Nieland v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 44 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOZEF NIELAND of Hamilton Appellant (Appeal No. DCA 10/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of March 1997 APPEARANCES Appellant in person Mr T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992 in respect of an injury to his right hand. The appellant lodged an application for cover with the respondent on 4 October 1994 and this application was supported by a certificate from the appellant's general practitioner, Dr V S Bradley, whose diagnosis was "R carpal tunnel after starting to use walking sticks". The claim for cover indicates that the date of injury was 2 March 1994 and that the appellant first visited Dr Bradley on 8 August 1994. On 7 March 1994, the respondent notified the appellant that the injury appeared to have arisen as a 2 result of a gradual process which was not related to his employment and that he was therefore not entitled to cover under the Act. On 10 October 1994, the appellant applied for payment of private hospital treatment costs and in support of that application submitted a report from Mr W F Glimmerveen, a neurologist in Emmeloord in the Netherlands. That report states: "During his stay in the Netherlands your patient Mr ] Nieland, visited the Dr ] H Jansen Hospital in Emmeloord. He was send (sic) to us by his nephew, colleague Hanssen, surgean (sic) in our hospital. Mr Nieland told us, he had during some time a problem with his right hand. He had paraestheside in the right index. The thenar had lost its mass. Furthermore he had paraestheside in the left hand. Since at least 8 years the patient walks with two sticks. First he had to do this because of coxarthrosis of the right hip, later because of a protehsis of this hip, which didn't improve his walking abilities. He had no other complaints. In the examination there was a definite atrofy of the thenar caused by paralysis of the m.abductor policis brevis dexter. This was also a loss of touch which was prominent in the area of the median nerve, less in the area of the ulnar nerve. In the left hand was a loss of touch in median nerve area. EMG showed a severe motor and sensor deficit of the median nerve in the right hand in the region of the carpal tunnel; no disturbenses (sic) in the conductions velocities in the fore-arm itself; the ulnar nerve showed normal distal motor latencies and normal motor conduction velocities in the right arm; the sensory conduction velocity at the wrist was slow (25mtr/sec); in the left hand the median nerve at the wrist over the carpal tunnel showed a slow sensori conduction velocity (39mtr/sec), otherwise normal; the left ulnar had normal conduction velocities. Conclusion: the multiple lesions are most probably caused by compression at the wrist of the right median and ulnar nerve and of the left median nerve. Compression is probably due by the walking sticks that patient is using. He was advised to use different, professional, walking sticks. If in the course of three months there is no improvement in the complaints of the patient, reinvestigation should be done." The respondent declined the application for private hospital treatment costs because the appellant did not have cover under the Act. The appellant lodged an application for review of that decision and in his application stated that the reason for the application was: "The evidence would indicate your reasons in-correct (sic): I am right handed and as a butcher and painter my right hand was damaged to a degree that it didn't 3 bother me much or show until I used a walking cane since 1987, resulting in a Carpal Tunnel. With the left hand I have used a walking cane since 1987 and shows less damage as set out in a Neurologist's report, a copy of which I enclose." The review officer considered the appellant's submissions that he had been a butcher all his life which he submitted was the reason for his problem. The review officer declined the application because he considered that on the basis of Mr Glimmerveen's report the problems suffered by the appellant were not occupationally induced. In his submissions to me the appellant has stated that all his working life he had been a butcher and that the use of his right hand had gradually brought about the problems he now suffered. He submitted that that was demonstrated by the fact that the problems were worse in his right hand than in his left. Mr Cleary submitted that in order to qualify for cover for problems arising out of gradual process it is necessary to establish, pursuant to s.7 of the Act, that the condition suffered by the appellant has arisen out of and in the course of his employment. He submitted further that while the appellant has stated that prior to retiring he was a butcher and a painter, both of which occupations required constant use of the right hand, there is no further evidence to support the claim that his current condition is attributable to those tasks. He submitted further that the only medical evidence is that of Mr Glimmerveen which attributes his problem to the use of the walking sticks and not to his employment. In cases of this nature the Court has to be guided by the medical evidence. While I accept that the work previously undertaken by the appellant may have contributed in part to his problems, the only medical evidence is that of Mr Glimmerveen which attributes the appellant's problem to the use of the walking sticks and in no way attributes it to his working life. Accordingly, I must agree with the decision of the review officer and the appeal is dismissed. DATED at WELLINGTON this 4th day of April 1997 Grounddub A W Middleton District Court Judge dea10-95.doc(rd)