Sibley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 214 /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 KAREN LEE SIBLEY DCA 303/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of September 1998 APPEARANCES: Mr C Hutchison, advocate for appellant Ms J Cheyne, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover for a gradual process injury pursuant to s7 of the Act arising out of her employment as a jeweller. N Background In February 1997 the appellant, then aged 29 years, lodged a claim for cover in relation to pain to her shoulders, neck and upper spine which her GP, Dr Cook, diagnosed as being OOS. Dr Cook completed a gradual process questionnaire in which he stated that he had diagnosed the appellant as suffering from cervico-thoracic dysfunction and myofacial syndrome. He stated that working over a bench in a tense hunched position for eight hours a day had been the cause of her condition. In the employer questionnaire the appellant's employer, Marc Bendall Ltd, confirmed that the appellant's work tasks required her to be sitting at a work bench for several hours at a time without a break, or alternatively, standing at a polishing motor polishing, again for long periods. The appellant's job description is best described by Dr WED Turner, specialist in occupational medicine, to whom the appellant was referred in May 1997. He described it as follows: "Her job description is that she works at 40 hour week assembling gold jewellery. She works with gold hollow rings cutting these items with metal cutters to the appropriate shapes arranging them either as an earring or linking them together as a chain soldering them accordingly. The tools her trade include tweezers, pliers, soldering torch, cutters and various mandrills used for shaping. She also uses a motorised buzzer with different attachments for sanding, cutting, etching and polishing. Polishing is also done on a larger machine. The work is hand loaded and fined requiring intense forceful hand activity when using the tweezers (held in the right hand), when etching (the tool being held in the left dominant hand, the item in the right) and when polishing on the machine." Dr Turner's report of 2 May 1997 to the Corporation went on to state, inter alia: 3 Diagnosis There are a number of diagnoses present required to explain the totality of Ms Sibley's condition. Firstly I would agree with her GP she has a myofascial pain syndrome affecting the scapular elevator muscles particularly the upper third of the trapezius, the levator scapulae and the rhomboids. Secondly she has evidence of the so-called thoracic outlet syndrome on the right most likely to be arising from compression of the branchial plexis in the interscalene triangle through tension within the scalenus muscle. I could not however exclude mechanical entractment through a cervical rib or a fibrous band particularly in light of the faint bruit audible in the root of the neck. Thirdly she had an untoward posture with forward drawn shoulders, protracted and slightly winged scapulae with a tendency to slump sit with her posture improving on standing. Fourthly I think that she has developed muscle imbalance across the chest wall and shoulder blades with hypertonicity in the pectorales and scapular elevators with weakness in the corresponding antagonists resulting in her postural imbalance. This is the so-called upper crossed syndrome. Relationship to her work as a jeweller Clearly there is a relationship to her work as a jeweller. The task she was undertaking lacked variation being predominantly sedentary, tended to involve the adoption of strained statically loaded postures there being little in the way of variety to relieve fatiguing muscles. Furthermore, the nature of her task was such that she had to undertake precise controlled movements requiring tension not only of her neck, shoulders and arm muscles but also the ocular muscles. Relationship to any pre-existing condition In my view there are a number of non-occupational causes that have contributed to her overall condition. Firstly, she clearly adopted a slumped sitting posture which was evident in my examination a known cause of tension within the scapular elevator, chest wall and neck muscles. Secondly, there were a number of individual stress factors present mainly arising through a lack of job satisfaction and a concern about the deteriorating effect her work task was having on her vision. Thirdly, she was clearly having problems with her vision consulting the optometrist on several occasions, visual acuity problems being a known cause of muscle tension through the influence upon head position and body posture. Fourthly, there were work environment pressures and stressors there being conflict with her employer in the latter two months of her tenure which in my view contributed significantly to the development of her pain condition through increased muscle tension and trigger point development. 4 On the basis of Mr Turner's report the Corporation declined the appellant's claim for cover, contending that it did not meet the criteria required under s 7 of the Act for personal injury caused by gradual process. This decision was confirmed by the review officer on review, even though at that review hearing the Corporation accepted that the criteria required to satisfy s 7(1)(a) had been met. The review officer in fact found that none of the tests in s 7(1) had been met and therefore the appellant was not entitled to cover. No further medical evidence was sought to be adduced for the purposes of the appeal to this Court but the Court was shown photographs of the appellant's work station which have been of assistance in getting a clear picture of her work place. For the appellant to obtain cover for her injury she is required to satisfy the three-fold test contained in s 7(1) of the Act. The provisions of that section are as follows: 7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if- (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. In her submissions to this Court Ms Cheyne, counsel for the respondent, conceded that notwithstanding the review officer's findings, the respondent 5 accepted that the appellant's work tasks contained a particular property or characteristic which caused or contributed to her personal injury by gradual process. This property or characteristic was the necessity to adopt static postures and to undertake precise controlled movements which placed tension on the appellant's neck, shoulder and arms. Counsel notes that this state of affairs is supported by the findings of Mr Turner and of the appellant's GP, Dr Cook. This Court confirms that this concession by counsel for the respondent is wholly appropriate and it is formally recorded that the appellant has satisfied the necessary criteria required under s 7(1)(a). Counsel for the respondent further submitted that the non employment activities of the appellant contained the particular property or characteristic to a material extent. She submitted that certain tasks the appellant undertook outside her employment also involved the adoption of constrained postures of a similar nature to that which she adopted in the course of her employment. She submitted that the appellant could not satisfy the negative test required of s 7(1)(b). Mr Hutchison, advocate for the appellant, submitted that Dr Turner's assessment of her non employment activities such as decorating her home, gardening and reading were all greatly exaggerated in terms of their frequency and materiality. He submitted that the evidence given by Ms Sibley at the review hearing made it clear that she did some home decorating on some Saturdays in the winter, her only reading consisted of the newspaper and TV publications and her gardening was simply generally tidying up. 6 Mr Hutchison submitted that the non work activities were so minimal that they could not be regarded as having contributed wholly or substantially to her injury. So far as para 7(1)(c) is concerned, counsel for the respondent submitted that this particular question had not been considered by any of the medical people who had contributed to this case and that as this Court had on previous occasions indicated that some expert evidence was required before a finding under s 7(1)(c) could be made, it was necessary to refer the matter back to the Review Officer for the obtaining of such expert opinion pursuant to regulation 16 of the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992. Mr Hutchison for the appellant accepted that there was no such evidence and agreed that if the matter were to be decisive then there ought to be a reference back for that purpose. From the foregoing it is evident that this Court is really only in a position to consider s 7(1)(b) as it concurs in the present circumstances with counsel for the respondent's submission that there is no evidence upon which the Court could make a finding under s 7(1)(c). Insofar as 7(1)(b) is concerned the focus must be on whether the property or characteristic is found (or not found) to any material extent in the non employment activities. In that context this Court has previously ruled that the word "material" means causative. This recognises the fact that whilst a property or characteristic may be present its presence may be so insignificant as to not be in any way likely to be causative of the injury which the person is suffering. 7 In his report Dr Turner talks of pre existing conditions as contributing to her injury but his opinion in that regard I find to be irrelevant to the test for 7(1)(b). It is well recognised that the injured party must be taken as she is found, that is if she is more susceptible to a particular injury because of her physical make up then that cannot be a disqualifying feature and it certainly is not a relevant consideration under 7(1)(b). Furthermore Dr Turner talks of stress, in particular acuity problems. I find that in the context of Dr Turner's report those stressors are physical stressors and thereby not excluded by s 7(4) of the Act. Whilst there may be some non physical stress present I find that there is clearly physical stress and clearly the criteria for s 7(1)(a) having already been found to be present, the fact of some non physical stress is irrelevant for determining entitlement. Having considered the evidence, and particularly the evidence of the appellant herself I find that there is no evidence which supports the proposition that the causative property or characteristic found to be present in her work place is to be found to any material extent in her non employment activities or environment. I am therefore satisfied that the appellant has established the negative proposition required under 7(1)(b). Accordingly then I find that the appellant has on balance made out a case of satisfying the criteria of $7(1)(a) and (b). In order for her to be entitled to cover it requires a consideration of the test contained in 7(1)(c). There is no evidence on which this Court could make a finding and therefore pursuant to rule 16 of the Appeals Rules this appeal is remitted back to the Review Officer for him to obtain such expert medical opinion evidence as he thinks necessary on the question posed in 7(1)(c). 8 For the avoidance of doubt this Court directs that in the event of the Review Officer receiving advice that the question posed in 7(1)(c) is answered in the affirmative on the balance of probabilities, this appellant is entitled to cover under the Act in respect of her injury arising from her employment with Marc Bendall Ltd. Appeal remitted accordingly. DATED this day of october , 1998 feather M J Beattie District Court Judge sibley.doc