Stewart v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. NO /97 HELD AT TAURANGA 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 KIM STEWART Appellant (Appeal No. DCA 357/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of May 1997 APPEARANCES R MS Lake for appellant S J Simms for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a gradual process claim for repetitive strain injury. New evidence was admitted on the hearing of the appeal. The appellant applied for cover on 1 June 1996 with a certificate from her general practitioner, Dr F Pitsilis, certifying neck strain bilateral epicondylitis. In completing a questionnaire the appellant attributed her condition to work tasks in her employment in the University of Auckland Library lifting heavy books from low level to high level, and shifting stacks of books, a task that she carried out for one hour each day and had done so for three months prior to her application. She said the first symptoms were pains in her arms and neck. She described possible contributing non-work activities as piano playing, writing, driving and dishwashing. Her employer did not dispute the claim, in - 2 - fact in an employer's questionnaire the science group librarian indicated that other employees had suffered a similar condition. The Corporation declined the gradual process claim without obtaining a medical report because it appeared that the appellant's non-work activities made a material contribution. However, the Corporation undertook an internal review and obtained a letter from Dr Pitsilis and further information from the appellant. The Corporation confirmed its decision and the question went to review. The review officer considered the report from Dr Pitsilis. It is unnecessary to set it out at length, but simply to say that it did not express any view about activities that had contributed to the appellant's condition. It should be noted that the appellant suffered from scoliosis and may have been vulnerable to muscle strain and repetitive gradual process injury. The review officer dealt with the appellant's submissions about her non-work activities and evidence that the appellant gave at the review hearing. It appeared that the appellant had been playing for seven years although she had had a break. She began piano lessons again in April 1996 but after a few months she was unable to continue because of recurring pain in her arms. The onset of symptoms coincided with her library work and she had not suffered any symptoms connected with playing the piano in the past. She was completing three papers at Auckland University, and had eleven hours of lectures per week, each requiring some note taking along with research and assignments. The appellant was then aged 18 and she had engaged in what might possibly have been a similar extent of writing while she was at High School. She had not experienced any symptoms connected with writing and typing The appellant provided the review officer with a letter from Ms J Depledge, physiotherapist, expressing an opinion that the library work was the main contributing factor because the appellant came for treatment after two months of library work with symptoms affecting mainly her left forearm which she used to push books in while her right arm, the arm she used for writing, was unaffected. Later she experienced problems with the right arm after she had tried to change her shelving technique. The physiotherapist accepted that her studies might have exacerbated the right arm problem but discounted her piano playing as having had any impact. As to the piano playing, the appellant said that at times she had played for up to two hours a day, but not at an advanced level of musicianship. The review officer expressed concern that no specialist opinion had been sought in this obviously quite complex case and she referred the appellant to Dr Macedo, rheumatologist and specialist physician. He examined the appellant and reported on 24 October 1996. He described the onset of pain contemporaneous with her library job and the occurrence of symptoms mainly in the left arm on Friday nights when she was doing a four hour stint on the library desk. He described the mechanics of her stacking work and referred to her general physical health, including her scoliosis, and her account of the amount of time she had spent piano playing. His assessment was as follows: "The clinical findings today are of bilateral upper limb and upper limb girdle region pain. There was no evidence of a primary arthropathy, and no primary neurological - 3. lesion. The manner of the symptoms and physical findings are consistent with an overuse etiology. There are two possible components to the overuse, the first is the piano playing and the second is her work as a Librarian. The onset of symptoms in the left arm and with the library work would suggest that this is the more important etiology. One cannot rule out a contribution from the piano playing although the pain did not appear to be as specific to the playing activity. Nonetheless, she has also had to give up piano playing for the time being. The other component was the increased writing that she had at the time she was doing her exams. Overall, I think the work activity is the more important, but that contributions from the increased writing for her exams, and the piano playing cannot be ruled out. I would not however regard either the piano playing or the writing for exams as being the primary etiology as she has done these activities for long periods of time for years in the past without inducing similar symptoms." The review officer found that there was a particular property or characteristic in the appellant's library work which caused or contributed to her symptoms. She also found that the risk inherent in that work satisfied the requirements of s 7(1)(c). However, in relation to s 7(1)(b) she concluded that contributions from the appellant's increased writing for exams and her piano playing could not be ruled out as contributory factors in view of Dr Macedo's opinion. She found that non-employment activities made a material contribution and dismissed the claim. On appeal, a further opinion was received from Lee Gardiner, occupational health physiotherapist of Health Management Consultants, Rotorua. Counsel for the Corporation did not oppose the introduction of that evidence in line with the Corporation's essentially neutral stance. Leave was given for the appellant to provide the Court with information concerning Ms Gardiner's qualifications and experience and that has now been received. That material has now been provided. Ms Gardiner graduated in 1981, she is currently president of the New Zealand Society of Physiotherapists and she has considerable experience in her field. Her report set out detailed findings of physical examination and expressed the following conclusions: "Miss Stewart has signs and symptoms consistent with a gradual process injury and which correlate with her subjective and objective examination She is at significant risk of developing this type of injury due to her poor level of fitness, underlying scoliotic condition, subsequent surgery and on-going deformity of the spine, rib cage. This muscle and boney deformity / imbalance then affects the more peripheral joints eg should girdles/upper limbs with repetitive or heavy manual handling, or legs with repetitive walking, crouching, bending etc. Activities that cause the upper limbs to lift above 90 degrees load up the shoulder girdles and upper spine eg. lifting of heavy books. When these areas are also not working well through stiffness or weakness (as in Miss Stewart's case) this places more strain on associated muscles in the upper limbs and often causes over-use of forearm muscles. The risk is higher again when the task is done for longer hours, which does not give the muscles a chance to recover from the fatigue. I have had a number of clients who work as librarians and have had similar symptoms, because of the nature of the work - 4- Miss Stewart's symptoms are therefore not surprising given her background. Once the tissues are inflammed, any activity that involves forced or repetitive work will give rise to further inflammation, and therefore pain. In this case, dishwashing, piano playing etc. have been cited but any repetitive movements such as brushing of teeth, pot scrubbing, keyboard work, writing, baking can give rise to symptoms. That is not to say that they have caused the problem simply because they are painful when attempted. It is because these activities are using inflammed muscles that they are painful. The fact that Miss Stewart was playing the piano for several months before she experienced pain, and had done so previously for a number of years without pain indicates that this was not the causative factor in this injury. I was very surprised to learn that ACC had turned this claim down as I know of a number of very similar cases that have been accepted." Mr Lake submitted that the review officer adopted a view of Dr Macedo's report that was not correct. I consider that the review officer did not mis-state the conclusions in the report. Dr Macedo considered that the symptoms were more likely to have been caused by library work than from piano playing, but that he could not rule out a contribution from piano playing. The review officer, on the whole of the evidence, regarded that as a necessarily material contribution and that is the point at which the counsel for the appellant takes issue. In my view, the occupational physiotherapist's opinion affects the outcome. It attempts an analysis of the effect of librarian tasks on the appellant's body, taking into account her scoliosis and associating the case with Ms Gardiner's experience with other persons in a similar occupation. The opinion allocates the significance of household tasks to aggravating factors that tend to cause further inflammation of an existing condition, without having contributed materially to the onset of the condition. Assessment of the initial cause is not a process that can be performed precisely. The condition itself appears to be one that is discernible by its symptoms but is not easily attributed to a cause connected with specific tasks. A task that might have the effect of temporarily aggravating existing symptoms might not make any material contribution to the chronic form of overuse syndrome, unless the task is persisted in to the extent that it makes a material contribution to the continuation of the symptoms. Although s 7(1)(b) is not worded in that way, the effect is the same. To apply s 7(1)(b) it is necessary to ask questions that might not make sense from a medical point of view. For instance, it is relevant to know, in this case, first whether piano playing involved muscular activities that would have either caused or aggravated the soft tissue inflammation that appears to be associated with occupational overuse syndrome, and secondly whether the extent of those activities was such as to amount to a material cause of a condition of sufficient duration to amount to occupational overuse syndrome, or merely a temporary exacerbation of symptoms that did not have a material effect on the underlying condition. No doubt, if those kinds of questions could be answered with any precision, cases of this kind would not be difficult to resolve. A medically qualified occupational specialist may acquire sufficient expertise in the field of occupational medicine to be able to venture an answer to the questions. In this - 5 - case, Dr Macedo does not purport to have specialist qualifications in occupational medicine, and Ms Gardiner has undeniable experience in the field, but is not qualified in areas of general medicine. Ms Gardiner's view of the materiality of the appellant's non-work activities appears to be based on two particular propositions, namely that piano playing is no more significant than any other repetitive movements found in ordinary household activities and could only be regarded as giving rise to further inflammation of an existing condition, and secondly that the fact that the appellant was playing the piano for several months before she experienced pain and had done so for a number of years without pain, is an important indicator that the activity was not the causative factor in the injury. Dr Macedo did not appear to place much faith in regarding piano playing as a significant cause. On balance, regarding all the material now before the Court, I find that s 7(1)(b) has been satisfied. It is obvious enough that determination of the crucial question would benefit from further inquiry of a more highly specialised kind, but it is in the nature of these claims that they have to be resolved upon the evidence that is available if it is reasonably comprehensive even though some questions remain unanswered. In the event of a finding in favour of the appellant under s 7(1)(b), counsel for the respondent contended that the question of significant risk under s 7(1)(c) should be reviewed. That question is whether persons performing the employment task in question incurred a significantly greater risk of suffering overuse syndrome. I think that the review officer's decision should be left undisturbed. There is evidence from more than one source that the activities of shelving books carries an enhanced risk, and there is also evidence that the risk was significantly greater in the case of the appellant with her scoliosis. The effect of decisions such as in Bilkey 67/94 and Mallia 31/97 is that the use of the word "persons" in s 7(1)(c) extends the meaning to any person including a person with a predisposition to the injury. The appeal is allowed with the result that the appellant's condition is found to be a gradual process work injury which occurred while she was employed as a librarian with the University of Auckland. Counsel for the respondent submitted that the respondent should have costs if the appeal turned in the end on the physiotherapist's report. The report should have been furnished to the Corporation when it was available, and an application to provide evidence on the hearing of the appeal should have been made in good time for the Corporation to consider whether it should make further inquiries or call evidence. In view of that, the appellant will have no costs but no further order is made. DATED at WELLINGTON this day of June 1997 D A Ongley District Court Judge