Whittaker v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 277/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN HEATHER ANNE WHITTAKER (AI 344/01) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 18 September 2003 APPEARANCES Ms H Armstrong, Counsel for Appellant. Miss S Jerebine, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether the respondent was correct to suspend entitlements to the appellant, pursuant to Section 116 of the Act, on the grounds that her medical condition as it then presented was not attributable to the personal injury by accident for which she had been granted cover. [2] That is the issue which I find arises from the respondent’s primary decision and which gives this Court jurisdiction to hear this appeal. That decision was issued on 7 September 2000 under the signature of the appellant’s Case Manager and is regrettably far from being precise and clearly identifying the nature of the decision that was being issued. [3] Whilst the decision letter purports to indicate that the respondent was questioning its original decision to grant cover to the appellant, nevertheless the particular 344.01 (pg) 2 executive part of the decision clearly identifies that the respondent was declining to continue ongoing statutory entitlements pursuant to Section 116 of the Act on the grounds that the appellant’s current diagnosis was that of a chronic pain syndrome and not attributable to her covered injury which was that of bilateral carpal tunnel syndrome. [4] Nowhere in the decision letter does the respondent purport to exercise its power of revision of its earlier decision to grant cover pursuant to Section 73 of the Act. Therefore it must be the case, and I find it to be so, that the respondent’s original decision of 9 July 1996 granting cover to the appellant for a work related gradual process injury of bilateral carpal tunnel syndrome is still extant and that the issue in this appeal must proceed from that fact as its starting point. [5] The background facts relevant to the appeal are not in dispute and may be stated as follows: • In May 1996 the appellant, then aged 34 years, lodged a claim for cover and treatment expenses for what her GP, Dr Fong, had diagnosed as bilateral carpal tunnel syndrome. • At this time the appellant was employed as an Assessor by New Zealand Income Support Services and the injury was said to have arisen from her data entry, typing and other clerical duties with NZISS. • The respondent duly investigated the claim as a gradual process injury and on receipt of the gradual process questionnaires it made its decision to grant cover to the appellant, that decision being notified by letter dated 9 July 1996. • The appellant received treatment for her injury including referral to Mr John Tonkin, Orthopaedic and Hand Surgeon. The respondent agreed to Mr Tonkin carrying out carpal tunnel release surgery. • Mr Tonkin carried out right and left carpal tunnel release surgery on 1 August 1996. • Although the carpal tunnel release surgery was considered successful, the appellant continued to experience numbness and pain in her forearms. • In or about September 1996 the appellant returned to work on a part- time basis and graduated to 4 hours per day five days per week. 344.01 (pg) 3 • By January 1997 she was again experiencing multiple tender points on her forearms. • After a period off work, a second graduated return to work programme was introduced but the appellant was unable to resume full or normal duties and she was medically retired in January 2000. • In 2000 the respondent’s Branch Medical Advisor conducted a medical review of the appellant’s case and in that regard sought opinions from Professor Des Gorman, Head of Occupational Medicine at the University of Auckland Medical School and from Dr John Monash, Occupational Medicine Specialist. • Following receipt of those reports and consideration thereof by Dr Ryan-Sheridan, the respondent’s Branch Medical Advisor, the appellant’s Case Manager issued the respondent’s decision dated 7 September 2000 whereby the respondent determined to suspend entitlements to the appellant pursuant to Section 116 of the Act. • The appellant sought a review of that decision and for the purposes of that review the appellant introduced a report from Dr E W Dryson, Occupational Medicine Specialist. • In a decision dated 25 June 2001 the Reviewer found that the medical evidence did not establish that the appellant had suffered a physical injury and that there was therefore insufficient evidence to establish a specific work injury from which the regional pain syndrom/fibromyalgia, being the appellant’s diagnosed condition, could have developed. • The Review decision therefore confirmed the correctness of the respondent’s decision to suspend entitlement pursuant to Section 116 of the Act. [6] This is a case where the medical evidence is all important and it is certainly the position that the respondent made its primary decision based on certain of that medical evidence which it had in its possession. The two competing claims of counsel for the appellant and the respondent respectively may be shortly stated as being that it is the appellant’s contention that the appellant’s now diagnosed condition of a chronic regional pain syndrome or fibromyalgia is causatively linked to the carpal tunnel syndrome which was the injury for which she was granted cover. It is contended that the fibromyalgia condition had arisen out of her CTS. It is the respondent’s contention that the fibromyalgic condition is quite separate and distinct and that the carpal tunnel 344.01 (pg) 4 syndrome for which cover was granted has now resolved and that therefore there is no right of continuing entitlements arising as a consequence of that injury. [7] The medical evidence which I find relevant to the issue in this appeal may be stated as follows: 1. Report from Mr John Tonkin, General Orthopaedic and Hand Surgeon, dated 2 May 1996 to Dr C Fong. The appellant had been referred to Mr Tonkin by her GP, Dr Fong, and this was his report to him following his examination of her: “I reviewed Mrs Heather Whittaker on 1/5/96. Mrs Whittaker has now developed symptoms of right carpal tunnel syndrome and in addition has dorsal right wrist and forearm discomfort and early, but similar symptoms on the left side involving the dorsum of the wrist. On examination she has tenderness over the extensor tendons at the wrist level. She has pain on flexing and extending the fingers and the wrist on the right side. The carpal tunnel compression test is now positive on the right. I believe that Mrs Whittaker has developed tynosynovitis of the right wrist extensor tendons and in addition has right carpal tunnel syndrome. I have recommended right carpal tunnel release be performed in addition to left carpal tunnel release. It appears that her symptoms are promoted by her work and I have given her the necessary documents to enable her to apply to the ACC for the cost of private surgical treatment.” 2. Report from Mr Tonkin dated 30 July 1996 to Dr Fong. This was a further report from Mr Tonkin prior to the planned surgery and it followed the appellant being seen by Dr E W Dryson, Occupational Medicine Specialist. Mr Tonkin advised as follows: “I reviewed Mrs Heather Whittaker on 26 July 1996. Mrs Whittaker has symptoms of bilateral carpal tunnel syndrome with bilateral Tinel signs positive at the wrist. She does have proximal muscle tenderness. 344.01 (pg) 5 I note that Dr Dryson has diagnosed a “polymyalgia syndrome”. I believe that Mrs Whittaker’s hand symptoms are due to bilateral carpal tunnel syndrome and I have recommended bilateral endoscopic carpal tunnel release. Mrs Whittaker has an appointment for surgery at the Auckland Surgical Centre on 1/8/96.” 3. Report from Dr E W Dryson, dated 2 August 1996 to Dr Fong. Dr Dryson examined the appellant on 22 July 1996 at the request of Dr Fong and reported to him inter alia as follows: “On examination she was markedly tender over the medial and lateral epicondyles at both elbows and this tenderness extended into the flexor and extensor muscle bellies of both forearms. She had a reduction in flexion at the right wrist by 15 º compared with the left. There was no other reduction of wrist movements. There was no pain felt on resisted movements at the wrists. She experienced pain on resisted extension of the fingers on the left hand felt in the extensor forearm. Se also experienced pain on resisted abduction of the thumb. The right carpus was tender to palpation on the radial side. Tinel’s sign for carpal tunnel syndrome was positive on the right as was Phalen’s test on both sides. Finkelstein’s test for de Quervain’s tenosynovitis was positive on the left. There was some tenderness of the extensor pollicis brevis and abductor pollicis longus tendons but no evidence of tynosynovitis.” . . . “She had multiple positive fibromyalgic tender points in all four body quadrants.” . . . “These generalised findings are those of a fibromyalgia syndrome.” 4. Report from Dr E W Dryson, dated 10 February 1997 to Dr Fong. Dr Dryson reviewed the appellant’s position on 30 January 1997 after she had returned to work. He noted that she continued to have multiple tender points and evidence of adverse neural tension and he considered that this likely represented a temporary flare-up from increasing work hours too soon. 344.01 (pg) 6 5. Report from Professor Des Gorman, dated 2 May 1999, to ACC. The respondent had asked Professor Gorman to examine the appellant and advise on her present condition. Professor Gorman was asked to advise on her current diagnosis, present clinical findings and likely prognosis. Professor Gorman advised inter alia as follows: “Heather has a chronic axial pain syndrome that satisfies the research classification criteria for fibromyalgia. It is uncertain as to whether or not this fibromyalgic state can be sub-classified as post-traumatic.” . . . Today, there was no evidence of any carpal tunnel syndrome, lateral epicondylitis or rotator cuff syndrome (all of which I understand have been diagnosed previously). Although she has subjectively reduced sensation in the left arm and hand, and this is predominantly in the ulnar nerve distribution, these sensory changes extend outside the traditional distribution of this nerve, such that it is unlikely she has a specific ulnar nerve neuropathy.” Professor Gorman went on to note that the relationship between fibromyalgia and injury remained controversial and he acknowledged that it was compensable when it was considered to be post-traumatic. He noted that for such recognition there must be an assumption of cause and some form of antecedent injury that could have acted as a sensitising event for the nervous system changes that it is now known underlie such chronic pain. Professor Gorman said that he did not have details about the appellant’s workplace or the work processes and could therefore not make any determination as to the cause of the onset of her problems. He then went on to state as follows: “It is probable in this context, that a post-traumatic basis for Heather’s fibromyalgia would be predicated on a diagnosis of carpal tunnel syndrome. Certainly, Heather’s symptomatology was highly suggestive of this diagnosis. In addition, Dr Tonkin is a very skilled hand surgeon, and I have confidence in his diagnostic ability in this context. However, the neurophyiologic testing performed by Dr Frith showed no evidence of any median ulnar nerve dysfunction. While this does not exclude carpal tunnel syndrome, it is strongly against the diagnosis. Perhaps most importantly, Heather did have some benefit from the surgery. Whereas her right hand was hardly affected symptomatically, she did have severe symptoms affecting her left hand. Following the surgery, she believes that the numbness resolved in her thumb, first and second fingers (the expected distribution of the median nerve), and that her thumb function returned to normal. Overall, this response to surgery suggests that there was some real component of carpal tunnel syndrome present, and that a diagnosis of post-traumatic fibromyalgia is tenable. The issue about compensibility here of course relates specifically to whether this carpal tunnel syndrome was work related. As cited above, such determination is currently impossible." 344.01 (pg) 7 6. Letter from Professor Gorman dated 17 May 1999 to the appellant’s GP and to ACC. This was follow-up advice from Professor Gorman following he being provided with all the appellant’s GP’s notes made at the time when her injury was becoming manifest. Professor Gorman stated as follows: “Overall, the most important event here appears to have been Heather’s significant response to Dr Tonkin’s surgery, such that a diagnosis of carpal tunnel syndrome should be assumed, and Heather’s fibromyalgia should be sub- classified as post-traumatic. Obviously, the comments above have much to do with compensation and have little to do with Heather’s ongoing management. Hopefully, she is beginning to make good progress towards some form of recovery.” 7. Report from Professor Gorman dated 6 July 2000 to ACC. Professor Gorman had been given further details about the appellant’s work tasks and was asked whether her work was likely to have caused carpal tunnel syndrome. Professor Gorman stated: “A diagnosis of carpal tunnel syndrome is assumed here on the basis of Mrs Whittaker’s response to Dr Tonkin’s surgical intervention. Such an assumption is reasonable. However, the question addressed here is whether or not a carpal tunnel syndrome would be a plausible consequence of Mrs Whittaker’s work process.” Professor Gorman then went on to state that in his opinion clerical based occupations do not have any increased risk of carpal tunnel syndrome. He then went on to advise that from research that had been undertaken there was no data to establish that any form of work process could cause a pain syndrome per se, but he noted that if the patient’s chronic pain disorder was precipitated by some event, that would itself would be compensable, then the pain syndrome would be considered to be compensable. 344.01 (pg) 8 8. Report from Dr John Monash, dated 28 April 2000 to ACC. The respondent had referred the appellant to Dr Monash, an Occupational Medicine Specialist, for assessment of her upper body pain. Dr Monash examined the appellant on 31 March 2000. Dr Monash’s diagnosis was that of a regional pain syndrome which he said was not significantly different from fibromyalgia syndrome as both syndromes describe abnormalities of pain perception known by a difference of degree more than in essence. It was Dr Monash’s opinion that the appellant was displaying the beginnings of her chronic pain syndrome before the onset of her carpal tunnel syndrome. He noted that although she met clinical criteria for surgery a regional pain syndrome can limit other conditions and surgery relieved only part of her original symptoms. Dr Monash went on to state that there was no specific physical injury antecedent to the pain syndrome. DECISION [8] As I noted at the beginning of this Judgment, it is not the task in this appeal to call into question or examine the merits of the respondent’s decision to grant cover to the appellant for a work related gradual process injury of bilateral carpal tunnel syndrome. [9] At the time the respondent made its decision to accept the appellant’s claim for cover, it had given full consideration to the criteria for a claim for cover for a workplace gradual process injury and the documents which have been produced indicate that the final decision was made by the respondent’s then Branch Medical Advisor and where it is noted in that person’s handwriting that the appellant met the criteria for a gradual process claim. [10] I wish to emphasise that as being the starting point as it is certainly the case that when the appellant’s condition came to be reviewed in 1999/2000 by Professor Gorman and then Dr Monash, the respondent’s then Branch Medical Advisor, Dr Ryan-Sheridan seems to have focussed in great part on whether or not the original decision to grant cover was the correct one. That focus was brought to bear by the Branch Medical Advisor’s view that the evidence did not establish that the appellant’s work tasks/environment were causative of her CTS or indeed if she had had CTS at all. It is for this reason that the rather jumbled decision letter was issued by the respondent 344.01 (pg) 9 in September 2000 and which forms the background for this appeal. Considerable emphasis in that decision letter is placed on whether the respondent was in error in granting cover in the first place. [11] As I have noted this Court’s starting point must be from the point of view that the appellant was granted covered for bilateral CTS, and the issue which it has to consider is whether the respondent’s decision to suspend entitlements to the appellant for that injury was correct. [12] The Court has had the benefit of the opinion of Professor Des Gorman, and certainly his evidence in cases involving fibromyalgia and whether it is or is not post- traumatic, has been received and noted in a number of appeals that have come before it. [13] In the present case, Professor Gorman accepts that fibromyalgia can be a consequence of a physical injury or to use his words “ . . .be post-traumatic” and in that regard I note that he accepts unreservedly the diagnosis of Mr Tonkin that indeed the appellant did have bilateral CTS when Mr Tonkin examined her at the time she was presenting with her pain problems in early 1996 and which he sought to resolve by surgery in August 1996. [14] Whilst I note Dr Dryson stating that it is possible that the symptoms of CTS can be mimicked in a fibromyalgia syndrome, I am firmly of the view and do so find that there is no evidence which can state that that was the case with the symptoms of this appellant. [15] If one puts to one side the various opinions expressed by Occupational Medicine Specialists on causation of the CTS, then I find that the opinion of Professor Gorman carries the day, that whilst the appellant was, at the time he examined her, not displaying any present symptoms of CTS, nevertheless he accepted that the CTS was the sensitising injury which brought on the fibromyalgia condition and that this opinion went from an opinion which was “tenable” to a clear statement of opinion when he had received full details from her GP. His opinion was that her fibromyalgia should be sub- classified as post-traumatic. [16] Whilst Professor Gorman himself may be skeptical of whether the appellant’s CTS was work based, I find that he was in no doubt that it was a fact that she had had 344.01 (pg) 10 such a condition and that it was a condition which could precipitate the regional pain syndrome/fibromyalgia with which she was diagnosed at the time that the respondent made its decision to suspend entitlements. [17] As a matter of law, I find that it has been established on the balance of probabilities, that the appellant’s fibromyalgia is as a consequence of her CTS and as such the necessary causal connection between that condition and her covered injury is present. The respondent was therefore wrong to determine that there was no such causal connection and seek to suspend her entitlements. [18] The consequence of my finding is that the respondent’s decision suspending entitlements is hereby quashed, and all such entitlements to which the appellant may be entitled are to be reinstated as from the date of their suspension. The appellant is also entitled to legal costs which I allow in the sum of $2,000. DATED at AUCKLAND this 7th day of November 2003 M J Beattie District Court Judge 344.01 (pg)