with work pauses she obtained brief relief of symptoms for up to 15 minutes. Dr Alchin . commented as follows: "DIAGNOSIS I believe that this is most likely to be a regional muscle pain syndrome of her neck, or Myofascial pain syndrome. This can be otherwise called tension neck syndrome. RELATIONSHIP TO HER WORK The history here was not clear cut. The current condition began, albeit mildly, at her previous employment, but has worsened during her current employment. The only suggestion that it is work related comes from the history that the initial pain - 3 - was worse on work days, and worsened over the day at work. There was no detectable reason why symptoms should be present on the left when she is right handed, except possibly that at Wire Makers she had the heavy sticky drawer on her left side. But she cannot recall that this actually initiated pain. So there is a weak but not overwhelming work related pattern to her pain. However, neither is there a clear pattern of symptoms being caused by sporting activity. Some sports have no effect on her pain, while some (netball and gym) worsened the pain. In addition pain had improved this year when all sports had stopped, but tramping did not seem to worsen the pain. Certainly her recent flareup, causing the worst pain this year so far, was caused by a fall off her mountain bike. In summary this is not clear cut, but there is certainly some suggestion that it is work related." There was nothing conclusive in Dr Alchin's opinion of work causation. The suggestion of a work-related cause was apparently tenuous, bearing in mind that no particular work task was identified as a possible cause. The Corporation then declined cover in a letter of 10 May 1995, and the claimant applied for review of the Corporation's decision. The claimant then obtained an opinion from Dr W E D Turner, specialist in occupational medicine. Dr Turner essayed a description of her work tasks as involving keyboard and writing connected with accounts payable averaging 4-5 hours per day, including 2-3 hours handwriting, the remainder of her time being spent answering the telephone, filing, copying and moving about. She said that the work station was somewhat unsatisfactory, the desk and screen being too low, and paper work being viewed flat on the desk with a tendency to look to the left hand side. She thought that cross-stitching at home had aggravated her neck problem when she did that activity for two hours every few months. She had also experienced aggravation in one session at the gym. Dr Turner's opinion was as follows: "This patient in my view has developed a type two constrained posture occupational overuse syndrome affecting initially her neck mainly the splenium and semi-spinalis muscles which provide a checkrein function to the head and secondarily the scapular elevators, deltoid and forearm extensors and flexors. I think this has arisen primarily through prolonged downward gaze postures especially with rotation to the left together with untoward ergonomics within her work environments resulting in shoulder raised postures. In terms of further management in my view she needs now to have time off work as well as attention to her work environment particularly intrinsic ergonomics or working technique. She also needs stress management for which she is currently taking Prothiaden and a cool and stretch myofascial release regime directed initially to the neck and shoulder muscles then down the arms to the forearm flexors and extensors. Clearly all physiotherapy interventions to date have not been effective and she now needs to have an effective standardised intervention. In the light of her stage three pain problem she needs time off for application of the cool and stretch regime. I think there is compliance with all three subsections of Section 7 wherein the work activities are the primary cause of her problem and - 4 - the risk of developing her problem is significantly greater from work than non- work activities." Before the review hearing, the Corporation's review advocate requested an opinion from the Corporation's medical adviser, Dr Kevin Morris. Dr Morris considered, on balance, that the "constraining postures" implicated in the claimant's condition did not appear to be present to any material extent in her non-work activities. However, he expressed a reservation about the requirement of s 7(1)(c) of the Act in that her work task did not appear to pose any greater risk for persons performing that employment task in that environment than for persons who do not perform that task in that environment. The relevant parts of s 7 are set out below for reference: 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. The review hearing was held on 24 October 1995 and was attended by the claimant and a representative of the Corporation. It should be mentioned that the claimant provided a "confidential statement" from another employee. Any material placed before a Review Officer to consider in the course of his or her decision must be available to all parties. The statement related to employment issues and has no direct bearing on the questions to be decided at the review or on the appeal. As it happened, it was read into the record so problems attaching to the purported confidentiality were thereby avoided. The Review Officer focused on Dr Turner's opinion that the claimant's type two constrained posture occupational overuse syndrome had arisen primarily through her . prolonged downward gaze postures with rotation to the left, with untoward ergonomics within her work environment, and was satisfied that her work task had a particular property or characteristic which contributed to her condition. He was satisfied that the property or characteristic identified in her work could not be said to be found to any material extent in her non-employment activities, and went on to say that it is quite clear from Dr Morris' comments that if Dr Turner's report is accepted then the claim comes under the third criteria. The Review Officer set out the relevant parts of the evidence in the following way: . 5- "Mrs Torrance said that she developed a neck pain although it was more to the left of her neck and in September 1994 she found the pain intolerable and the pain was always in the same place and occurred after work and during the weekends. Mrs Torrance confirmed she was still at Dunlop Industrial and explained how at times she had seven boxes of invoices which necessitated her getting down onto her hands and knees but that her employer had now got a trolley so she could deal with them while sitting. Mrs Torrance said that she now took breaks and utilised micro-pauses. Mrs Torrance explained that the system had been changed in the last twelve months to create a more even flow and at times she received assistance from the receptionist. Mrs Torrance said this had improved her situation somewhat although the discomfort was now present on her right hand side as well. Mrs Torrance said that in April 1995 she went overseas for a month and she was fine but when she returned to work in May the problems started again. Mrs Torrance stated that Occupational Safety and Health had advised her that the height and placement of her work environment was not right and this led to getting a new desk, new chair and paper return such that she worked in front of her rather than to the left hand side and there was no looking down." He then found all three elements of s 7 were established to his satisfaction. Those findings were made by the Review Officer after hearing oral evidence from the claimant who had described her work task and environment at some considerable length and had been questioned by the Review Officer. Dr Turner considered that the claimant's condition was a recognisably medical condition. Its nature and origin are no doubt debatable, but it could not be said that the medical reports and the oral evidence were insufficient to reach a decision on the essential questions as a matter of probability. Dr Turner's evidence did not exclude the possibility that the onset of the condition may have occurred in the claimant's previous employment, in fact he referred to her "work environments" which appeared to include her work for Wire Makers. Nevertheless he plainly considered that the claimant's work conditions in the employ of the appellant contributed to the condition. In my view, the Review Officer was entitled to reach the conclusions which he did on the available evidence. There was sufficient evidence for him to consider that the work environment at Dunlop not merely provoked symptoms of a pre-existing condition, but was a contributing cause of that condition. There was also sufficient evidence for the Review Officer to find that the claimant's non-work activities did not involve a property or characteristic similar to the problem that was . linked with her constrained posture occupational overuse syndrome. After receiving the Review Officer's decision, the appellant's advocate wrote to the Corporation about two matters, first a question of disclosure of documents on the Corporation file, and secondly the suggestion that an x-ray might help to determine whether there is any fracture or structural defect to account for the claimant's symptoms. The question of disclosure related only to documents coming into existence after the Corporation had complied with a request for disclosure, and those documents were available at the hearing if the appellant had been represented. The second question was raised at the hearing and mentioned in the Review Officer's - 6- decision. The transcript indicates that the claimant wanted to get on and have the review decided without further delays. In the circumstances, it was appropriate for the Review Officer to continue rather than adjourn the review in order for x-rays to be taken and evaluated On the hearing of the appeal, the Corporation sought leave to introduce as further evidence a letter from Dr Bremner, assistant corporate medical adviser, concerning his opinion that there would be no purpose in obtaining an x-ray of the claimant's cervical spine because spondylosis resulting from ageing is unlikely in a 28 year old. There had also been a suggestion that an x-ray might disclose whether a fall from a bike was implicated, however, examination of the file indicates that the fall occurred in about March 1995, well after the symptoms developed. I do not consider that there are deficiencies that suggest the need for further medical inquiry including x-rays. Dr Turner's report was available to the appellant some months before the hearing so the appellant had time to consider requesting a further medical examination. While there must frequently be some doubt in cases of this kind, each case depends on the extent and quality of the evidence available. In this case, I find that the Review Officer considered the relevant material and reached reasonable conclusions on the evidence. The appeal is therefore dismissed. DATED at WELLINGTON this 6 day of June 1997 D A Ongley District Court Judge