Snowsill v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 31 199 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 JENNIFER ALISON SNOWSILL DCA 156/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 13th day of November 1998 APPEARANCES: Mrs J A Snowsill in person, together with her husband Mr I R Snowsill Ms L Rice, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's cover in respect of the personal injury to her left wrist on the grounds that such injury was subsequently diagnosed as being Kienbocks disease and was not a disease to which the appellant was entitled to cover under section 7 of the Act. 2 Background On 10 July 1995 the respondent received a claim for cover from the appellant. That claim stating an occupational overuse syndrome to her left wrist said to have arisen from her employment as a machinest with Macknit Ltd. In the Medical Practitioner Questionnaire her GP, Dr Atherton, diagnosed left lateral epicondolitis and left wrist dorsal tendonitis. He stated that her condition was caused by "working at machines". In the claimant questionnaire the appellant described her condition as OOS from her employment as a machinist and stated that the particular work task that had brought about her condition was "attaching bands on garments up to eight hours a day". She further stated that she first noticed the pain in her wrist in March 1995. The appellant had been employed by Macknit Lid as a machinist since June 1986. In a report dated 20 July 1995 a community occupational therapist with Eastbay Health stated "I assessed this lady in her work environment on 20 July 1995. Mrs Snowsill is a machine operator for Macknit and has been working in this position for over 20 years. I believe the pain in her wrist is a result of repetitive supination/pronation of her left wrist while using the Rimoldi and Overlock machines. When using the flat sewing machine Mrs Snowsill experiences no pain. ... I advise that Mrs Snowsill's employment reduce or omit her working hours on the Rimoldi and Overlock machines. I will provide a stronger wrist splint to stabilise the wrist joint." In the gradual process questionnaire completed by the employer, the employer accepted that the injury was work related. By decision dated 3 August 1995 the respondent advised the appellant that it accepted her claim for cover in respect of occupational overuse syndrome to her left wrist and the appellant thereupon commenced to receive various entitlements under the Act. 3 In September 1995 the appellant was referred to Andrew MacDiarmid, Orthopaedic Surgeon, for his assessment and opinion as to treatment for her condition. Dr MacDiarmid reported to Dr Atherton on 4 September stating, inter alia "I am unsure as to the cause of her problem. She may well have had an extensor tenosynovitis with persisting pain in the radiocarpal joint and it needs to be investigated further. In this respect, and particularly in view of the changes in the lunate I have organised for her to have a bone scan carried out at Waikato Hospital." As a result of the bone scan carried out at Waikato Hospital Dr MacDiarmid diagnosed the appellant as having Kienbocks disease of the left wrist. As a result of this diagnosis Dr MacDiarmid referred the appellant to a wrist specialist in Auckland, that specialist being Mr John Tonkin, Orthopaedic and Hand Surgeon. Mr Tonkin recommended left radial osteotomy. This surgery was duly approved and carried out by Mr Tonkin on 23 April 1996. In a report to the respondent of 8 August 1996 Mr Tonkin confirmed the diagnosis of Kienbocks disease and confirmed that he had carried out a decompressive radial shortening osteotomy on 23 April 1996. He advised that the operation performed was designed to relieve symptoms of pain although he stated that this did not occur in every case. It seems as though the appellant continued to experience pain in her left wrist and the medical opinion was that she was not fit to return to her previous employment even though she was urged to do so. In a letter to Mr Tonkin of 22 July 1997 the respondent sought an up to date report on the appellant's condition and also requesting his opinion as to whether Kienbocks disease was due to her occupation or from some other cause. 4 In a report dated 25 August 1997 Mr Tonkin stated "It is my expectation that she would be ready to return to work. She may however require a gradual build up and reassessment. If pain is an ongoing problem then she may not be able to perform her former work activities. The natural history of Kienbocks disease is variable. Some patients recover completely and others undergo a slow deterioration. This deterioration can take place over a period of 5-10 years. Because of the individual variation I am unable to predict what the outcome will be in Mrs Snowsill's case. With respect to the cause of her condition. Kienbocks disease usually follows an injury such as a fall but may occur spontaneously. People with a relatively short ulnar (ulnar negative variance) such as Mrs Snowsill are more slow to develop the condition. I am unaware of her occupation per se being the cause of this condition." On the basis of this opinion from Mr Tonkin, the respondent wrote to the appellant on 18 September 1997 advising that, as it was now clear that her condition was not occupational but had arisen from other causes, her entitlements would cease. The appellant sought a review of that decision. For the purposes of that review hearing the Corporation sought the opinion of Dr JR Monigatti, Occupational Physician and Principal Medical Advisor to the Corporation. His report dated 18 February 1998 states as follows: "Although many cases are of spontaneous origin, it is well recognised that Kienbocks disease can result (from) trauma. This may be the result of a single incident with disruption of the blood supply, or multiple compression fractures with loss of blood supply to fragments. Whilst some types of repetitive trauma have been implicated in the Journal of Sports Medicine as potentially causing the onset of Kienbocks disease, these have been situations where the events have been rather violent in nature, such as returning a volleyball and performing gymnastics. The occupational tasks performed by Mrs Snowsill as a sewing machinist lacked anything like this degree of severity. No relationship has been identified between the development of Kienbocks disease and any particular vocation or work task. This is consistent with my experience as a practising occupational physician. Mrs Snowsill has ulta minus variance, a congenital condition associated with a predisposition to Kienbocks disease. Although it could be argued that individuals with this condition are more susceptible to avascular necrosis following moderately severe trauma, there is no evidence from which to conclude that they are similarly vulnerable to minor trauma. 5 In my opinion, Mrs Snowsill's claim does not satisfy any of the section 7 criteria, and I do not consider that she is entitled to ACC cover." In her decision dated 9 March 1998, the Review Officer found on the evidence that the initial diagnosis of the appellant's injury was incorrect and that the correct diagnosis was that of Kienbocks disease. She further found that there was no evidence to suggest that this disease had been caused by, or contributed by, any repetitive work task that she undertook. She relied in the main on the evidence of Dr Monigatti and Mr Tonkin and confirmed the Corporation's initial decision. For the purposes of appeal to this Court no further medical opinion was submitted but both appellant and respondent have referred to various articles on Kienbocks disease in support of their respective positions. Submissions In his written submissions on behalf of his wife, Mr Snowsill submits that the opinion expressed by Mr Tonkin in effect means that Mr Tonkin does not know that occupation by itself is the cause of the condition. He further submits that Mr Tonkin did not say that occupation did not contribute to the condition. He further submits that whilst both Mr Tonkin and Dr Monigatti both state that people with relatively short ulna (the ulna negative variance), such as the appellant has are more prone to develop the condition, he contends that this opinion is based on a study by one O Hulten in 1928 and that more recent research, he submits, shows that the ulna minus variance has no bearing on the cause of Kienbocks disease, but is actually a consequence of the disease. He states that his source for this is the Journal of Hand Surgery - S S Kristensen and K Soballe but the text itself has not been produced to the Court for consideration. 6 Mr Snowsill further contends that the currently accepted theory now is that Kienbocks disease can be caused by repeated minimal trauma or a single acute episode and he refers to a paper by one R Nakamura in the Journal of Sports Medicine. When considering the question of trauma Mr Snowsill submitted that it must be remembered that the injury is to the appellant's non dominant wrist which is required to perform a work task that in most manual operations would be performed by the dominant hand. He submitted that the movement required of the non dominant hand in the work task established a trauma that could be the cause. Mr Snowsill finally submitted that modern medical research establishes on the balance of probabilities that the appellant's demonstrated unnatural workload forced onto the non dominant wrist did produce the cumulative effect of repetitive minor trauma contributing to and most likely the actual cause of her injury. In supplementary submissions the appellant disputed that Mr Tonkin could be regarded as an expert in regard to Kienbocks disease. She submitted that because the disease is rare it is not generally known to doctors or surgeons in New Zealand and that any knowledge of the disease is likely to be based on academic literature. With regard to Dr Monigatti's evidence she submits that his evidence is based entirely on literature which he has read. Again the appellant proffers the submission that it is widely accepted that repeated minimal trauma has been known to cause Kienbocks disease. She further submitted that the tasks performed by her in her employment had a particular property or characteristic which caused or contributed to the injury, that property or characteristic being the repetitive twisting and rolling of her wrists when feeding fabric through the machine. 7 Ms Rice, counsel for the respondent, submitted that the evidence of Mr Tonkin should be respected. She further submitted that the opinion of Dr Monigatti should also be respected, that he is a person qualified to comment on the relationship between the appellant's current condition and her workplace activity. She observes that Dr Monigatti's opinion confirms Mr Tonkin's conclusion. Counsel observes that the article by R Nakamura in the Journal of Sports Medicine which is referred to in the appellant's submissions has not been produced and therefore the submission is of limited value. She submitted that there is no indication of what manual work those in the study carried out and it is not possible to determine whether that work involved minor movements that could have caused Kienbocks disease. She contends that the article does not implicate the patient's occupation as the cause of the disease and there is no information regarding the patient's activities outside work which may have involved violent movement. Counsel finally submitted that the medical evidence did not establish that there was any particular property or characteristic of her employment tasks which caused or contributed to her Kienbocks disease. Decision There appears to be no dispute that the appellant was suffering from Kienbocks disease when she first saw her GP about the pain in her wrist in March or April 1995. It is equally clear that her wrist injury was misdiagnosed at the time she made her claim for cover and it seems that cover was granted on the basis of the statement from her GP in the gradual process questionnaire that she suffered from left wrist dorsal tendonitis. When Mr MacDiarmid diagnosed Kienbocks disease and referred her to Mr Tonkin for remedial surgery it is clear that it was that disease and nothing else which the appellant was suffering from and which required a particular type of surgery in order to alleviate the pain the disease was causing. 8 In order for the appellant to be entitled to continued cover under the Act following discovery of the fact that she was suffering from Kienbocks disease, it is necessary for it to be established on the balance of probabilities that there was a causal connection between the work tasks that the appellant was required to perform as a machinist and the onset of that disease. That is, did the particular movements she undertook with her left wrist in the course of her machining duties cause or contribute to the onset of this disease. The evidence of the two specialists who have specifically considered this disease as it relates to this appellant and her work tasks have said that there is no such causal connection. The evidence, if it can be called that, submitted by the appellant is in effect much less than can be said to be "best evidence" and simply consists of references to various publications whose veracity or context this Court has not been able to consider because the texts themselves have not been produced. In that regard particularly I note the submission contrary to the opinion of Mr Tonkin and Dr Monigatti that comparatively minimal trauma can bring about the disease. This is a statement which has been made in submission but which has not been attributed to any particular article in those words. Furthermore this Court seriously questions whether the appellant's wrist undergoes what is generally accepted as trauma in the course of the work tasks described. The appellant describes it as stress from turning over several times a minute but that does not equate with trauma which has connotations of a blow or shock rather than stress caused by repetitive use of a tendon or muscle. In the circumstances of this appeal the onus of proof is upon the appellant. It is she who is required to satisfy the Court on the balance of probabilities that her contracting Kienbocks disease was contributed to and as a result of a particular property or characteristic of her workplace tasks. In addition to that the appellant is required to satisfy the other two tests stated in section 7 of the Act, but having regard to the state of the evidence which is before this 9 Court I find that the appellant has not discharged that onus which is upon her to establish that first and key requirement. As an observation I note that the appellant submitted a table which was part of a paper described as Radial Shortening for Kienbocks disease - Factors Affecting the Operative Result by R. Nakamura & Others and where it is noted that of the 23 subjects five were given the occupation description of machinists. However there is nothing in that paper which would suggest that the occupation of machinists had anything to do with the onset of the disease or was causally connected. Indeed other occupations were those of student, schoolboy, housewife as well as factory worker, carpenter and spot builder. The whole thrust of the article is a discussion whether radial shortening is an effective treatment for Kienbocks disease and the table is used only as a comparative for that purpose. This is an appeal where there is certain evidence which is clear, concise and to the point. There is also a plethora of background comment and research on Kienbocks disease which cannot be determined whether it is relevant to the essential question which this Court is called upon to determine, namely the causal connection between work task and onset of disease. Finding as I do that the appellant has not satisfied the evidentiary burden which is upon her, it follows that this appeal must be dismissed. DATED AT WELLINGTON this 1 8 +day of february 1999 M J Beattie DISTRICT COURT JUDGE Snowsill.doc