Farmlands Trading Society Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 246 198 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 FARMLANDS TRADING SOCIETY LTD DCA 285/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND SUSAN HAACK Claimant HEARD on the 9th day of November 1998 APPEARANCES: Mr A Blair counsel for appellant Ms S Scott counsel for respondent Mrs S Haack in person 2 RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to find that the claimant had suffered DeQuervain's tenosynovitis as a gradual process injury arising out of her employment with the appellant. BACKGROUND: On 15 January 1997 the appellant, then aged 54 years, lodged a claim for cover with the respondent in respect of "OOS right hand", said to have been caused by "keyboard use at work, bagpipe playing, increasing ache in right hand and forearm". The medical certificate was signed by her GP who indicated that the claimant was being referred to an Osteopath. The Corporation accepted the claim as being one under section 7 of the Act and forwarded questionnaires to the claimant's GP and to the employer. In response to that questionnaire the claimant's GP confirmed the diagnosis of DeQuervain's synovitis in her right hand, said to have increased over the past months. He further stated that the cause of her condition was "keyboard, no ergonomics in place". In response to the question about non-work activities that could have contributed to the condition he stated "bagpipe playing". The claimant was referred to Mr Andrew Wilson, an Osteopath with a special interest in Occupational Overuse Syndromes, and on 2 February 1997 he advised the Corporation as follows: "Susan attended the clinic on January 16, referred by her GP, complaining of right neck, shoulder, forearm and hand pain. The symptoms are of approximately three months duration, initially associated with work and more recently including bagpipe practice. Once Susan realised playing the pipes was aggravating her condition she stopped this activity. The symptoms are entirely consistent with a work-related overuse syndrome. The work place ergonomics do seem to seem to be less than ideal with a VDU and keyboard off centred to the right and an over reaching of the right arm. Susan works 40 hours per week and approximately half of this is spent with keyboard work. She estimates she was playing the bagpipes for between 1 to 2 hours per week. The relative exposures of these two activities should be borne in mind when deciding whether her case is covered by ACC." In the claimant questionnaire the claimant stated: "Computer screen and keyboard work on front right of desk - also calculator - chair does not adjust in height or support back. Right arm extended to work most of the time - asked several times for new chair and have been declined told nothing wrong with it." The employer in its questionnaire stated: "The manager of the branch employing Sue states her job involves some handwriting. The use of the keyboard is very limited, possibly an hour per day at intermittent intervals." The claim was then referred to the Branch Medical Advisor who, after considering the claim recommended the claim be accepted and stated "I suspect the bagpipe playing has aggravated her symtoms rather than caused them." The Corporation issued a decision accepting the claim as a gradual process injury under section 7 on 21 February 1997. On 13 March 1997 Dr Wilson provided a workplace assessment. He noted: 4 'The workplace was very antiquated and given the multi task and multi user nature of the job there was no alternative but a complete reorganisation including a new desk. I think that it is important that these changes are actioned before Sue resumes full time work." He further noted that the keyboard had been too far away from the claimant and the VDU screen too low. He noted the claimant had been over reaching in order to use the keyboard. He also noted the claimant had been required to use the computer and telephone concurrently. On 13 May 1997 the Corporation received a report from Lois Hembrow, Occupational Therapist. She noted that the claimant spent approximately 40% of her day working behind a desk and the remainder of her time was spent on the shop floor. The appellant lodged an application for review of the Corporation's decision stating "The personal injury caused by gradual process was in fact caused by the employee's involvement in significant activities outside the workplace". That reference was to the claimant's pastime of playing bagpipes and the Corporation determined to obtain expert evidence as to whether the thumb which touched the spacer on the keyboard, which movement was said to be the root cause of her injury, was a movement which she would also carry out in the course of playing the bagpipes. In that regard it sought the opinion of Dr lain Loan, a Medical Practitioner in Taupo. Dr Loan had been playing the bagpipes since 1964 and had competed both nationally and in Scotland. He had been in general practise for 16 years and considered himself qualified to comment on the question raised. In his advise he stated: 5 "Whilst playing the bagpipes the right thumb remains stationery behind the lower part of the bagpipe chanter and the notes are made by lifting the index third, fourth and fifth fingers. There is no way that playing the bagpipes could cause De Quervain's tenosynovitis although prolonged playing ie over an hour a day on a regular basis would I am sure exacerbate the symptoms. The evidence was that the claimant played the bagpipes between one to two hours per week. Dr Loan considered this to be less than most pipers would play. He did say that prolonged playing could aggravate the condition and he himself had had De Quervain's tenosynovitis of his right hand some years earlier and the condition interfered with the playing. For the purposes of the review hearing the appellant did not seek to adduce any further evidence. The Review Officer considered the evidence and found that the three criteria required under section 7(1)(a)(b) and (c) had been met, and in particular he found that the claimant's non-employment activity of bagpipe playing was not causative. The Review Officer accordingly confirmed the Corporation's decision to grant cover to the claimant. The appellant lodged an appeal against that decision contending that the burden of proof establishing the claimant's condition as a work injury lay with the Corporation and that there was insufficient evidence to establish the requirements of section 7(1)(a) and that there had been inadequate investigation of the claim. It is to be noted at the review hearing that the claimant gave evidence of a breakdown of her time on the various different aspect of her job description. She stated these to be as follow: Telephone - 15% Keyboarding - 15% Serving - 25% Stock work - 15% 6 Handwriting and clerical - 15% Prior to the hearing of this appeal the respondent sought specialist opinion from Dr J R Monigatti, a Specialist Occupational Physician, presumably to overcome any perceived inadequacyes in the evidence which may have been available and which was the appellant's criticism. Dr Monigatti reported on 30 October 1998 and his report states as follow: "Thank you for asking me to comment on this case. De Quervain's tenosynovitis is a disorder characterised by pain on the radial (thumb) side of the wrist, impairment of thumb function, and thickening of the ligamentous structure covering the tendons in the first dorsal compartment of the wrist. It primarily affects women (gender ratio approximately 10:1) aged 35 to 55 years. Most cases of De Quervain's tenosynovitis arise from chronic use rather than acute trauma. Occupationally, the condition is usually the consequence of rapid, repetitious movements of the thumb and wrist, or manipulations involving sustained or repetitive pinching, grasping or pulling. The movements do not have to be forceful. The most common provoking cause is repeated and unaccustomed movement, as when starting a new job or returning to an old one from holiday or illness. Keyboard operation is a recognised cause of De Quervain's tenosynovitis, from the thumb repeatedly depressing the space bar. If Mrs Haack typed in this manner, I would consider that her work had a property or characteristic that caused or contributed to her condition. However, the occupational therapist's report of 13 May, 1997 indicated that Mrs Haack did not use a keyboard with speed and did no actual word processing. Therefore, she may not have used her thumb in that way. I appreciate that there were defiencies of Mrs Haack's workstation that may have predisposed her to some types of 7 occupational injury. However, unless she performed at least once activity involving the actions described above, I would not implicate her employment task in the genesis of her condition. It is clear from Dr Loan's account that the action of playing the bagpipes involves minimal movement of the right thumb and wrist, and no significant grasping action. I would therefore accept that this was not a contributing factor, irrespective of the amount of playing Mrs Haack did. There is an increased incidence of De Quervain's tenosynovitis in keyboard operators, and therefore a significantly greater risk for persons performing that activity in general. Whether or not those performing Mrs Haack's tasks would be at greater risk depends on how she actually used her thumb and wrist, as discussed above. Incidentally, I notice in Ms Hembrow's report that the knuckles of Mrs Haack's right hand were swollen, and that she had pain in her ring and third finger radiating up her forearm. These are not features of a De Quervain's tenosynotivitis". At the hearing of this appeal Mrs Haack confirmed the breakdown she had done by way of time and motion study. She further advised that she typed at 80 w.p.m. Mr Blair, counsel for the appellant, submitted that the basis for the appeal was the lack of inquiry that had been made by the Corporation to link the claimant's De Quervain's tenosynovitis with specific job activities. Furthermore, he questioned the expertise of Dr Wilson, an Osteopath in the field of Occupational Medicine. Ms Scott, counsel for the respondent, submitted that there was evidence upon which the Review Officer could rule to find in favour of the claimant but that with the additional evidence of a Specialist Occupational Physician which supports the claim and which gives detail of the precise property or characteristic, there can be no doubt that the decision was correct and further more the appellant has not put up any medical evidence to contradict the opinions expressed in support of the claim. DECISION Counsel for the appellant was correct to identify that the initial onus is on the Corporation to establish that there is proper evidence upon which it can rule that a claim under section 7 has been made out. In this regard I find that the Corporation did carry out inquiries to a level which enabled it to make a decision on the matters required to be considered, in absence of any evidence or indications to the contrary. There were no such indications and indeed the Corporation did seek specialist expert opinion on the question of the non- employment activity of bagpipe playing. Having found that the Corporation was entitled prima facie to make the finding that it did, the onus thereupon shifts to the appellant in this appeal to determine that nevertheless that decision was wrong on the balance of probabilities. This Court has heard further criticism of the Corporation's manner of dealing with the claim rather than the substance. However, any criticisms which may have been warranted I find have been now dispelled by the evidence of Dr Monigatti. He has stated that keyboard operation is a recognised cause of De Quervain's Tenosynivitis from the thumb repeatedly depressing the space bar. I am satisfied on the evidence given by Mrs Haack that she typed in the manner that Dr Monigatti said would cause that condition. Furthermore there is no indication that there was any other activity which the appellant carried out which could have caused or contributed to a material extent to her injury. 9 I find that the question of her dress making was somewhat of a red herring and there is no suggestion from any source that the making of one garment or so per year could have materially contributed. The evidence of Professor Monigatti does confirm the necessary criteria for the three tests of section 7(1) of the Act and I find that the evidence of Dr Monigatti on the issue of section 7(1)(c) does not require this Court to make a "leap of faith" as was submitted by counsel for the appellant. Accordingly then, I am satisfied that the Corporation's decision was correct and accordingly this appeal is dismissed. DATED at WELLINGTON this | day of December 1998 M J Beattie District Court Judge Haack.doc(gm)