Perry v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 69 /98 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 JACQUELINE KAYE PERRY DCA 95/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of March 1998 APPEARANCES: Mr C A O'Connor for appellant Mr S Condie for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision of 17th December 1996 to cease entitlements for the appellant under the Act pursuant to section 73(1) was correct. It being the Corporation's contention that the current pain N problems being experienced by the appellant were not related to the occupational overuse injury for which she had previously been granted cover. Background The appellant is 29 years of age and had since 1989 been in employment with Rod Mackenzie Truck Specs Limited carrying out a range of secretarial and administrative duties. It was a "sole charge" situation. From about November 1994 she began experiencing a feeling of heaviness in her arms and she found that when she was doing keyboard work her arms would get very tight and there would be pain radiating up her forearms. She first consulted her GP Dr Hepburn in November 1994. In March 1995 Dr Hepburn diagnosed bilateral carpal tunnel syndrome. At the time of this diagnosis a claim for cover under the Act was lodged. Dr Hepburn referred the appellant to Mr Taine, orthopaedic surgeon, and his diagnosis was that she had occupational overuse syndrome with elements of carpal tunnel problems. It was Mr Taine's opinion that she could obtain release by surgery and such surgery was duly authorised by the Corporation. Surgery was duly carried out by Mr Taine on the 20th of June 1995 and following surgery she was certified as unfit for work for a further six weeks. The appellant continued to receive weekly compensation and other benefits until she resumed full-time work with her former employer on the 14th of August 1995. The Corporation's file was then closed. 3 On the 4th of July 1996 the appellant produced a medical certificate from Dr Hepburn diagnosing bilateral arm pain and describing it as "chronic occupation overuse injury type problem not improving." The appellant sought a continuation of cover and weekly compensation. Dr Hepburn had referred the appellant to Mr Ian Penny, orthopaedic surgeon, and the Corporation sought advice from Mr Penny about the status of her present injury. Dr Penny reported to the Corporation on 31st July 1996 and he advised inter alia: "I cannot give a diagnosis more accurate than state she has a pain syndrome. No further treatment is proposed from my point of view at the present time. In terms of work capabilities, it is probably best that she is assessed by the Occupational Therapists included in the Musculoskeletal Unit pain management team. I certainly could not state that her current specific restrictions are due solely and directly to injury in carrying out her pre-accident employment tasks as a secretary. In fact I think it is highly likely that this is not the case." Following receipt of that report the Corporation arranged for the appellant to be examined by Dr D W Ching, consultant physician and Rheumatologist and Dr Ching was provided with a copy of Mr Penny's report. Dr Ching reported on the 4th October 1996 and advised that it was his opinion that "I do not think she has OOS, especially as her pain only developed post-operatively." On the basis of the medical opinions of Mr Penny and Dr Ching the Corporation's medical adviser considered that it could not be contended that the appellant's ongoing medical problems were related to her work and although the appellant had been diagnosed as having a pain syndrome there was no evidence that it was attributable to her work or the injury for which she had formally had cover. 4 By letter dated 17th December 1996 the appellant was advised of that opinion and that cover would cease pursuant to section 73(1) of the Act. The appellant sought a review of that decision and at the review hearing she produced two letters from Dr Robert an anaesthetist who was Head of the Pain Clinic at Timaru Hospital. That clinic had been treating the appellant since 25th November 1996. It was Dr Robert's opinion that the pain symptoms which the appellant was experiencing "fell into the group of complex regional pain syndromes which is part of your (ACC's) OOS classification." In her decision the Review Officer upheld the Corporation's decision preferring the opinion of the specialists Mr Penny and Dr Ching that the condition that the appellant was suffering from was not one for which she had cover under the Act. The issue in this appeal is one that is solely a medical question. It is for the Court to determine that issue after consideration of the medical evidence and with regard to the onus of proof, which is upon the appellant, and the standard of proof which she must satisfy on balance of probabilities. For the purposes of determining this issue I set out in full the relevant medical reports commencing with that of Mr Taine. It should be noted that it was Mr Condie's submission for the respondent that Mr Taine's report was not relevant to the issue as his report records only the symptoms which the appellant displayed in April 1995 prior to her operation for carpal tunnel release. Mr Taine has not been involved with the appellant's post-operative situation in any way. However it does include the narrative of the appellant's symptoms as they were described to Mr Taine. Mr O'Connor for the appellant submits that this is an indicator that the appellant was experiencing pain of a similar type pre-operation as that which she explained to Dr Ching post-operation, but which Dr Ching has recorded as being only arising post-operation and thereby being one of the reasons why he has given his opinion that her symptoms are not work related. 5 Mr Taine's report states: "Thank you for referring this 26 years old secretary, left handed, whose job involves a lot of keyboard work, as well as filing, reception and phone duties. From about November, she has had increasing feeling of heaviness in the arms, she was initially waking at night with dead hands, but this has now improved. It may be due to night splints. She finds that very rapidly when using a keyboard now her arms get very tight, her fingers tend to claw, and pain radiates from the forearm up to the elbows. This is on the flexor aspect. She has no neck or shoulder problems at present. She has noted decreased grip and this is causing problems at home as well. Examination shows a full range of neck and shoulder movements, elbow movements, no pain on resisted extension, tenderness over the forearm flexors especially pronator terres. She has a full range of wrist movement, no neurological deficits, negative Tinel's, positive Phelan's test. There is no crepitus or clawing of the fingers at present. She does have diffuse tenderness across the forearm flexors. I think she has an occupation overuse syndrome, with elements of carpal tunnel problems in it, but I suspect most of it is actually coming from the muscles in the forearm and is therefore not amenable to surgery. I think the best thing is physiotherapy particularly teaching relaxation techniques as in the OSH handbook. Heat will also help as well as natural workbreaks etc. I have explained all of this to her. I will see her in three weeks to inject the carpal tunnel with steroid if there are more localised signs then. It may come to a carpal tunnel release as she has predominantly hand symptoms and clawing of the fingers although it may do nothing for the forearm pain." The next report is that of Mr Penny, orthopaedic surgeon, which states as follows: "Thank you for your letter requesting information regarding Jacqueline Perry. This patient was referred to me by her general practitioner, Dr Hepburn, and 6 presented as a 27 year old receptionist who had bilateral ongoing forearm pain problems. She had been seen by Bill Taine and apparently she first presented with problems in 1994 but felt that problems may have been evolving for longer than that. She described having worked for the same company for eight years but over the preceding four years there had been more computer work. She had noticed an increasing feeling of heaviness in her arms and tingling in her fingers and numbness which seemed to be improved with night splints. She describes a tendency for cramping in the hand and pain radiating into the forearms. Bill Taine apparently initially treated her conservatively but went on to perform bilateral carpal tunnel releases because signs seem to localise more to carpal tunnel syndrome bilaterally. There was apparently some improvement following surgery although she wasn't working for the first couple of months following that procedure and she wonders if this may have been why she was feeling better. There was no marked improvement by the time she return to full duties and she describes her problems as currently much worse. She reports suffering ongoing pain radiating up the arm up towards the elbow with paraesthesia and numbness in the same distribution. She described the pain as absolutely constant in terms of its presence but aggravation in intensity with activity. The pain is centred around the thenar eminence but also there was aching around the radial side of the wrist. She described awakening with pain. She has been treated with physiotherapy and micro pauses with no good effect. When I examined Jacqueline I found that she had no obvious swelling wasting or deformity. There was a full range of motion in the wrists and elbows. She demonstrated diffuse tenderness around the lateral aspect of the elbow anteriorly and to a lesser extent around the radial aspect of the wrist. There was no sign of ongoing carpal tunnel syndrome. She did demonstrate hypoalgesia to pin prick testing in the median nerve distribution. There seemed to be some inconsistency to testing sensation in the back of the hand where on the right she seemed to have a radial nerve deficit and on the left an ulnar nerve deficit. There was no sign of radial tunnel nor significant cubital tunnel syndrome. She was tender over the 7 course of the median nerve in that area. I reviewed the x-rays of the elbow which revealed no sign of a supracondylar process. I ordered nerve conduction studies to rule out a more proximal median nerve compression. These nerve conduction studies were reported as normal. Jacqueline pointed out that she was very upset because of this ongoing problem and stated that her job was threatened. She thought she could no longer carry on in her employment which she 'loved' and had been pursuing for the last eight years. She was fairly desperate that something be done to help her problem. I referred her to the Pain Clinic. I cannot give a diagnosis more accurate than state she has a pain syndrome. No further treatment is proposed from my point of view at the present time. In terms of work capabilities, it is probably best that she is assessed by the Occupational Therapists included in the Musculoskeletal Unit pain management team. I certainly could not state that her current specific restrictions are due solely and directly to injury in carrying out her pre-accident employment tasks as a secretary. In fact I think it is highly likely that this is not the case. ACC's best rehabilitation assistance may be to expedite her assessment by the Pain Unit at Burwood who should be able to give a fairly global picture of her problems and disability. Sorry I cannot be of more help at this stage. Please contact me if you have any other queries." The next report is that of Dr Ching dated the 4th October 1996: "Occupational History: Jacqueline has been a full time secretary for approximately 8 years, and enjoys her job. Her job involves a number of duties: lots of handwriting, computer work 8 (normally 3-4 hrs/day but can be all day towards the end of the month), phone work, filing, and driving around for messages. The nature of her job has not changed much, but has probably become busier over this period. History of Presenting Complaint: Approximately 2 years ago, she noticed tingling in her fingers, particularly the middle and ring fingers bilaterally. She did not have any pain. She also had some cramps occasionally in the thenar muscle. She saw Mr Taine who diagnosed bilateral carpal tunnel syndrome. She received physiotherapy and stretching exercises which were not of any benefit. No nerve conduction studies were carried out at that stage, and she went for bilateral carpal tunnel decompression in June 1995. She was off work for 2 months post-operatively and was receiving physiotherapy. During this time, there was some improvement in her symptoms. As soon as Jacqueline went back to work in August 1995, she first experienced shooting pain in her wrists and MCP joints. She is definite the pain only started post-operatively. She worked full time on and off from August 1995 to July 1996. She then worked 2 hours/day from July to August 1996. She saw Mr Penny in July 1996. Nerve conduction studies were normal. She has been referred to Burwood Hospital, but because of the 10 month wait she now has an appointment to attend the Pain Clinic on 25.11.96. The worst pain is the shooting pain from her wrists right up to her elbows. She can cope with the 'ache in her fingers'. Her pain is worse with any activity, including driving, housework, cooking, secretarial work etc. More recently she has noticed tingling in her forearms if she leans on them, but no pain. The tingling sensation was worse on the left side. She has noticed 'heaviness' in her upper arm after activity, and occasionally a feeling of a 'lump in her neck'. A few months ago, when she was having a bath, she noticed numbness and tingling in her feet, which lasted a few hours. If she kneels when she is gardening 9 with her feet fully plantar flexed, she experiences tingling in her feet. This has only appeared recently. She is therefore quite concerned that she seems to be developing new areas of discomfort and symptoms as time goes by. However, she is also quite certain there has been some gradual improvement in her forearms with time although her symptoms can vary from day to day. Examination: Joints and spine were normal. Eye movements, visual fields and fundoscopy were normal. Cranial nerves were normal. Tone, power, reflexes and co-ordination were normal. She is left-handed. No areas of numbness and straight leg raising was also normal. The epicondyles in her elbows in her elbows were tender, but she was tender all over her forearms. No tenderness in her fingers nor MCP joints, and she had maximum grip strength. Opinion: Like Mr Penny, I am unable to make a diagnosis. I do not think she has OOS, especially as her pain only developed post-operatively. I am also concerned that she is developing new areas of discomfort and paraestheside. There is no rheumatological cause apparent for her pain syndrome, but she needs to be seen by a neurologist to have multiple sclerosis or any other neurological disease excluded. I gather she has discussed this with her GP previously, although the referral has not yet been made. I have informed her that I will let you know my recommendation that she be referred to a consultant neurologist, such as Dr S Avery in Christchurch. I was impressed with her positive attitude today, and have encouraged her. She says she is a 'battler'. She does want a diagnosis and a cure if possible. Although I do not know what the diagnosis is here, I doubt if she will find a magical cure. However, I have encouraged her to use her arms as much as possible. I have discussed some principles of pain management with her, and have encouraged her 10 to set herself appropriate goals, and do as much as possible within the limitation of her pain." The two reports of Dr Robert of the Pain Clinic Timaru Hospital of 31st December 1996 and 17th February 1997 state respectively as follows: "As you know we first saw this lady at the Pain Clinic on 25.11.96 because of pain in both elbows and both wrists with this pain radiating up the front of her arm. Mrs Perry visited us again today (30.12.96) with a letter from yourself to say that she would no longer be eligible for ACC. I gather this is based on reports from Dr Ching and Mr Penny in Christchurch. However, you will notice in the first few paragraphs of Mr Penny's letter that he goes on to discuss how pain had developed with time and as she increased her computer work commitment and also noted that she is better once she has stopped work for a time. She has tried to get back to work two or three times but each time she finds she gets a flare up in her condition. We most certainly felt that she fell into the pain syndrome group with complex regional pain syndrome which is part of the OOS classification and Miss Perry most certainly demonstrates this with her pain and other sensations in muscles, tendons and soft tissues and also showing signs of these. We also felt that her present disorder has been associated with her job, particularly in relation to repetitive actions. We felt that our graduated pain management programme including gentle exercises, some acupuncture and some gradual work hardening experience, possibly beginning in the next few months, will enable her to get back into the work force. In our experience she most certainly fulfills the criteria of complex regional pain syndrome which is part of your overall classification of Occupational Overuse Syndrome." 'This very pleasant lady was referred to us by Dr Rob Hepburn in November 1996. 11 Miss Perry presented with pain in both elbows and wrists, radiating up the front of her arm. From Miss Perry's own history and from my interpretation of the other letters, as she increased her computer work activity the amount of pain in the arms and wrists increased. She saw Mr Taine at one stage and he operated on her for carpal tunnels and after this she was not too bad, although Miss Perry was not working at this stage. In September 1995 Miss Perry returned to work but within three months had to stop because of increasing pain in her elbows and wrists. Once she had been off work for a time things seems to settle down and she tried returning to work twice more and again on each occasion had to give up because of increasing pain. With this history and on our clinical examination, we have no doubt at all that this pain fell into the group of complex regional pain syndromes which is part of your OOS classifications. A letter has already been sent to ACC in this context. We certainly feel that this young lady has been very motivated in trying to get back to work but each time and only after considerable return of her symptoms, did she give up again. I am convinced that with our pain management programmes which we have outlined previously, Miss Perry should slowly gain some improvement in her condition. I think Miss Perry will continue to do well as long as ACC maintains support for her which will enable her to look at other opportunities if she is unable to get back to computing which unfortunately seems to have been the precipitating factor for her present condition. I would be happy to report to any further questions." 12 Decision Contrary to the submission of counsel for the respondent, I consider that the report of Mr Taine to be relevant to a consideration of the issue in this appeal. In his report Mr Taine narrates the pre-operative history of the appellant's injury and symptoms and it is noted that his diagnosis is not carpal tunnel syndrome pure and simple but rather a more general occupational overuse syndrome with elements of carpal tunnel problems. He went on to state that he suspected that most of it, that is the problem, was actually coming from the muscles in the forearm and therefore not amenable to surgery. He specifically states that surgery for carpal tunnel release may assist with the hand symptoms and the clawing of the fingers but that it would do nothing for the forearm pain. The appellant did undergo carpal tunnel release surgery but as was foreshadowed by Mr Taine it was not long after her return to work that she again started experiencing pain in her forearms. There were exhaustive tests carried out by Mr Penny and he advised that there was no sign of ongoing carpal tunnel syndrome. In the final analysis he stated he could not give a diagnosis more accurate than that she has a pain syndrome. It is noted that on Mr Penny's examination of the appellant she was displaying the same symptoms as had been the case when examined by Mr Taine save for the fact that the pain around the wrists associated with carpal tunnel was not present. It is clear from the appellant's history as given to Mr Penny that the pain did flare up again following her return to work. Dr Ching obtained a history but the way in which he has narrated it, and therefore presumably understood it, was that her initial work related symptoms were diagnosed as bilateral carpal tunnel syndrome only and that that was cured 13 by surgery. It was on that basis that he talks of the first experiencing of the pain in her wrists and forearms as having started after-that operation. It seems as though Dr Ching has misunderstood the appellant as both in her evidence to the Review Officer and from an analysis of the history as given to Mr Taine, backed up as it was by his diagnosis, she was experiencing pain and symptoms not related to carpal tunnel syndrome before her operation. The symptoms she advised Dr Ching and which he confirmed by diagnosis were again the same as had first been diagnosed by her GP and Mr Taine. In view of the apparent misunderstanding which I find must have been made by Dr Ching I find that his opinion must be considered suspect. Particularly as he makes the statement "I do not think she has OOS, especially as her pain only developed post-operatively." That I find is not the fact of the matter. On the other side of the coin there is the opinion of Dr Robert of the Pain Clinic who on two occasions has expressed his opinion that the present pain that the appellant is experiencing is attributable to her work tasks and that the type of pain she is experiencing is that which is part of a recognised OOS classification. There is the clear opinion by Dr Robert that the cause of this pain is associated with her employment, something which had already been established initially by Dr Hepburn and Mr Taine. Despite the suggestion that the opinions of Mr Penny and Dr Ching ought to be accorded more weight because of their perceived expertise, I find that in the circumstances that of Dr Ching is to be seriously questioned and in the final analysis Mr Penny cannot give a more accurate diagnosis than to state she has a pain syndrome. I do not feel persuaded by his statement thereafter that her current specific restrictions could not be due to her pre-accident employment tasks. 14 This appellant has displayed symptoms of pain associated with the wrists and forearms, that syndrome was identified as being caused by her employment tasks and was accepted as such by the Corporation. Surgery was carried out which partially addressed that pain syndrome but it is clear that there were other symptoms caused by occupational overuse which were not so cured by that surgery and which have persisted without interruption down to the present time. On the balance of probabilities I find that it is more probable that this appellant is still suffering from symptoms associated with her employment and as such she is entitled to continued cover and the decision of the Corporation to cancel her entitlements is hereby revoked. The appellant is entitled to costs which I fix at $800. DATED at WELLINGTON this isday of April 1998 Denthe M J Beattie District Court Judge Perry.doc KD