Lourie v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 169 /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN EDWARD JOHN LOURIE of Dunedin Appellant (Appeal No. Al 528/00) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 23'd day of May 2001 APPEARANCES/COUNSEL P Sara for appellant A D Barnett for first respondent J G Greene for second respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON [1] The issue in this appeal is whether the appellant is entitled to cover for carpal tunnel syndrome arising out of and in the course of his employment. [2] The background to the appeal is that the appellant is a Prison Officer employed by the second respondent at the Dunedin Prison. The appellant commenced work at the Dunedin Prison in October 1981. In 1983 the appellant's work included some work in the receiving office at the prison, but from about May 1991 he was employed exclusively in the receiving office. In 1997 he spent some months on secondment at his employer's head office in Wellington working on a computer programme. The work as a receiving officer involved a large amount of paperwork involving handwriting, and for much of the time the work was done under pressure. 2 [3] In his statement of evidence at the subsequent review hearing, the appellant said that initially the position of the receiving officer required him to work mostly standing at a counter. He said that all the processing of incoming and outgoing prisoners was performed at the counter where all documentation was hand- written. He said that much of the work was in either duplicate or triplicate, and in some instances quadruplicate, this being particularly so for release licences. [4] In his evidence he said that he endeavoured to reduce the workload by streamlining some of the paperwork process, but he found that the more he innovated the more the employer produced additional documentary requirements, much of which duplicated earlier systems. He said that in February 1991 a computer system was introduced which was slow and cumbersome and recorded very little information other than sentence details and a few personal details. He considered that the introduction of that system did not decrease his involvement with paperwork. [5] The appellant also stated in his evidence that the receiving office was originally located in a position which necessitated passing through eight doors which he had to do both ways on several occasions each day. In order to do, so he estimated that there were eight grills in eight passages which, in a normal day resulted in his having to turn lock keys 128 times per shift. [6] The appellant began to develop carpal tunnel syndrome symptoms on the right side in 1996. He continued to work but the symptoms increased while he was on secondment in Wellington where he was involved in extensive computer work. [7] In February 1996 the appellant consulted Mr B F Hodgson, an Orthopaedic Surgeon, who reported to the appellant's General Practitioner that a CT myelogram was normal. In his report of 20 February 1996 Mr Hodgson concluded: "I am not quite sure whether the source of his problem is the neck or the shoulder as I believe he may well have had a brachial plexus lesion at the time of his original injury. I am going to arrange for EMG studies to see if we can pin point where the problem is. I will see him after that and we may have to look at an MRI scan of the neck." [8] On 25 June 1996 Mr Hodgson reported: "I saw this man again today. His nerve conduction studies have shown chronic stable denervation of the supraspinatous muscle indicating the brachial plexus involvement in 1989 has largely resolved; however, it did show that he had carpal tunnel syndrome on the right side and I believe this would explain the pins and needles he has been feeling in the index and middle fingers." [9] While Mr Hodgson suggested surgical intervention the appellant declined that. When the appellant suffered increasing neck and shoulder pain in 1989 the appellant applied for assistance for a carpal tunnel release. The respondent then investigated the background to the application and requested the appellant complete a Gradual Process Questionnaire form. In that form the appellant 3 stated that he suffered "extreme pain in right wrist & forearm, cramping of hand, carpal tunnel problem." He said that the symptoms had arisen between 1996 and 1999 and that he had first consulted his General Practitioner about it between November and December 1999. He attributed the problems to "writing & keyboard work." He said that his employment tasks were "using computer keyboard, writing & filing, locking and unlocking doors." [10] In the Employer Questionnaire the second respondent noted that the appellant's employment tasks of receiving and releasing prisoners involved six to eight hours per day. [11] On 18 February 2000 the respondent declined the appellant's application for cover on the grounds that "the injury must be a medically recognised condition known to be caused by the particular work tasks or environment." The appellant applied for a review of that decision. When the application for review was received the first respondent suggested to the appellant that he should meet with Dr A Drewry on 13 June 2000, to enable her to carry out a workplace assessment and to examine the appellant. It appears that the workplace assessment was completed but the appellant did not attend the appointment. [12] Prior to the review hearing the appellant submitted two reports from Dr G Hancock, an Occupational Physician. In his first report of 15 June 2000 Dr Hancock found that the work in which the appellant was involved had all the properties and characteristics which had contributed to the development of carpal tunnel syndrome. [13] In his second report of 29 July 2000 Dr Hancock stated that he had seen correspondence from Dr Drewry and considered that she had an advantage over him in having seen the appellant's workplace. He considered that Or Drewry may have been given a false impression of the nature of the work undertaken by the appellant at the prison. He then stated: "I would agree that the job of a Prison Officer is not one that readily springs to mind as being associated with carpal tunnel syndrome. continue to assert, however, that the repetitive and forceful wrist movements associated with locking and unlocking doors combined with the requirement for prolonged forceful handwriting as described in my earlier report was the cause of his condition.' [14] In her report of 15 August 2000 Dr Drewry stated: "In Mr Lourie's situation, I was unable to identify any component of his occupation that had a plausible causative link with CTS. Dr Hancock implies that I was given a biased view of Mr Lourie's work tasks by 'management': in fact I visited his workplace and talked to his colleagues (who had no motivation to mislead me); and executed some of the activities that he is required to perform." [15] Dr Drewry concluded: "In summary, the nature, intensity, and duration of Mr Lourie's work tasks as a Receiving Officer are not a plausible cause of CTS. In my opinion, Mr Lourie has confused the cause of CTS with the symptoms. It is expected that he would have difficulty with pinch grip and key-turning movements because he has median nerve dysfunction, but these activities did not cause the nerve compression. The most likely explanation of Mr Lourie's symptoms is that he has median nerve compression due to ageing or some other metabolic phenomenon. Mr Hodgson noted in his 10/99 report that symptoms of CTS had also developed on the left, and this is also more consistent with an 'idiopathic' origin than a work-related or activity-related cause." [16] The second respondent submitted a report by an occupational medicine specialist, Dr D McBride which is date stamped 11 September 2000. Dr McBride had visited the prison reception area. He provided some general information regarding carpal tunnel syndrome and then stated: "As I understand it, Mr Lourie's work as a Prison Officer required him to admit inmates through the reception area in the Prison. He works at a reception work area with a computer, and enters details of the prisoner (sentencing etc) as they are brought in from court or on transfer, in a frequency of about 12 per day. I did not have time to measure up the computer work station according to OSH criteria (and this should, incidentally, be done at some time). But the layout did not appear optimal. Like the rest of the prison, it is cramped. In my experience however keyboard work is not sufficiently forceful (even though repetitive) to cause CTS: indeed office workers have often been used as the referent groups in CTS studies." [17] Dr McBride concluded his report: "The other repetitive activity which he has to carry out is opening and closing grill doors and the doors of cells. He may at times have to lock and unlock four doors to process in (sic) inmate. I tried this myself, and would rate the twisting motion and the force required to do this as light to moderate. My initial impression was that it would not be a high risk activity for CTS." [18] The Reviewer declined the application for review. [19] Prior to the appeal hearing the first respondent obtained a report from Professor Gorman, an Occupational Medicine Specialist, who visited the appellant's workplace. In that report dated 24 April 2001, Professor Gorman conceded that there is evidence of carpal tunnel syndrome in the right, with highly suggestive symptoms of a similar disorder on the left. Professor Gorman then made some remarks questioning Dr Hancock's qualification to comment on the appellant's problem. Professor Gorman concluded his report: "I have reviewed the medical reports provided to you. In his attempt to formulate an occupational basis for carpal tunnel syndrome, Dr Hancock makes several inappropriate assumptions. The first, he assumes that the doors at the prison are heavy and hard to close. This is incorrect and is well described in her subsequent report by Dr Drewry. Second, he 5 assumes that because one of the keys involved is large and heavy that this would increase the risk for carpal tunnel syndrome. Instead, such a large key will reduce the necessary pinch grip, and as described in her letter by Dr Drewry, actually will mitigate against the development of any carpal tunnel syndrome. I note in a subsequent report, that Dr Hancock then argues that Mr Lourie's carpal tunnel syndrome has an occupational basis because of the force that he had to exert on a pen to enable "carbon" copies to be made. Such an action is not a risk for carpal tunnel syndrome. In addition, the keyboard work involved in Mr Lourie's tasks would not be a plausible cause of carpal tunnel syndrome. In summary then, there are major problems with Dr Hancock's aetiological formulation. This is largely due to the fact that he has not visited the workplace and undertaken a task analysis. By contrast, having visited the workplace and undertaken such an analysis, I thoroughly endorse the analyses provided to you previously by both Dr Drewry and Dr McBride." [20] In his submission Mr Sara referred to a schedule of inmate movements for the years 1996 and 1997 which had been submitted in support of the review application. I do not propose to quote the full details except to state that in the year 1996 there were 915 "in" inmate movements and 1, 148 "out" inmate movements. The respective figures in 1997 were 849 "in" and 1,051 "out". Mr Sara further submitted that while Drs McBride and Drewry and Professor Gorman inspected the prison and the work tasks in the years 2000 and 2001, the appellant's problems commenced at a much earlier date and prior to the advent of the computer system, so that their explanations regarding the nature of the work had to be considered in the light of the changes which had occurred in the intervening period [21] Mr Barnett submitted that on the basis of the reports from Drs Drewry and McBride and Professor Gorman, the Court should prefer their opinions as against those of Mr Hodgson and Dr Hancock. A similar stance was taken by Mr Greene on behalf of the second respondent. Decision [22] The issue is whether pursuant to s.33 of the Accident Insurance Act 1988 the appellant has suffered a personal injury which has been caused or contributed to by the nature of his work. [23] I do not consider that the diagnosis of carpal tunnel syndrome is in doubt because this was first identified by Mr Hodgson in June 1996. Professor Gorman concedes that that was the appropriate diagnosis, and this is also confirmed by Dr Hancock. [24] The issue then, is whether or not the nature of the appellant's work as a receiving officer in the Dunedin Prison has caused or contributed to that problem. [25] I agree with Mr Sara's submission that at the time Dr Drewry, Dr McBride and Professor Gorman inspected the workplace, the nature of the work had 6 completely changed from that in which the appellant was involved when the symptoms first arose so that those reports must be considered in the light of Mr Hodgson's contemporaneous reports. I consider further Dr Hancock was correct in his assessment of the position because he accepted the appellant's evidence as to the particular nature of the work. The appellant had clearly identified the intensive handwriting tasks which he had to undertake prior to the installation of the computer system. This involved a considerable amount of work over the period of a day when standing at the reception desk. Numerous forms had to be completed, sometimes in duplicate, sometimes in triplicate and sometimes in quadruplicate, all of which involved heavy hand use so that the copies would be legible. It is evident from the figures supplied as to the number of inmate movements in the years in question, that this work would have been intensive. While Drs Drewry, McBride and Professor Gorman conclude on the basis of studies and articles that the appellant's work as they saw it, was not the cause of the carpal tunnel syndrome, I consider that even though it may not have been the cause, it was certainly a very serious contributor to the problem I agree with Mr Sara that the conditions in the workplace had completely changed by the time that the specialists became involved, and that the CTS was well established by reason of the heavy writing duties required prior to the installation of the computer system. I consider that the problem was further compromised by the number of times the appellant, in carrying out his reception duties, was required to lock and unlock heavy doors. (26] For the reasons I have outlined I consider therefore, that the decision of the first respondent and the Reviewer was wrong, and the appeal is allowed. I conclude that the work tasks carried out by the appellant were responsible for the development of his carpal tunnel syndrome. [27] The file will therefore be returned to the respondent to investigate whether or not the other two criteria under s.33 have been satisfied to enable the appellant to be granted cover for a gradual process injury. There will be costs to the appellant of $1,000. DATED at WELLINGTON this 3 rd day of July 2001 A W Middleton District Court Judge ai528-00.doc(aw)