McCulloch v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 339 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUDITH ANN MCCULLOCH of Invercargill Appellant (Appeal No. DCA 295/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 21st day of October 1999 APPEARANCES/COUNSEL M Watson - advocate for appellant B A Corkill for the respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent's decision of 4 June 1998 that the appellant was no longer entitled to weekly compensation was correct. The facts which give rise to this appeal are that in March 1990 the appellant lodged a claim for cover with the respondent on the grounds that she suffered "RS/" attributable to her work with Rice Refrigeration in December 1988. She was then involved in continuous keyboard work and first noticed symptoms in November 1988. On 1 May 1990, Mr I Denholm, an orthopaedic surgeon, reported that he had examined the appellant on 7 November 1989. His diagnoses was: 2 "Mrs Mcculloch would appear to have a minor ulnar neuritis at the elbow. In addition she presents with a number of other symptoms, which do not fit with any peripheral, neurological or orthopaedic condition. These include headaches and dizziness. These, together with her diffuse aching pain would perhaps suggest a post viral syndrome As you will be aware, R.S.I. is an obsolete term, no longer being used by other than those who are ignorant of the etiology (sic) of and pathogenesis of the various soft tissue disorders of the upper limb. The term is no more helpful than the term such as diffuse body pain. The more proximal aches and pains, together with her dizziness and headaches indicate they would most closely fit with post viral syndrome, in which case an effective cause is the most likely. She does have some minor evidence of entrapment of the ulnar never behind the elbow. This may be related to her job, particularly if she spends long periods with her elbow resting on the table where she is working. So far as her ulnar nerve lesion is concerned, at this stage I do not believe there is nay indication for surgical management. When I see her next I shall be suggesting that she avoids pressure over the ulnar nerve and possibly injecting a little corticosteroid around the nerve to try and prevent any irritation here. So far as her more proximal pain is concerned, and in particular her headaches and dizziness, there is little that one can do apart from wait for this to resolve." On 5 June 1990 the respondent notified the appellant that her claim for cover was declined because there was insufficient evidence that the symptoms she suffered were due to the nature of the employment in which she was engaged. On 1 July 1990 the appellant applied for a review of that decision and submitted a further report from Mr Denholm dated 21 June 1990 which states: 'The pain and swelling you describe in your forearm is almost certainly as a result of the ulnar neuritis that you have. This is the condition whereby one of the nerves in the forearm gets pressed on, usually at the elbow or just below the elbow. This type of problem can be directly related to the positioning of your arms in your work and is frequently seen in offices workers. I believe it is reasonable to attribute this to your job. The more proximal pains, i.e. those in your neck and in your head, together with your dizziness, I think are unlikely to be as a direct result of your work, but may be as a result of stress in your work. So far as the ulnar neuritis is concerned there is no question in my mind that this would be a condition covered by the A. C. C. I would also confirm that I am referring you to the Pain Clinic in Dunedin. If the A.C.C. were concerned, they may wish to obtain a second opinion from Dr Zacharias, who runs this Pain Clinic." 3 The respondent declined an administrative review and referred the appellant to Dr Zacharias at the Pain Clinic of the Dunedin Hospital. Dr Zacharias could find no clinical evidence of ulnar neuritis but did find "some evidence of muscular involvement which might be contributing to her pain problems in the extremity." He considered: 'There is ample evidence to suggest that issues such as inadequate posture and stress at work might have contributed to the onset of the symptoms." In a file not on 13 December 1990, Dr R G Robinson, the respondent's Regional Medical Officer, concluded that Mr Denholm may have been wrong and that the appellant suffered RSI or occupational overuse syndrome which was acceptable for cover. On 18 December 1990 the respondent advised the appellant that it had administratively revised its decision and that her claim for cover was accepted. The claim was accepted under s.28 of the Accident Compensation Act 1982. On 18 March 1991 the appellant's general practitioner, Dr Fernando, lodged a claim for treatment expenses in which he diagnosed the problem as "possible regional pain syndrome". On 18 November 1997, Dr G Hancock, an occupational physician, considered that the appellant's condition had then progressed beyond OOS into fibromyalgia. In a report of 19 February 1998, Dr J Alchin, a specialist occupational physician, diagnosed regional pain syndrome in which he noted that the acceptable term was "fibromyalgia". He did not consider that work factors were involved in her incapacity. A similar view was taken by Dr J R Monigatti, an occupational physician, in a report of 28 May 1998 in which he provided his opinion on "regional pain syndrome". On 4 June 1998 the respondent notified the appellant that her further entitlement to weekly compensation would cease as from 30 June 1998, as it considered that her symptoms were no longer the result of her work activities. On 31 July 1998, Dr Wigley provided a report following his examination of the appellant. He also had available to him the reports of Mr Denholm, Dr Zacharias, Dr Hancock, Dr Alchin, Dr Monigatti and a work capacity report. Dr Wigley's diagnosis was: "Initially the description was quite typical of the occupational overuse syndrome of the localised diffuse symptoms type as defined in the Practitioner's Guide (First Edition). ACC prefer the name Regional Pain Syndrome. In view of the strong evidence that it was occupationally induced the adjective 'occupational' should be added. Occupational Regional Fibromyalgia would be another acceptable label. Since her symptoms have become generalised, and there are twelve tender points, the requirements for the American College of Rheumatology definition of fibromyalgia were satisfied when I examined her. In my review of 100 cases of Fibromyalgia, more than half had started with localised pain, later extending to become generalised as has happened in her case. Half were already accepted by ACC. She would fall into this category. In 10%, psychosocial factors predominate and other cases followed injury or 4 were associated with other disorders such as arthritis. (N.Z. Med.J. March 1998). In my opinion this is a progression of the same disorder, not the appearance of a separate disease, Fibromyalgia. Clearly she did not have symptoms of that before being overloaded in her work. More severe cases of this kind of occupational overuse syndrome do show swelling. This is often complained of but not seen, but in her case it is visible and was also recorded by Dr Alchin in his report. Focal Dystonia (writer's cramp) frequently complicates overuse syndromes. The hyperalgesia is also a feature of the more severe cases Since the possibility arises with the swelling that there is in fact an inflammatory arthritis or tenosynovitis the Laboratory tests will be repeated. Dr Mulvany has found a positive anti-nuclear factor of speckled type of 1:320 with an ESR of 22. The Laboratory tests repeated on 02.08.98 show marginal ESR, CRP and Rheumatoid factor. The antinuclear factor of speckled type is usually unhelpful as this is common in the general population. I do not consider these findings justify a diagnosis of inflammatory arthritis which in any case would not explain most of her symptoms." When it received Dr Wigley's report the respondent submitted it to Dr Monigatti for his comment. In a letter of 28 April 1999 Dr Monigatti referred to the Consensus Meeting on fibromyalgia and the fact that Dr Wigley was of the opinion that there was a work causation for the problems which was not accepted by the majority of those attending the meeting. The matter then went to review and the review officer upheld the respondent's primary decision. It is against that decision which the appellant now appeals. The appellant was given leave to adduce evidence from Dr Wigley. Dr Wigley agreed that he had been present at the Consensus Meeting on fibromyalgia and that he disagreed with the findings of the majority. He said that he did not accept the view of the majority that there was no known cause for the type of problem suffered by the appellant. He considered that there was considerable evidence that persons engaged in repeated keyboard activity are at a great risk of developing the type of symptoms suffered by this appellant. Dr Wigley disagreed with the conclusion that the appellant may have suffered ulnar neuritis. He explained at the hearing: "The characteristic feature of the type of complainant that we are engaged in is that the pattern constantly changes and what was true on one day is not necessarily true on another day. I didn't find any evidence of ulnar neuritis when I examined her. The fact that three doctors did not find it and one doctor did and confirmed it by an objective test, means that on that day she did had evidence of ulnar neuritis." Dr Wigley agreed that a disorder of the nervous system is multi-factorial but did not accept Dr Alchin's proposition that there were "a range of triggers" which might cause the problem. He considered that the use of the word "trigger" implied a pre- existing problem which was waiting to be exposed and that in his view was not correct. 5 Ms Watson submitted that on the basis of Mr Denholm's and Dr Zacharias's reports, together with Dr Wigley's opinion, there was evidence of muscular involvement in the appellant's problems which could have been related to inadequate posture. She submitted that this resulted in an initial acceptance of the claim. She submitted that it is clear that the characteristic of the workplace involved a property likely to cause injury in that the appellant was in a poor work position with poor ergonomics for between 5 - 7 hours per day doing data entry tasks which required fast repetitive movements. She submitted the work assessment carried out by the assessor, Ms J Hazlett, on 30 September 1997 confirmed poor ergonomics at the workstation. She submitted that there was no evidence to suggest that non-work activities were involved and that the appellant's only non-work activities were within the household and was shared with her partner. She submitted that evidence was given at the review hearing that two other people working with her then employer had suffered the same problem. Mr Corkill submitted that the appeal raised the issues of s.4, s.7 and s.73(1). He submitted that the issue was whether the work tasks carried out by the appellant in the work environment caused her present condition and that this was not satisfied because the medical evidence established regional pain syndrome/fibromyalgia for which there was no causal connection between that and her work tasks. He submitted that in relation to s.73(1), the respondent was entitled to cease payment of entitlements if it was satisfied on evidence which later came into its possession that the appellant was no longer entitled. I heard this appeal on the day following the hearing of the appeal by Teen (335/99), and in both appeals I had the benefit of hearing evidence. In Teen I heard evidence from Dr Alchin and in this appeal from Dr Wigley. As I have stated in the decision in Teen, the result of hearing evidence from both specialists gave me a clear picture of the background which has given rise to a large number of appeals on this issue. In Teen I found that the Consensus Meeting was convened for the purpose of formulating a policy which would enable the respondent to decline a large number of claims for what originally had been diagnosed and accepted for cover under the headings of "RS/" or "OOS". I found that the majority at that meeting considered that there being no diagnosable aetiology for the condition which created a regional pain syndrome it should not be entitled to cover under the Act. Dr Wigley took the opposite view and while he acknowledged that regional pain syndrome or fibromyalgia was multi-factorial, it was not something which was "triggered" by workplace conditions. He considered that the use of the word "trigger" was most inappropriate as it implied an underlying condition waiting to be exposed. In his view the nature of the work affected the body which demonstrated that effect by failing to perform in a normal way and exhibiting pain. I consider that a similar situation has arisen in this appeal as arose in the appeal by Teen, in that poor ergonomics in the workplace resulted in a constriction of the body and the muscles as a result of which there was the development of swelling and pain. The majority of attendances at the Consensus Meeting considered that various forms of non-physical stress produced the fibromyalgia. 6 I adopt the findings I made in Teen. I consider that the first and principal issue is that the nature of the workstation and the nature of the work resulted in the body dictating to the appellant that she could not continue to work in that position. I consider that some form of physical restriction occurred because of the nature of the work which amounted to a personal injury or harm and that the subsequent pain was only a result of that injury. The cause of the appellant's problem whatever its original diagnosis was that the nature of the work caused the body to malfunction with the result that she suffered pain which continues to exist to this day. While her concern for the inability to reduce the pain exacerbated the position, the actual cause still exists. There is no evidence that her activities outside the workplace contributed to the problem and there was evidence at the review hearing that two other persons in the same employment suffered from the same problem. I agree with Mr Corkill that the relevant sections are 4 and 7. However, I find that the appellant has suffered a personal injury within the meaning of s.4 which was the "muscular involvement" identified by Dr Zacharias and confirmed by Dr Wigley. I consider that as a matter of common sense that "involvement" occurred through the "distortion" of the body when in the poor work position with poor ergonomics for long periods. That caused the muscles to malfunction and thereafter produced the pain. The proponents of the "fibromyalgia theory" have gone one step past the originating cause and have concentrated on the evidence of pain which they attribute to non physical stress. However, as I explained in Teen the respondent and the specialists have overlooked the provisions of s.7(4). While that section excludes personal injury caused by "non physical stress" it clearly establishes that physical stress causing personal injury arising out of and in the course of employment must be covered. For the reasons I have already given I consider that the appellant's problems were caused by physical stress arising out of and in the course of her employment. The appeal is therefore allowed and the appellant's entitlements are to be reinstated. The respondent is to pay the appellant costs of $1,500 and also the reasonable costs incurred in Dr Wigley's attendance at the appeal hearing. If there is any problem in fixing those costs leave is reserved for counsel to refer the matter to the Court. DATED at WELLINGTON this /qth day of November 1999 A W Middleton District Court Judge Dca29599.doc(rd)