Fischer v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 202 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ELIZABETH JANE FISCHER of Porirua Appellant (Appeal No. DCA 362/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr E Nielson, advocate for the appellant and from Mr S R Condie, counsel for the respondent and from Ms M Adler, advocate for New Zealand Employment Service, the employer of the appellant, with a request that I issue a decision on the papers. The issue in this appeal is whether the appellant is entitled to cover under the Act for the period 28 May 1996 to 27 July 1996. The appellant was employed by New Zealand Employment Service as an Employment Advisor and lodged a claim with the respondent on 31 May 1996 in which it was stated that she suffered "tension headaches" arising out of her employment. The respondent investigated the claim and on 31 March 1997 and closed its file after the appellant's representative had withdrawn an application for review of the earlier decision. On 4 November 1996 the appellant lodged a further claim with the respondent in which her General Practitioner, Dr K Fitzsimons diagnosed Occupational Overuse Syndrome. The injury was stated to be "increasing 2 neck pain, headaches and tiredness relating to work. Work fulltime at VTU. Pain with work." In that claim it was noted that the date of the injury was 30 August 1996 while the date of the first visit for treatment was 31 October 1996. The respondent notified the appellant that it accepted the claim for Occupational Overuse Syndrome but as the date of the first treatment was stated to be 31 October 1996 section 7(5) of the Act deemed that to be the date of the injury. The respondent requested Dr Fitzsimons to complete the usual gradual process questionnaire which he did on 20 November 1996 and confirmed his diagnosis of Industrial Occupational Overuse Syndrome and stated that the symptoms were neck and shoulder pains. Dr Fitzsimons also stated that the appellant had experienced those same symptoms for approximately two years and had had no problems prior to that time. Dr Fitzsimons also stated that the appellant was a new patient so that the information was based on statements made by the appellant to him. The appellant's employer had arranged for a report from Lissa Judd, an Occupational Medicine Specialist who inspected the work site and provided a report on 18 November 1996. In that report Ms Judd noted that the appellant had been off work from 28 May until 9 July 1996 because of headaches and neck pain and that the appellant considered that the headaches were her initial complaint which had plagued her for approximately two years. Ms Judd's conclusions were: "While headaches may occur as a result of neck problems this seems unlikely in this case, since the neck discomfort has arisen only recently, and over the same period of time the headache problem has diminished. Furthermore, such headaches are often unilateral. Headaches may also occur as a result of unsatisfactory lighting conditions, but would not be expected to be as severe as those described by Elizabeth, and they would usually diminish over weekends, if not overnight. I would conclude that the headaches in this instance were idiopathic, but undoubtedly markedly aggravated by the lighting conditions in the workplace. Bright light sources (such as a window) in front of a VDU user cause eye strain because of the glare. Bright light sources behind the VDU worker (eg a window) cause reflections on the screen. In both circumstances the worker finds the screen difficult to read and has to concentrate harder, or squint, or adopt unusual postures to avoid the visual annoyance." And: "The neck and shoulder pain problem appears to be a direct consequence of poor posture, which in turn is a consequence of ergonomic problems. The workstation should be adjusted so that the chair is the correct height for the desk - allowing the worker to sit with a comfortably straight back and neck in a forward facing position." 3 On 5 December 1996 the respondent notified the appellant that her claim for cover for Occupational Overuse Syndrome was accepted as a work injury. On 14 July 1997 the appellant submitted a further medical certificate from Dr J Law, in which he stated that the appellant had been off work between 28 May and 23 July 1996. In that certificate he said that the reason for her being off work was ongoing neck pains and headaches and his diagnosis was Occupational Overuse Syndrome with neck pain and tension headaches (cervicobrachial syndrome). Dr Law said that that diagnosis was the same condition from which the appellant was suffering in January 1997. On 10 February 1997 the respondent notified the appellant that after considering Dr Law's certificate it considered that her claim for cover should be declined on the following grounds: There is no confirmation that you consulted Dr Laws at the time for which the certificate is issued. You consulted Dr Mccoy at that time. Dr Mccoy provided certificate for the claim which was declined i.e., on 10.6.96 and 26.6.96. Medical information on your current claim (G2818334/002) supports incapacity commencing between August 1996 and October 1996. You were first seen by Dr Fitzsimons in October 1996 - he gives a date of injury of 30.8.96 on the claim for cover (M425439) and the further Medical Certificate dated 28.1.97. Dr Judd, in her report dated 18.11.96, notes problems with neck shoulder and arms for the last two months." On 14 February 1997 the appellant lodged an application for review of that decision. On 3 July 1997 the respondent obtained a report from Mr C W Hoffman, an Orthopaedic and Spinal Surgeon whose conclusion was: "I don't believe we have adequately established her diagnosis. It is quite clear that she has headaches and these may have an underlying cause. She is going to see Dr Glenys Arthur for an assessment on the 7 July. I am sure this will rule out serious neurological cause for her headaches and neck pain. Her skin changes make me think she may have an underlying connective tissue disorder but again she would need to see Dr Andrew Harrison Rheumatologist at Hutt Hospital to have this ruled out. I could find no evidence of an underlying orthopaedic diagnosis. She has features of her problem that are perhaps stress related and there is no doubt there is a chronicity to it which makes treatment difficult. I think she may well benefit from seeing Nerys Parry Health Psychologist. I am therefore reticent to suggest how her work may vary from her current restrictions. I could see no non-injury related factors that are affecting her ability to work. Her restrictions at work have been adequately dealt with by Lissa Judd's report and I would concur that she needs to manage her time better, be in a less 4 stressful environment and be in a better work station layout to try and reduce the need for her to turn her head. I think her work capacity in her current environment is limited. I think her prognosis remains poor if she remains in her same job without some definitive diagnosis or successful input on a therapeutic level. I don't believe any further investigations are warranted but I think assessments by perhaps Andrew Harrison and Nerys Parry may help in resolving this problem." The appellant's General Practitioner then referred the appellant to Mr A Harrison, a Rheumatologist whose report of 13 August 1997 concluded: "Ms Fischer's symptoms are consistent with a diffuse neuromuscular variant of occupational overuse syndrome and the term cervicobrachial syndrome could accurately be applied. In addition, there is evidence that she has bilateral carpal tunnel syndrome and anatomically defined abnormalities such as this also fall within the category of occupational overuse syndrome. She describes the onset of symptoms in 1994 during a stressful time at work during which her employer she says, was not very supportive. Poor employer/employee relations is known to predispose to the development of occupational overuse syndrome. It is likely that the headaches and the upper limb symptoms were related to her work environment, both through stress and ergonomics." The appellant gave evidence at the review hearing as a result of which the Review Officer said: "The question in this review is whether Ms Fischer was off work from 28 May 1996 till 23 July 1996 due to headaches or to neck pain. The headache claim for which she had a medical certificate from Dr Mccoy was declined by the Corporation. Dr Law, who was Dr Mccoy's locum, wrote a backdated medical certificate for OOS. He had not seen Ms Fischer at the time. I accept that Dr Mccoy may have misdiagnosed the OOS problems that Ms Fischer had. That doesn't mean, however, that Ms Fischer did not have tension headaches as well as a separate OOS condition. What is the key in this review, however, is the timing of these symptoms and whether they were the reason for the incapacity between May and June 1996." After referring to Dr Judd's report the Review Officer concluded that: "The conclusion I come to from this report is that the headache and OOS problems are separate and that the medical evidence does not support Ms Fischer being incapacitated from OOS for the period of 28 May 1996 to 23 July 1996." It is against that decision which the appellant now appeals. 5 In support of the appeal the appellant has submitted a further report from Mr Harrison dated 29 January 1998 in which he has given as his opinion: "It is my opinion that in 1994 Ms Fischer developed two problems which were both the consequence of her work place. The first was tension headache for which she sought medical help. The second was a work-related upper limb disorder which has since been diagnosed as occupational overuse syndrome. It is highly likely that both these problems were the consequence of poor lighting and posture and inadequate ergonomic considerations in the work place. From the information that she has given me, both these problems developed in 1994. Tension headache and occupational overuse syndrome are far from mutually exclusive. They often co-exist." In his submissions Mr Nielson states that while the Review Officer has accepted that Occupational Overuse Syndrome existed during the period of the appellant's incapacity between May and July 1996, the two conditions cannot be separately based. He submitted that it is likely that the appellant would have had a successful claim for the headaches which arose out of her work related activities but that as she was experiencing the Occupational Overuse Syndrome symptoms at the same time, she has pursued that claim but it could be argued that her entire period of incapacity should be treated under that claim. He submitted that this is supported by Mr Harrison's conclusion that "tension headache and occupational overuse syndrome are far from mutually exclusive. They often co-exist." On behalf of the respondent Mr Condie submitted that by reference to section 7(5) of the Act the date of injury for claims to personal injury arising out of gradual process is the date upon which the appellant first received treatment for that personal injury which has resulted in the incapacity. As the original claim in respect of tension headaches did not proceed the claim, the subject of the appeal flows from Dr Fitzsimons' diagnosis of Occupational Overuse Syndrome for which he first provided treatment on 31 October 1996. Mr Condie submitted that, in addition, while the appellant suffered tension headaches since 1996 the medical evidence does not support her claim that the tension headaches are part of the broader Occupational Overuse Syndrome condition. Mr Condie submitted that on the balance of probabilities the medical evidence did not suggest that the cause of the appellant's incapacity between 28 May and 23 July 1996 was the result of Occupational Overuse Syndrome which is the personal injury for which she has been granted cover. Ms Adler, on behalf of the appellant's employer, submits that the respondent's primary decision was correct and that the decision of the Review Officer should be upheld. The evidence clearly establishes that the original claim for tension headaches was abandoned by the appellant and was replaced by the Occupational Overuse Syndrome claim supported by Dr Fitzsimons' certificate of 31 October 1996. Both Ms Judd and Mr Harrison agree that tension headaches and Occupational Overuse Syndrome can often co-exist with the result that they can be treated as two separate complaints rather than the result of the same complaint. The original certificate in relation to the appellant's first claim stated that she suffered tension headaches and not make any reference to the fact that it was a result of Occupational Overuse Syndrome. Ms Judd took the view that the period of incapacity between 28 May and 23 July 1996 was caused by tension headaches and this is, of course, supported by the original certificate. The matter only became complicated by Dr Law's subsequent certificate that the appellant's incapacity between 28 May and 23 July 1996 was caused by Occupational Overuse Syndrome. His opinion, however, is in direct contradiction to the very clear medical evidence from the specialists. Furthermore, there is some doubt as to whether Dr Law examined the appellant at the time of that incapacity because his certificate was completed some time later on the basis of the appellant's statement made to him. I therefore must conclude that on the medical evidence there is no support for the appellant's claim that the period of incapacity between 28 May and 23 July 1996 was as a result of Occupational Overuse Syndrome rather than tension headaches which can, on the evidence, co-exist with Occupational Overuse Syndrome. Accordingly, any claim for cover which may be available to the appellant can only arise following her attendance upon Dr Fitzsimons for treatment on 31 October 1996. The appeal is therefore dismissed DATED at WELLINGTON this 15 day of September 1998 buuuddub A W Middleton District Court Judge dc362-97.doc (nr)