Sibley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 338 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KAREN LEE SIBLEY of Christchurch Appellant (Appeal No. DCA 113/99) 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 22nd day of October 1999 APPEARANCES/COUNSEL C Hutchison, advocate for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is limited to whether the appellant has satisfied the criteria under section 7(1)(c) of the Act. The appellant was employed in the manufacture of costume jewellery from 1985. In May 1995 she commenced work for Marc Bendall Limited. In September 1996 she began to suffer back pain and after consulting her General Practitioner in February 1997 she was diagnosed with myofascial pain syndrome and thoracic outlet syndrome. She lodged a claim for a gradual process injury on 17 February 1997. 2 After the respondent had received a report from Dr W E Turner, a Specialist in Occupational Medicine in May 1997, the appellant's claim for cover was declined. The appellant applied for a review of that decision and the Review Officer upheld the respondent's primary decision. The appellant appealed against that decision. On 2 October 1998 His Honour Judge M J Beattie issued a decision (214/98) in which he held that the appellant had satisfied the criteria under section 7(1)(a) and (b) but directed that the case be remitted back to the Review Officer to obtain further evidence and to consider the question posed in section 7(1)(c). As a result, the Review Officer referred the issue to Dr Turner with the request that he give his opinion on whether there was a risk that the appellant suffered an occupationally related condition which would be significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. In a report dated 16 October 1998 Dr Turner stated: "I can not however accept that this work is any different from other types of sedentary postural activity such as computer work or clerical activity when gaze is directed towards the work surface, eg. viewing the keyboard or copy positioned between the screen and keyboard, making notes or reading. Under normal circumstances operators undertaking these types of occupational tasks would be expected to get aching fatigue in the neck and shoulders of a low grade nature which would resolve over night and over the weekends and which would clear up after changing position, modifying the task or after undertaking stretching exercises." The Review Officer then referred Dr Turner's report to Dr K Morris, a Director of Workwise Christchurch, who stated: "I am not aware of any epidemiological evidence that looks at the risk of jewellers suffering from pain syndromes. Dr Turner has not made reference to any such evidence either. However Dr Turner has related evidence from another study where there were similar work place characteristics as described in the case of the claimant ie. Constrained posture and the undertaking of precise movement. He notes from this study that the predictor of development of a pain syndrome is not the ergonomic or physical work environment but psychosocial factors which can be part of the non-work environment and the work environment. That is to say that it is not the work as a money handler or a jeweller which increases the risk of suffering from a pain syndrome but whether the individual is subject to psychosocial stress - a factor which is independent of the occupation or employment task." The Review Officer concluded that on the basis of Dr Turner's report, the work undertaken by the appellant for Marc Bendall Limited "was no different from other types of sedentary postural activity such as computer work or clerical activity when gaze is directed towards work surface." It is against that decision which the appellant now appeals. 3 The appellant provided a further opinion from Dr R A D Wigley, a Rheumatologist, which included a number of articles in relation to this problem. In one article prepared by Dr Wigley, he notes: "At present then there is scope for differing opinions influenced by various biases and numerous cross sectional studies which do not distinguish cause from effect or the operation of a hidden variables. Obviously my biases lie with the patient as a clinician trying to do my best for my patients who are suffering from an unpleasant complaint which can be prevented by appropriate management practices." In relation to the particular issue as to whether or not persons performing that task are at greater risk than those who do not perform that task in that environment, Dr Wigley said: "This presumably includes those engaged in similar occupations in which the tasks and the muscle use required is similar. If a study of jewellers was to be compared with a study of the general population, I would be surprised if the rate of symptoms was not higher among the jewellers but no such study has been done probably because jewellers engaged in the particular type of task that she was engaged in are so few that it's unlikely that anyone would have been motivated to conduct such a study. Thus failure then to find such a study in the literature does not permit a negative conclusion." Dr Wigley's conclusion was that the requirements of section 7(1)(c) were fulfilled. Mr Hutchison submitted that on the basis of Dr Wigley's report the appeal should be allowed. He submitted that Dr Turner did not undertake a site assessment and observe the appellant demonstrating her work activities. He submitted that Dr Turner did not specifically address the nature of the appellant's work as a jeweller. Mr Corkill submitted that neither of the doctors actually visited the appellant's work environment and that it is now some two years that since she stopped working. Mr Corkill submitted that on the basis of Dr Turner's evidence, there was nothing particularly remarkable about the appellant's situation. He submitted further that the evidence is that any person performing repetitive tasks forcefully or awkwardly is at risk of developing the same sort of injury as the appellant. Mr Corkill submitted further that Dr Turner was involved in the body of Specialists which produced a consensus opinion in March 1998 on the issue of fibromyalgia in which it was concluded that ".. the tender points on which regional pain syndrome/fibromyalgia are diagnosed are present as a preexisting state causally based on factors unrelated to the work environment." Mr Corkill submitted that that finding was not available to the Review Officer when he reached his decision. However, he concedes that whether or not that material is accepted it is a separate issue from the issue of the requirements of section 7 (1)(c). In answer to Mr Corkill's submission in regard to the finding of the Consensus Meeting, I have already concluded in Teen ( 335 199) that I consider the findings to have been based on questions of public policy in order to reduce the 4 possible number of claims accepted for cover and should therefore not be accepted by the Court as a general basis for declining an appeal. In so far as the particular issue is concerned, the work done by the appellant involved her sitting in a cramped manner and holding the jewellery in the one hand and performing fine work with the other with the head bent over. I consider that that combination of concentrated activity is much more than Dr Turner's observation of work "when gaze is directed towards work surface." The particular issue then is whether the particular type of tasks undertaken by the appellant placed the appellant at a significantly greater risk of suffering the diagnosed personal injury while performing that employment task in that environment than for persons who do not perform that task in that environment. Or Turner appears to make a general observation that any type of work undertaken on a repetitive basis with a physical load with certain prolonged postures can give rise to similar type problems. On the other hand Dr Wigley considers that there is no foundation for those findings. The issue is whether persons generally who do not perform that task in that environment are less likely to suffer that personal injury than for persons engaged in that type of task in that environment. While persons engaged in a wide range of occupations may well suffer similar problems, the issue is whether this appellant in this environment and undertaking this employment task was at significantly greater risk of suffering the problem than persons who do not perform that task in that environment. I consider that on the balance of probabilities it was more likely that this appellant employed in performing this type of task in this environment was at a significantly greater risk than for persons who do not perform that task in that environment and that she has satisfied the onus on her that section 7(1)(c) applies. As the appellant has now been involved in two separate review hearings and an additional appeal, she will be awarded $1,200 towards her advocacy costs together with the cost of Dr Wigley's report. DATED at WELLINGTON this /9th day of November 1999 A W Middleton District Court Judge dca113-99.doc (nr)