Wilson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 110 /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 ERICA MAY WILSON of Warkworth Appellant (Appeal No. DCA 436/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from both the appellant and counsel for the respondent with the request that I issue a decision on the papers. The issue on appeal is whether the appellant is entitled to cover under the Accident Rehabilitation and Compensation Insurance Act 1992 for a gradual process injury diagnosed as plantar fasciitis. The appellant and her husband were the proprietors and operators of a cafe. On 23 February 1998 the appellant lodged a claim for cover with the respondent on the grounds that she had suffered plantar fasciitis through being continuously on her feet in the cafe for approximately nine hours per day. The appellant was requested to complete an occupational overuse questionnaire and, as being self-employed, she was also requested to complete the employer questionnaire. The appellant's General Practitioner, Dr Soysa, considered that the appellant's problem had arisen from "working in a restaurant at high pressure". It appears from the evidence that prior to her becoming the owner / operator of the cafe business the appellant had worked as a Guidance Counsellor at a college and had also worked as a specialist visiting as a teacher. The appellant commenced in the cafe approximately twelve months prior to the onset of the problems. 2 When the respondent received the claim it referred the appellant to an Occupational Work Therapist for a workplace assessment. In that report Ms J Armstrong, the Physiotherapist, noted that prior to taking up the cafe business the appellant normally had walked for approximately 20 - 30 minutes per day. She then gave as her worksite assessment: "Worksite Assessment This was undertaken on March 19, 1998. Erica described her daily routine while working as initially checking supplies and then one worker purchased supplies while the other baked and prepared food for the day. This takes about two to two and a half hours with Erica usually choosing to do the baking and food preparation. Later salads are prepared which requires more walking to assemble ingredients. Sitting tasks involve preparing fruit and vegetables and take approximately one hour, however this sitting time is often interrupted. When the customers arrive, she is involved in taking the orders, preparing orders and taking food out to customers. Erica tends to do more of the meal preparation. Cleaning, later in the day, involves rinsing dishes, stacking in the dishwasher and unloading. Finally the cleaning of the cafe area involves moving furniture and sweeping. The kitchen is rectangular with an island bench nearby three metres in length. This bench has knee space and high wooden stools are used for sitting work tasks. The stools have foot rails of inadequate size and height for comfort. To use them Erica sits forward on the stool and tries to get her feet flat on the floor. On the outside wall a double sink, under sink dishwasher and freezer are situated; the end wall has a domestic stove and tea-making facilities, a food preparation area and fridge occupy the remaining long side of the rectangle. The two areas that are used mostly for standing are between the island bench and the food preparation area and in front of the sinks. The floor is concrete with vinyl floor coverings. This flooring extends to the indoor eating area, another elevated area is rough-sawn floor boards. Outside the tables are on grass or concrete plinths and the path to the dwelling is concrete." Ms Armstrong recommended various solutions for relief of the problem but gave no opinion as to whether or not there was a causal link between the work and the onset of plantar fasciitis. The respondent then referred the appellant to Dr C Kenny, a Consultant Occupational Physician, who examined the appellant and who had the benefit of the radiology report and physiotherapy report, together with the gradual process questionnaires filed in support of the claim. Dr Kenny recorded the appellant's occupational history which noted that she had been in the cafe business for approximately twelve months. He concluded that the General Practitioner's diagnosis of plantar fasciitis was correct. Dr Kenny stated: "Opinion and Recommendations Ms Wilson has a history of foot pain and clinical findings consistent with a bilateral plantar fasciitis. This condition can be present without any significant X-ray findings. 3 Although the plantar arches appear to be relatively well preserved this does not exclude some loss of plantar arch support over the years and the slow development of a plantar arch strain and secondary plantar fasciitis. There is no evidence of tarsal tunnel syndrome (compression of the posterior tibial nerve) or of any stress fracture. It is highly likely that the congenital variation in foot structure has resulted in biomechanical factors which have contributed to the development of Ms Wilson's plantar fasciitis. This foot structure has features consistent with Marfan's syndrome but there are no other significant features suggestive of this diagnosis. In answer to the questions raised in your referral letter: 1. Diagnosis and prognosis Bilateral plantar fasciitis 2 . Condition update Symptoms have improved significantly with rest, acupuncture and other physical therapies. 3. Anticipated recovery period from current foot pain With the implementation of appropriate therapy, it is possible that Ms Wilson's foot symptoms could result within 6 weeks. 4. Any further treatment you can recommend The most important aspect of treatment of this condition will be the provision on properly designed arch supports or orthotic devices which should be worn in all footwear. I understand that some arch support has been provided in the week before this consultation. Good quality arch supports made of semi-permanent material should be developed following a formal fitting. Ms Wilson should ensure that she wears comfortable shoes, preferably those of a trainer-type with built-in arch support, and uses her permanent orthotics in any other shoes. Consideration should be given to the use of a cortico-steroid injection into the region of the calcaneal attachment of the plantar ligament should her symptoms not settle completely with plantar arch exercises and provision of orthotic devices. 4 5. Capacity for Work in pre-injury occupation, as a cafe owner and worker In my opinion, with effective treatment this condition should substantially resolve allowing Ms Wilson to stand and walk without significant pain. She should therefore be capable of returning to all types of employment including her previous work as a cafe owner and worker. 6. Comment on relationship between structural variation and contribution to the condition The cause for plantar fasciitis is not well defined. It can certainly result from excessive strain through the plantar ligament which may occur secondary to a specific activity involving strain of the plantar arch and may be predisposed to my congenital or acquired variations in foot structure or function. In terms of Section 4 of the ARCI Act 1992, the development of a plantar fasciitis can be regarded an as (sic) injury. In terms of Sections 7(1)a and (1)b however, although there may be characteristics of Ms Wilson's work as a cafe owner/operator which have contributed to the development of this condition (prolonged walking and standing), such activity is also present in her non-occupational environment and this characteristic or property (prolonged walking or standing) is a feature of many employments. In terms of Section 7(1)c therefore, persons working in a cafe are not considered to be at greater risk of this condition than those people not working in this environment. In my opinion, the cause for Ms Wilson's plantar fasciitis is more likely to be related to the congenital variation in foot structure and biomechanics than directly to the nature of her work. The development of plantar fasciitis in this situation cannot be considered a work- related injury." After receiving Dr Kenny's report the respondent notified the appellant on 12 May 1998 that her claim for cover was declined because there was no causal link between her employment and the onset of her condition. The appellant lodged an application for review of that decision. After that application was filed the appellant's Case Manager referred the appellant's claim that she considered the appellant's problem to arise out of walking in the cafe, to its local Medical Advisor, Dr C Patterson. Dr Patterson in a memorandum on file noted "we all do a lot of walking in day to day and it was this walking together with the predisposing structural variation which caused be (sic) to rec decline under section 7(1)(b)." Or Patterson then requested an opinion from Dr J R Monigatti, an Occupational Therapist as to the cause of plantar fasciitis. 5 After having the benefit of Dr Kenny's report, which set out the full background, Dr Monigatti reported on 4 August 1998: " Plantar fasciitis is a common condition that is most prevalent in this age-group. There is a history of injury or overuse in a minority of cases, particularly when the job involves frequent changes of level (as when stepping up and down from a platform) or pressure on the instep (as from the runs of a ladder). Load-bearing accentuates the stresses involved. There is no research-based evidence that the type of light ambulatory activity involved in managing a cafe increases the risk of developing plantar fasciitis. Thus, section 7(1)(a) of the Act is not met in Mrs Wilson's case. Walking and standing on flat, firm surfaces wearing shoes are everyday activities. Whether or not Mrs Wilson did recreational walking as well, section 7(1)(b) cannot be satisfied. I am aware of no epidemiological data to support an increased incidence of plantar fasciitis in women of Mrs Wilson's age performing this type of work as compared with other occupations. In the absence of a plausible mechanism for causing this condition in this particular occupational group, I consider section 7(1)(c) also unmet. I agree that the claim is unacceptable as a gradual process injury." In submissions to the Review Officer, the appellant noted that the employment tasks in the cafe involved prolonged walking and standing for some time, up to ten hours at a time. She submitted that that activity was not present in her non-occupational environment nor had she had any problems with her feet prior to the onset of plantar fasciitis. She submitted that the working environment in the cafe did put her at the risk of this type of injury more than any other occupation. The appellant made reference to various medical texts which she submitted confirmed her belief that the problem she suffered arose out of the work in the cafe environment rather than as a result of congenital or biomechanic factors. In her decision, the Review Officer upheld the respondent's primary decision and found that: a) the nature of the appellant's work contributed to the onset of the problem so that the conditions of section 7(1)(a) were satisfied; (b) that similar work characteristics which contributed to the problem were found to a material extent in the appellant's non work environment so that section 7(1)(b) was not satisfied; and (c) that the risk of suffering plantar fasciitis is not significantly greater for cafe workers than for people not working in that environment and that section 7(1)(c) was not satisfied. The appellant has appealed against that decision. 6 The appellant has provided the Court with substantial submissions which basically reiterate the submissions made to the Review Officer. The appellant submitted that while Ms Armstrong did not deal with the question of a causal link between the problem and the work condition, she had made recommendations as to how the problem should be managed as a result of which the appellant's condition improved The appellant submitted that it appeared from her report that Ms Armstrong considered that funding for the expenses would then be forthcoming. The appellant took issue with the Review Officer's finding that the Review Officer should accept the opinion of an Environmental Physician over that of a Physiotherapist who had been specifically trained in OOS assessment and who had consulted with the appellant on a number of occasions whereas the Environmental Physician saw her only once. The appellant also took issue with the Review Officer's finding that there was no evidence that cafe workers were at significantly greater risk of suffering plantar fasciitis than other people not in that environment. The appellant submitted that a lack of evidence should not be regarded as proof, particularly as the Review Officer had already held that the prolonged walking and standing was causative of the injury. While the appellant submitted that she had sent a questionnaire to a number of physicians seeking information as to whether cafe workers or hospitality workers were at risk of plantar fasciitis, some recipients to the questionnaire declined to answer while others raised the possibility that people working on a concrete surface could be at risk. The issue falls to be decided under section 7 of the Act which states: "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 Court has had had to consider the issue of what constitutes a "material extent" and in this context Judge Ongley held in Wellington City Council v ARCIC (1997) 1 BACK 429 "a 'material extent' means an extent capable of causing or contributing to the injury in question." While the appellant has submitted that the Review Officer was wrong to prefer the evidence of the specialists to that of the Physiotherapist, the Court has always taken the view that all the evidence must be taken into account and 7 that specialist medical evidence where it is available must receive favourable consideration. While a person might well conclude that the appellant, who had not previously suffered foot problems, did start to suffer this particular problem only after she became involved in the cafe work and that therefore was the cause of the problem. However, while that the opinion expressed by Dr Kenny is that the appellant's problem did not arise from the work but "is more likely to be related to the congenital variations in feet structure and biomechanics." In addition, Dr Monigatti was of the opinion that the nature of the work did not increase the risk of developing plantar fasciitis which is a common condition, particularly in the appellant's age group. Accordingly, I consider that the Review Officer was wrong to ignore the specialist evidence and that her finding that the requirements of section 7(1)(a) were satisfied is wrong. Again the specialists both expressed the opinion that non work factors have contributed to the appellant's condition. This was emphasised particularly Dr Kenny in his opinion that the appellant's condition is the result of a congenital problem with her feet structure. On that basis it would appear that normal walking apart from the working environment would contribute to the onset of the problem so that on the basis of what constitutes a "material extent" activities similar to those occurring at work were present to a material extent in the appellant's non work environment and therefore the appellant has failed to satisfy the requirements of section 7(1)(b) While the appellant conducted her own survey as to the likelihood of persons in cafe type employment being more susceptible to plantar fasciitis than people in other occupational groups that by itself does not constitute evidence which is sufficient to demonstrate that that is the position. Both Drs Kenny and Monigatti considered that there is no greater risk of suffering plantar fasciitis for cafe workers than for persons in other occupational groups and the Court has no other evidence before it on which to answer that question. Accordingly it must be accepted on that evidence that the requirements of section 7(1)(c) are not satisfied. The appeal is dismissed. DATED at WELLINGTON this 4th day of May 1999 A W Middleton District Court Judge dca436-98.doc (nr)