Rapson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 255 199 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 ERIC RAPSON DCA 36/99 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND ALLIANCE GROUP LIMITED T/A WAITAKI LEATHERS Employer HEARD on the 15th day of August 1999 APPEARANCES Ms M Watson, advocate for appellant Ms L Rice, counsel for respondent Dr D J Hailes, counsel for employer RESERVED JUDGMENT OF JUDGE M J BEATTIE 2 The issue in this appeal is whether the respondent was correct to decline cover to the appellant in respect of a lumbo-sacral disc protrusion which the appellant claimed was a gradual process injury arising out of his employment with Waitaki Leathers. The facts which are relevant to this appeal are as follows. The appellant is aged 42 years and is a person of large stature being 6' 8" in height and weighing 18 stone - the medical reports on the appellant seem to prefer imperial measurements rather than metrics. In August 1996 the appellant lodged a claim for cover with the respondent, the appellant's GP Dr Scott stating in that form that the diagnosis was " lower back pain and mid thoracic back pain. Sore elbows. All seem to be related to a machine at work". At the time of this claim the appellant had been employed by Waitaki Leathers, a division of the Alliance Group Lid, for some 17 years. The appellant's claim was treated as a gradual process claim and further particulars were sought both from the appellant's GP and his employer. The employer noted that the appellant carried out a variety of manual jobs in the course of his employment, all involving the handling or machine processing of lamb skins. His GP stated that he had had a back problem before related to the use of a pickle flesher machine. The doctor did not know of any non work activities which could have contributed to the development of this condition. It seems that no further progress was made on the claim because the appellant did not return the claimant questionnaire. It seems as though it was misdirected in the mail and matters did not get on foot again until March 1997 when the appellant was referred to Orthopaedic Surgeon Bruce Hodgson by his GP for a report. 3 In Mr Hodgson's report of 20 March 1997 he notes that the appellant had had "this back pain for about 15 years and had been working in the tannery for 17 years". The appellant told him that a year or two after he first started there he hurt his back on a toggle drive machine and that since that time he suffered from bouts of discomfort and the back pain was more or less constant. Mr Hodgson noted that although the appellant was very tall and of big build he was nevertheless of normal proportions and there was normal alignment of the cervical, thoracic and lumbar spine. Mr Hodgson completed his report by stating: I am not sure what the cause of his low back pain is. It does indeed sound mechanical and I will arrange for a technetium bone scan to exclude any stress fractures in the lumbar spine. As regards the right elbow, he undoubtedly has a right ulnar neuritis and we need to get nerve conduction studies to confirm this. I will arrange for both these tests and see him when these are available. A subsequent bone scan was normal. A nerve conduction test report dated 18 June 1997 said: There is no neurophysiological evidence of a lesion of the right ulnar or median nerves. The appellant's claim was then referred to Dr M Sinclair, one of the Corporation's medical advisors, and he noted that 80% of people in the community get mechanical back pain and that it was his opinion that the appellant's mechanical back pain did not fulfil section 7(1)(c). On the basis of that advice the respondent did, on 26 May 1997, advise the appellant that cover would be granted in respect of the epicondylitis of his right elbow but not in respect of the lower and mid thoracic back pain. The appellant sought a review of that decision. At the same time he returned to work at Waitaki Leathers on part-time light duties. A CT scan was obtained of the appellant's spine and Mr Hodgson reported on 4 August 1997 as follows: The CT scan had shown a mild central to left sided disc protrusion at the lumbosacral junction abutting the left SI nerve root but not frankly compressing it. The L4/5 disc showed a milk disc bulge. I would have to state the quality of the CT scan was very poor, as Mr Rapson is a very tall man of large build, these findings are not absolutely accurate and I believe an MRI scan of the lumbar spine would give us more valuable information. Currently I would state Mr Rapson's back pain relates to the lumbo-sacral disc protrusion. I believe his current restrictions are solely related to the accident and do relate to his work at Waitaki Leathers. He had been working for 17 years and has had back pain for 15 years. Currently I believe Mr Rapson needs further investigation with the MRI scan of both the cervical spine and the lumbar spine. The appellant was then referred to Dr Daniel Ching, Consultant Physician and Rheumatologist. In his report of 4 September 1997 he states as follows: Eric has got localised spinal pain, with a full range of movement of his cervical spine and no tenderness today. The cervical spinal pain started approximately three months ago spontaneously, and I do not think this is ACC's responsibility. The pain in the cervical spine is localised and I don't think there is enough here to investigate him for cervical disc lesion. At any rate, even if he did have a cervical disc lesion, I do not think this is ACC's responsibility. Disc protrusion in the cervical spine is quite common and usually occurs spontaneously rather than secondary to trauma. I think he has got mechanical low back pain, although the results of the MRI scan of his lumbar spine might indicate otherwise. I would be interested to know the results of the MRI scan done yesterday when you do get the results. I think his back pain has been brought on by his poor posture and his very abnormal way of lifting things off the ground or anything from below waist height. This is simply because he is unable to bend his knees to lift objects. I think this probably relates to his great height. However, the inability to rise from a squatting position means myopathy needs to be excluded. While I can understand his back pain can be exacerbated by heavy lifting at work, I think it has largely arisen as a result of the mechanical nature of his height and inability to bend his knees when he is lifting objects. After receiving the results of the MRI scan Dr Ching wrote: Although he has a left para-central disc prolapse, this is not compressing the left SI root and he did not have any corresponding neurological signs. The significance of this is therefore uncertain. My opinion therefore remains the same as my original report. The results of the MRI scan were also referred to Mr Hodgson and he provided a further report to the appellant's GP on 25 September 1997 wherein he stated as follows: There is a small left para-central disc protrusion at the lumbosacral junction displacing the left SI nerve root but not obviously compressing it. I have told Mr Rapson that we could help him with his low back, we would need to carry out a discectomy and interbody fusion at the lumbosacral disc, and I believe this would preclude him from working in the tannery in the future. The final medical report was that obtained by the appellant from Mr Burn, Orthopaedic Surgeon, who reported to the appellant's advocate on 23 June 1998. Mr Burn stated: The working diagnosis is an annular tear with discogenic back pain from L4/SI disc. I feel that this gentleman has discogenic back pain with some associated facet joint pain and this is predominantly the likely place of his ongoing back ache, being low central with radiation to both hips. With regard to the injury and whether it is in fact an ACC matter one can only give an opinion and say that over the years of twisting and pulling at his job this must have contributed significantly. There has been nothing else that we are aware of in his past history which could be cited as the cause for his L5/SI disc degeneration. He is at this stage 42 years old and his pain therefore would have started when he was in his 37th year again lending weight to the fact that the LS/SI disc is likely to be the cause of his pain. All these reports were submitted to the review hearing. In his decision dated 22 December 1998 the Review Officer noted that the appellant had given variable accounts as to when the injury occurred or when he first noticed the onset of symptoms. In the employee questionnaire he had said that the onset of symptoms was in August 1996, he told Mr Burn that the lower back pain began at around the age of 37, that is in 1994, whereas he had told Mr Hodgson that the thoracic pain began 15 years ago. In those circumstances the Review Officer did not place great reliance on Mr Burn's report, as had been urged by the appellant's advocate, he noted that Mr Burn did not have reference to the previous specialists' 6 reports. In those circumstances the Review Officer found that the appellant's back pain was mechanical in nature and that the test of section 7(1)(a) could not be satisfied. Furthermore he found that the appellant could not satisfy the test in section 7(1)(c), the medical evidence indicating that mechanical low back pain is common in the community with 80% of people suffering from it. The Corporation's decision to decline cover was thereupon confirmed. For the purposes of appeal to this Court a further medical report was obtained from Mr Bishara, Consultant Neurosurgeon. For the purposes of his examination and report Mr Bishara had copies of the reports of Messrs Hodgson, Ching and Burn as well as a Functional Capacity Evaluation which had been carried out by Margaret Harp, and he also had a copy of the review decision. In his report Mr Bishara noted that the appellant was rather vague and uncertain about events relating to his condition, particularly about dates that they took place. However the appellant did indicate to him that he had been suffering back pain ever since the incident with the toggle drier. Mr Bishara gave as his opinion that it was possible that bending, especially in such a tall person, twisting, pulling and lifting at his work over the years had contributed to the onset and progression of the degenerative changes which had been noted both in his lumbar and cervical spine. The appellant's entitlement to cover is governed by section 7 of the Act which states as follows: 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 7 (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. In support of the appellant's claim Ms Watson submitted that the evidence established that the appellant had suffered intermittent back pain since the toggle drive incident and that this back pain was due to the repetitive bending and twisting required in the carrying out of his normal work tasks. She submitted that the personal injury suffered was that of a disc protrusion and she submitted that the reports of Mr Hodgson and Mr Burn supported the contention that it was the work tasks that would have caused or contributed to that injury. Ms Watson submitted that there was no evidence that any non-employment activities had contributed to this injury and she submitted that any person required to lift heavy wet sheep or lamb skins from the floor to another height whilst twisting is likely to suffer back injury and that the risk of a back injury in those circumstances is greater than for persons who do not carry out those work tasks requiring that repetitive lifting, thereby satisfying the requirements of section 7(1)(c). Ms Rice, counsel for the respondent, submitted that the weight of medical evidence was that the appellant's condition was that of simple mechanical back pain rather than damage caused by overuse or trauma and that as such there was no evidence to establish that it was a characteristic of the appellant's employment as opposed to it being something which can and did occur spontaneously. Counsel submitted that the facts of this matter did not establish that the criteria required to satisfy section 7(1)(a)(b) or (c) had been made out. In particular it was submitted that the type of complaint that the appellant had was one which was experienced by a large sector of the population and could not be attributed to the appellant's employment. 8 Mr Hailes, counsel for the employer, submitted that there was evidence that the appellant's condition was as a consequence of degenerative change, that had not been caused by the work tasks, even though the work tasks may have been found to exacerbate the condition. He further submitted that on the evidence of Mr Bishara it was only a possibility that the work tasks which involved bending, twisting and lifting would have contributed to his condition, but even then he only considered that circumstance would have contributed to the onset and progression of degenerative changes. He submitted that in those circumstances there was not a causation factor, but rather only an exacerbation factor. Decision The appellant's claim for cover is one which relies on a gradual process as opposed to a particular incident or series of incidents to establish the personal injury. There is no doubt that the appellant's condition has occurred and continued during the time of his employment with Waitaki Leathers and it is equally clear that his employment tasks included bending, lifting and twisting. The medical evidence establishes that the appellant has a disc protrusion at the lumbo- sacral junction. The specialists are equally clear that the appellant's pain, which is the symptom of his condition, is mechanical low back pain. Mr Ching advised that this pain had been brought on by his poor posture and the very abnormal way of lifting things off the ground or anything from below waist height. The reason for this being his inability to bend his knees when lifting objects. This same limitation was identified by Mr Hodgson. If that is the case then clearly the appellant's method of lifting in the course of his employment must have played a part in the condition that he complains of. This is certainly the opinion of Mr Burn and Mr Hodgson, and in the case of Dr Ching I find it can be assumed from the statement that he made when he said "I think it has largely arisen as a result of the mechanical nature of his height and inability to bend his knees when he is lifting objects." 9 When that medical opinion is set against the fact that the appellant has complained of back pain for some 15 of the 17 years that he has been employed doing the type of tasks which have involved bending, twisting and lifting, I find that on the balance of probabilities that the appellant's employment does have a property or characteristic which has caused or contributed to his personal injury. I find that the test of section 71 (a) has been satisfied. In the particular case of this appellant it may be that his extreme height, coupled with the physical inability to bend his knees when lifting, thereby creating an unusual posture for lifting, has been the reason for him developing this condition. The fact that he is of the physical proportions that he is cannot be a disqualifying feature by simply saying that if he had been a person of ordinary height and with the ordinary physical ability of bending when lifting or twisting he would not have put his back in jeopardy. That is no answer and the unusual features of the appellant's stature cannot be a disqualifying feature and is a circumstance which plays no part when determining whether the provision of section 7(1)(a) have been met. Turning to section 7(1)(b) of the Act, I find that the medical evidence equally discloses that the appellant's posture when lifting anything from a low level is a manoeuvre which he carries out without bending his knees and which therefore puts strain on his back. This was identified by Dr Ching when he stated: One of the reasons he is getting a lot of back pain from lifting is simply because he bends his spine to lift rather than bend his knees. If he bends his knees, he is unable to get up. He would need help or climb onto a chair to get up... . He also has a poor posture and admits to sitting in a slouching position most of the time possibly because of his height. Further on in his report Dr Ching indicates that there is a high incidence of mechanical low back pain in tall people. In so far as his non employment activities are concerned Mr Bishara noted that the appellant had told him that his pain was worse after physical activity such as mowing the lawn or digging potatoes out of the garden. 10 Whilst there is no evidence that the appellant had any particular non employment activity, it must be accepted that incidents of lifting and twisting can occur in the ordinary everyday activities of a person and this present case I find falls into a category where the appellant, who has the initial onus upon him, would need to establish that the particular characteristics which were found in the employment tasks were not those that would be found in everyday life. In the present case the evidence would tend to suggest the contrary proposition and therefore I find that on balance the appellant has not discharged the onus which is upon him to satisfy section 7(1)(b). In the event that the finding above should be found to be wrong I turn to consider the question of section 7(1)(c). Again the Court has not been provided with any affirmative evidence that the particular property or characteristics which have been identified as causing of or contributing to the appellant's low back pain are in a significantly higher risk category than for persons in general who are not involved in the appellant's work tasks. Indeed the evidence is that the type of injury of which the appellant complains, mechanical low back pain, is said to be something that is suffered by 80% of the population at some stage. Again the inference must be had that this particular condition can be suffered in a myriad of ways and wholly unconnected with the employment task carried out by the appellant. In considering whether the criteria in section 7 have been made out, it must be borne in mind what the underlying philosophy of that section is. This question was considered in an appeal to the High Court in B v ARCIC Dunedin Registry M121/98 when His Honour Justice Pankhurst stated: The purpose of section 7 is to prescribe when a particular type of personal injury, namely caused by gradual process, is established. The essential focus of the section is upon causation. Hence it begins "personal injury shall be regarded as being caused by gradual process... only if" then followed the three cumulative statutory preconditions which must be satisfied. First that the employment task has a particular causative property or characteristic. Next that such property or characteristic is not materially found in the person's non employment activities. Third, that persons performing the particular 11 employment task are known to be at a significantly greater risk of suffering the injury in question. It follows that the onus upon a claimant is a particularly heavy one. No doubt the intention of Parliament was to ensure that personal injury, said to be caused by employment-related gradual process, would only be compensated in clear cases. Where injury may be attributable to workplace effects but also to other non work activities, causation would not be established. Likewise unless there was a known significant risk to persons performing the employment task, the case will not be recognised. Having regard to that reasoning I find that the evidence before this Court does not establish a clear case insofar as satisfying section 7(1)(b) and (c) is concerned. The very nature of the injury is one which has difficulties in restricting it to the appellant's employment tasks. The medical evidence, I find, is on balance against the provisions of (b) and (c) being satisfied. Whilst it may be unquestioned that the nature of the appellant's employment did cause or contribute to his condition, it cannot be said that it was so to the exclusion of non employment activities, or that the particular injury was one which had a significantly greater risk of being suffered by a person carrying out the employment tasks required of a tannery worker as opposed to persons who were not so employed. For the foregoing reasons therefore I find that the appellant's claim for cover has not been made out and therefore the decision of the respondent to decline cover was correct. This appeal is therefore dismissed. DATED at WELLINGTON this /ozz day of blewher 1909 M J Beattie District Court Judge 36.99.Rapson.doc.