Cross v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 145/95. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUNE BARBARA CROSS of 48 / 94 0349. Whangarei Appellant (Appeal No. DCA 218/94) 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 November 1995 APPEARANCES CL Cook for appellant G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON The appellant claims to have suffered personal injury by accident under ss.4 and 6 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant was teaching at a primary school when she suffered a subarachnoid haemorrhage. On 16 December 1993, the appellant submitted a report from her physician, Dr Orpin, who attended her at the Whangarei Hospital. The report of 10 March 1994 states: "The above was admitted here on 16.12.93 with features of a sub arachnoid bleed and was transferred to Auckland Hospital on 17.12.93 and had a cerebral aneurysm clipped at the neuro surgery unit. Following the proceedure (sic) 2 she developed severe orso spasm and suffered severe brain injury. She is left with a severe residual neurological deficit, and is not expected to make a complete recovery. She remains hospitalised and is having vigorous rehabilitation training. I have previously be (sic) asked to arrange ACC cover for her but it is my view that her problem is unlikely to be accident induced. She has a stressful job and the day preceeding (sic) her admission has been involved in shifting her room at school which involved some heavy lifting. The morning of her admission she first developed features of sub arachnoid bleeding. It could be argued that heavy lifting could be associated with raised intra cranial pressure which may have induced the aneurysm to rupture, however the time sequence preceeding (sic) the first evidence of sub arachnoid bleeding was about 18 hours, which I feel argues against a primary traumatic basis to rupture of the cerebral aneurysm . If you wish a further neurological opinion, I suggest you refer her to Dr Richard Frith, Neurologist." The report from the Principal of her school stated that towards the end of 1993 the appellant was under a lot of stress and was suffering from a heavy cold. She stated that the appellant had complained of pain down the left side of her face during the last two weeks of the term. The report stated that the appellant had had to complete an ASTU paper during mid-December which took 50 hours of her own time when she was also required to continue preparation for the daily running of her classroom. At the same time school reports had to be completed and progress cards recorded. As the appellant was moving to a different classroom in the following year, she was also required to move her gear to make her classroom available for new staff. The report also stated that the appellant had a very difficult child in her class for some six months who was under the Special Education Service, but was given very little support. This child was a disruptive influence in the classroom and the appellant had to be extremely patient in dealing with him as well as the other 32 children in the class. On 7 April 1994, the respondent declined the appellant's application for cover against which decision the appellant applied for a review. The appellant submitted a written statement to the review officer in which she said: "I was a teacher employed by Whau Valley Primary School teaching J2 and Standard I's. 3 Towards the end of the last school term in 1993 I was under a considerable amount of stress, I had been studying for a higher education Diploma of Education. I was moving my rooms from Bl and B3 for the 1994 school year. This involved moving all my personal belongings, resources and re-arranging the furniture. It was not an easy task which involved heavy lifting. I was suffering from a severe headache and facial neuralgia and impairment of vision. I went to a woodworking function on the evening of 15 December 1993 but I was feeling unwell with a severe headache and returned home early. I would not have gone to school on 16 December 1993 but it was the last school day of the year, school finished at midday and I was looking forward to the end of year break-up function. I collapsed in the cloakroom at approximately 9.00 am on the morning of 16 December 1993 and was discovered by some school pupils. I hit my head on radiator pipes as I went to the floor. The moving of the rooms would only occur every few years. I could have asked more senior students or the caretaker to assist me but this year I felt that I could do it myself so I had no assistance. It is not a normal activity which I would undertake as a teacher. It is also very busy at that time of year and I didn't want to put anybody out." After it received this information the respondent referred the file to its medical officer who provided a memorandum on 12 July 1994 in which he stated: 'A significant proportion of the population have congenital cerebral aneurysms. Most fortunately don't burst, but of those that do the most majority do so as a spontaneous event. I think Ms Cross would have been in the group because the haemorrhage occurred 18 hours after her stressful day." The appellant submitted a letter from her General Practitioner, Dr Cottee, which stated: "In reply to your letter dated 17 May 1994 I wish to advise you that I have performed a literature search regarding the etiology and prognosis of subarachnoid haemorrhage. This search covers all relevant articles regarding the subject in the last six months and 31 papers have been reviewed. The most important factor that has come out of this literature search relates to the fact that smoking cigarettes and the intake of alcohol is the only consistent factor which is related to the development of subarachnoid haemorrhages in susceptible people. The other important factor regarding outcome related to the early recognition of the fact that a subarachnoid haemorrhage has occurred and then it is important that these people are referred for early surgical intervention. Because of the nature of the bleeding within the brain the outcomes tend to be relegated to three main 4 categories, that is death, reasonable recovery and good recovery. In one follow up study quoted the three to six month results indicated that 56% of patients were classified as having made a good neurological recovery while 23% suffered some morbidity. As regards the onset of the illness the Oxford Textbook of Medicine states that the onset is very sudden with severe headache and consciousness is often impaired. One could theorise that physical lifting could increase a person's blood pressure and therefore increase the chance of a subarachnoid bleed occurring but there is no way of providing any conclusive proof of this happening. One could also theorise that the bleeding may have started as a very small leak from the blood vessel involved and could well have caused her to have a bad headache and to feel unwell. This could have happened over the hours or even days prior to the catastrophic event but it is very difficult to be categoric about these statements." The review officer was concerned about the nature of the furniture which the appellant had had to move and also noted that the basis for the claim was stress. The review officer obtained further information from the Principal of the school in which she stated that the appellant had apparently lifted a wooden bookcase, an art table and some banana boxes full of books. The review officer's finding was - "As far as the implicated physical effort or physical strain bringing about the condition is concerned, I do not consider the evidence is persuasive in showing this was causative. The fact that the applicant experienced headaches following the lifting on 15 December 1993 is unacceptable as an early indication to the presence of the condition brought about through the implicated lifting in view of the previous history over two weeks of headaches and facial pain." The review officer considered that the appellant's condition was not caused by the lifting and moving of articles at work and declined the application. Ms Cook conceded that the basis of the claim before the review officer was that the shifting of the classroom was the cause of the stress and that the headaches suffered by the appellant in the previous two weeks were caused by a cold. She submitted that s.6 refers to "physical effort" or "physical strain" which is abnormal. She referred me to the decision in O'Flaherty v ARCIC 59/94 which was a claim for cover in relation to a myocardial infraction suffered by a female prison officer following extreme verbal abuse and threats. In that case I said: "I consider that the whole approach of the 1992 legislation in relation to this aspect of cover is that it contemplates physical effort and physical strain by the person who suffers the episode rather than the onset of mental stress." Ms Cook submitted that the question of physical strain should be considered in the wider sense in relation to all the work which the appellant had been involved at the school for the period leading up to the incident. She submitted that taken together those activities at the end of a busy school year would have involved long hours and considerable energy. Ms Cook submitted that on the balance of 5 probabilities it was more probable than not that the cerebrovascular episode was caused by effort or physical strain. She submitted that this was not discounted as a possibility by the medical evidence. Ms Hancock submitted that in order to have cover under the Act it is necessary that the cardiovascular or cerebrovascular episodes comes within the terms of ss.4 and 6. Ms Hancock submitted that the appellant suffered a cerebrovascular episode and it can then only be considered as a work injury if it falls within s.6(1) of the Act. S.6(1) provides two requirements which must be satisfied, being: (a) The episode must be caused by physical effort or strain arising out of and in the course of employment; and (b) That effort or strain must be abnormal an application or causative in intensity for the person suffering it. Ms Hancock submitted that on the basis of Dr Orpin's report the aneurysm cannot be associated with any heavy lifting so that it could not be said that the episode was caused by physical effort and physical strain which was the view of the respondent's medical advisor. She submitted further that Dr Cottee was not prepared to say that the episode was caused by any physical effort or strain, but only that the strain may have increased the chance of causing the bleed. Ms Hancock submitted that it was of significance that the Principal had referred to the fact that the appellant had suffered continuous headaches and pains for some two weeks prior to suffering the aneurysm which must therefore raise doubt that the lifting could be implicated in the problem. Ms Hancock referred to s.3 of the Act in relation to whether or not the episode arises out of and in the course of the appellant's employment. In order for that to be the case, s.3 requires - (a) the injury occurred while an employment task is being performed at the place of employment; and (b) the injury would not have occurred but for the person being in the place of employment. She conceded that the appellant's injury could be said to have occurred while an employment task was being performed at the place of employment, but that the medical evidence did not support the "but for" test in the definition of "arising out of employment" because the evidence showed only that the cerebrovascular episode was a possibility arising out of the lifting that the appellant had undertaken. She submitted that if there is only a possibility of a link it could not be said that the injury would not have occurred but for her being in her place of employment. I agree with Ms Hancock's submission that the onus is on the appellant to show on the balance of probabilities that the cerebrovascular episode was caused by physical strain or effort arising out of and in the course of her employment and that that effort or strain was abnormal in application or excessive in intensity. I consider that the medical evidence leaves considerable doubt that the lifting episode was the cause of the problem. The appellant had suffered headaches for some two weeks prior to the incident and the medical evidence appears to indicate that this could be a precursor of a cerebrovascular episode. The effect of the 1992 legislation is as I suggested in O'Flaherty that "it contemplates physical effort and physical strain by the person who suffers the episode rather than the onset of mental stress." While this appellant had certainly good ground for saying that she had been under considerable mental stress for some time, the medical evidence does not support the claim that the lifting and moving of the furniture caused the cerebrovascular episode. In fact the most that can be said of the medical evidence in relation to this aspect is that it may be a possibility. Accordingly, the appeal must be dismissed. DATED at WELLINGTON this 20 day of December 1995 beingedwin. A W Middleton District Court Judge dc218-94.doc(rd)