Van Oossanen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 120 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LENA DOREEN VAN OOSSANEN of Palmerston North Appellant (Appeal No. DCA 152/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of September 1996 APPEARANCES Mr A R V Rowlett - advocate for appellant Mr P J Drumond for New Zealand Post Limited (appellant's employer) Ms L Mckenzie for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant has cover for occupational overuse syndrome pursuant to s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant who was then employed by New Zealand Post as a mail officer and had been in that position for some 31/2 years injured her shoulder while lifting furniture at her home on 9 September 1995. She received medical attention on 11 September 1995 and on 12 September 1995 the respondent accepted her claim as being a non-work injury. As a result certain benefits were paid to the appellant. On 20 November 1995, the appellant lodged a further claim in respect of the same injury on the grounds that it was the result of occupational overuse syndrome. Her 2 employment consisted of sorting mail for approximately 41/2 to 5 hours per day and the task was very repetitive. In her Gradual Process Questionnaire she stated that the pain in her right shoulder had occurred at about midday on 9 September 1995 while lifting furniture at her home and that the pain had persisted. The employer did not accept that the appellant had suffered a work injury, but the appellant's general practitioner was of the opinion that that was the cause of the problems which affected both her arms and the right shoulder. The problem apparently improved after ceasing work and responded to physiotherapy. The appellant was referred to Mr Davey, an orthopaedic surgeon, whose report of 14 February 1996 states: "In response to your letter of 1.2.96 I arranged a consultation with Mrs Van Oossanen, and she was seen on 14.2.96 for the purposes of providing the medical report you asked for. POSTERIOR THORACIC PAIN Mrs Oossanen states that she was perfectly well until 9.9.95, when she noticed discomfort in the upper thoracic region, adjacent to the medial border of her right scapula. This came on soon after she had helped her husband move some furniture at their home, but she was not aware of any discomfort during this activity, nor did she feel any specific strain while doing so. However over the next few hours, pain steadily increased in intensity, until she says that she was almost in tears and could not find any position of comfort. Despite this she did not seek medical attention until 2 days later when her General Practitioner diagnosed a muscle strain. She was then provided with analgesia, and referred to physiotherapy. Although the really intense acute pain settled, she has continued to experience significant discomfort in the same area since that time, despite regular physiotherapy and restricted activity. She says at this stage the pain varies in intensity, but is almost constantly present. With certain movements there is a sharp or intense pain followed by a more deep-seated ache. She says that when she first wakes up in the morning she is relatively comfortable, but an hour or two of activity provokes these symptoms once again. Despite the discomfort she is no longer taking any analgesia regularly, nor does she take medication for any other condition. She says that she is otherwise fit and well and there is no past history of any bone or joint disease. She has not had any previous injury to the thoracic spine or shoulder girdle region. In the last few months she also developed some discomfort across the shoulders and in the upper arms, and at times has felt tender spots in the muscles in these areas. However, these have tended to come and go and have not been constant in any one area. She has not been aware of any associated anaesthesia or paraesthesia in the chest or arms. She has previously worked as a mail sorter at NZ Post for the last 3 years. She has not had any symptoms of this type associated with her work. However because of the symptoms, she has not been able to work since the problem began. 3 On examination of her thoracic spine and shoulder girdles today there was no obvious abnormality or deformity on inspection. On palpation she was tender over the thoracic spinous processes at about To level, extending to the right side to the medial border of the scapula. There was no tenderness elsewhere. On forward flexion she could bend to touch her toes with the fingertips. There was normal extension and lateral flexion of the spine. There was a little restriction of spinal rotation, with some discomfort. Although she could put her shoulders through a full range of movement, elevation and abduction of the right shoulder provoked some discomfort in the posterior thoracic region. There was no sign of any muscle wasting or weakness. X-rays of the chest and right scapula today at Mercy Radiology look normal while films of the thoracic spine show osteophytic lipping at the anterior margins of the T6/7 dis space. At this stage I am unable to give a precise diagnosis as to the cause of this lady's symptoms. I do not think it is a simple muscle strain, as there is no specific history of injury which would account for this, and I would have expected a simple muscle strain to have improved markedly, if not resolved completely, over the length of time since her symptoms began. I also do not think that this is related to her occupation. Her symptoms began at a time when she was not working, and have continued, despite a long period away from her normal employment. While I am unable to give a specific diagnosis at this time, I certainly feel that further investigation is warranted, as there are a number of possible conditions which could give rise to the sort of symptoms that she complains of. The area of osteophytic lipping at T6/7 corresponds to the region of her discomfort. This x- ray appearance suggests deterioration of the disc at the level and her pain may well be referred from this disc lesion. However a primary bone or musculo- skeletal soft tissue lesion are other possibilities. In addition to the basic x-rays which I arranged today I would recommend that the next stage in investigating this would be a full blood screen, and a Nuclear Medicine bone scan. If this failed to delineate any other specific area of pathology, then a CT and/or MRI scan of the spine would be the next step. I will send a copy of this report to Mrs Oosanen's (sic) General Practitioner, Dr Drake, and if he wishes me to arrange these investigations I will do so." This report followed a report from the appellant's general practitioner, Dr Drake, dated 8 February 1996 which had stated: 'I write in reply to your letter of 1.2.96. I understand the Corporation has declined a claim relating to occupational overuse syndrome. I understand she has made application for a review, through Mr Alan Rowlett of Accident Compensation Advisors. It is my clear opinion that Mrs Van Oossanen is suffering from occupational overuse syndrome. Her symptoms first occurred on 10.9.95, after she had been 4 moving furniture at home. She and I both attributed the pain to this activity, and she had painful muscles around her right scapula. A muscle strain such as this would normally be better within ten days. She came back to see me three times over the next four weeks, and it became more obvious that the pain in her right shoulder was not a muscle strain but in fact was due to occupational overuse syndrome in her job as a mail sorter at the Post Office. Mail sorters generally have a high risk of OOS. In other words what I am saying is that the original pain she got in her right shoulder which had been attributed to strained muscles, was in fact OOS from the start. It is common with OOS that the initial pain or disability is not in the first instance attributed to the work activities which the patient undertakes. This is in my opinion what happened with Mrs Van Oossanen. It is unfortunate that she had to make two ACC claims, and that the Corporation has chosn (sic) to pay Mrs Van Oossanen weekly compensation and home help expenses on her first claim for a strained right shoulder. In my opinion this does not represent the true situation, and this should be corrected urgently. If you require any further Specialist consultation I would suggest Dr R Wigley of Palmerston North who is an expert in occupational overuse syndrome. In my opinion there should be one accepted claim in this case, and that is the case for occupational overuse syndrome." On Dr Drake's advice the appellant was referred to Mr R D Wigley, a consultant rheumatologist, whose report of 16 March 1996 states: "Thank you for asking me to see her. I am sure you are right that this is an occupational overuse syndrome. Thank you also for sending Dr Davey's report and the report from Jenny Marshall. Much depends on the occupational history which has not been detailed. OCCUPATIONAL HISTORY Before having her family, now 8, 7 and 3 years old, she worked in retail work and was successful in that. She then worked in the mail sorting work with NZ Post three and half years ago and has worked there until having to give up on 10.09.95. She tried to return in January but lasted only a fortnight. She worked normal house of 22 hours a week but usually did overtime extending this up to 30 hours. I have seen the work stations that the mail sorters work at. They are reasonably well designed but there is definite room for improvement, especially with respect to individuals. For instance they have to turn to the right and the left and can spin the chair to avoid twisting but being short, if she puts the chair up high enough, she can't reach the footrest to do this. If she has the chair low enough to do that then she has to reach too high. Another problem is that many of the commonly used pigeon holes are not at the centre as was 5 apparently originally planned. She had always had more trouble with larger envelopes than the smaller ones. I am not quite sure why. They also had to lift trays of letters out of trolleys which were quite deep and this involved reaching over from the chair, though later I understand they were told to walk over to the trolley. A major factor in producing this kind of symptom is setting the pace of work too high. They were monitored for a production rate, a practise which I understand has been prohibited in some countries because it induces symptoms. SYMPTOMS It is important to note that she developed her first symptoms only a month after starting the job. She did not report this as she felt that it was part of the normal routine as a number of her colleagues had the same problem, and indeed I have seen some of them myself. At one stage an Officer of OSH visited and she did tell the OSH person about this. The symptoms increased considerably after moving some furniture. This, in retrospect may have inappropriately been blamed for her symptoms but that activity may well have aggravated preexisting (sic) symptoms. Initially she had pain between the scapula and the spine on the right. At times it became quite intense so that she had to stop work. She has some stiffness in the mornings but this is brief. She is now sleeping satisfactorily. She has considerable frustration, a degree of depression and fragility of mood. Rest pain persists but she no longer has night pain. EXAMINATION Her grip strength on the right is 26Kgs and the left 27Kgs. She is right handed. She has tender points on both sides of the neck anteriorly, over the right gluteus, the right trochanter, right occiput and upper angle of the scapula. The most pronounced tender area is over the Rhomboids between the scapula and the spine. She has a full range of shoulder movement though forced abduction causes pain. The movement which seems to bother her most is reaching to the left shoulder with the right arm. PRESENT SITUATION She is needing home help as she has difficulty with the usual domestic tasks, preparing vegetables, doing the clothes, making the beds. She can write for only ten minutes and she has difficulty driving. DIAGNOSIS Occupational Overuse Syndrome. This is atypical in that this muscle area is not commonly affected but the nature of the activity determines the site. This does fit 6 in with the type of work that she was doing with repetitive twisting and lifting out to either side. TREATMENT She has had various forms of treatment with limited, if any, effect. She gets some ease from Neurofen and Di-gesic, though the latter made her feel rather strange. She doesn't think the acupuncture has helped. Exercises definitely make it worse so should be discontinued. Manipulation of her dorsal spine gave a somewhat dramatic cracking sound but had dubious benefit. This was evidently suggested on the basis of very minor lipping of the dorsal spine which I do not feel sufficient to account for symptoms. The bone scan requested by Mr Davey to exclude more sinister possibilities was negative. REHABILITATION I don't think that further passive treatments are going to be of any help to her and that she needs supervision by an Occupational Therapist over several months on re-education and building her activity up to a point where she can consider re- employment. One cannot be optimistic about her returning to the same job as this would lead to a relapse of symptoms unless rather drastic changes were made both to the work station and the work plan, particularly the monitoring of work rates. A higher foot rest and re-organisation of the most used postal slots would help. Another possibility is that she could be employed as a Supervisor and I understand that there has already been some discussion on that issue. If that is not feasible the question of re-training arises. She feels that she performed well in the retail and in selling and that she would be interested in getting involved as a Land Agent. I presume that would involve some further study so that should be looked into. I would recommend that all this be supervised, as you suggest, by Glenys Denyer and I have recommended by booklet on giving the general background on this problem. I haven't made an appointment ahead but could see her if progress is not going according to plan. She knows this will take months rather than weeks and that we cannot set a deadline, as trying to achieve that deadline is counter-productive." On 1 April 1996, in answer to a query from the appellant's advocate, Mr Wigley stated: ' Concerning the statement by Mr Davey 'I also do not think that this is related to her occupation. Her symptoms began at a time when she was not working, and have continued, despite a long period away from her normal employment', my reason for disagreeing with his opinion that that she 7 does, on cross examination, give a clear history of symptoms starting while she was working, indeed only a month after starting with NZ Post. Though a subsequent episode of moving the furniture may have been an aggravating factor, it is clearly not the initiating factor. In other words her symptoms did start when she was working for NZ Post. The fact that they have not settled since, despite a long period away from normal employment, does not absolve the employer or ACC from responsibility since OOS, once it has reached a certain degree of severity, can go on for a very long time after cessation of the inducing activity. She acknowledges that it was unfortunate in retrospect that she did not report this symptom earlier, though she does state quite clearly that she reported it to a member of staff of OSH who visited the sorting room some time before she had to go off with her symptoms.' When the respondent declined the appellant's application that she had suffered a work injury she applied for a review and gave evidence at the review hearing which dealt with the matters covered in the medical reports. In addition, and in answer to a question from her advocate as to whether she had suffered the same type of pain symptoms prior to the incident with the furniture, the appellant stated: " Yes, it was, I said to Dr Wigley at the time I am not a 100% sure if she was from OSH or whether she was just from someone anyway that they got in. We had them around every six months they came into work and I spoke to her at length about how uncomfortable it was so she sitting at the cases and to check to make sure that I was sitting at the case correctly. She did change at that stage my whole way of sitting at the case. Okay. All I remember was that she was a Dutch lady or German lady. I am not 100% sure. I think she was from OSH anyway- right." The review officer declined the application and in so doing her finding was: 'I am not satisfied that the pain which occurred, and has continued following moving of furniture at home, can be linked to the employment task. From the evidence before me pain such as this had not been suffered previously and discomfort felt at work prior to this incident was likened to that which arose from non-work activities. Therefore while there is evidence that could establish there were properties or characteristics in the applicant's employment which could cause or contribute to a diagnosis of OOS I am not satisfied that the property or characteristic is not found to any material extent in the non-employment activities or environment of the applicant. Also at the time of seeking medical treatment a non-work activity was identified as having contributed to the symptoms." The issue falls to be decided under the provisions of s.8(2)(a) and (b) which states: 8 (a) Is caused by an accident to the person concerned; or b) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; ..." And - The requirements to establish a gradual process disease arising out of and in the course of employment is covered by s.7(1) which states: (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 (6 ) 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." Mr Rowlett submitted that the medical evidence supported the appellant's contention that she had previously suffered similar symptoms prior to the furniture incident in September 1995 which she had reported to the inspectors from the Occupational Safety and Health Organisation. However, she did not fully appreciate the problem until it was exacerbated by the furniture incident for which she then sought treatment. He submitted that while Mr Davey was a specialist orthopaedic surgeon whose principal field relates to bone structure, Mr Wigley is a rheumatologist whose field of speciality more closely relates to the type of problem suffered by this appellant. He submitted that on that basis the Court should be persuaded to accept his evidence, coupled with that of Dr Drake's rather than Mr Davey's. Mr Drumond submitted that two questions are before the Court, they being: 1. Is occupational overuse syndrome a particular property or characteristic of the appellant's employment task or environment which is performed; and 2. If so, has the employment task or environment in which it is performed caused or contributed to the personal injury by gradual process. He conceded that the employer does not dispute that the nature of the employment does have the properties or characteristics which could cause or contribute to occupational overuse syndrome. However, he submitted that the medical evidence did not support the second issue that the employment task or environment in which it was performed caused or contributed to the personal injury. In support of that 9 submission he raised the question that there had been no difficulties before the furniture incident on 9 September 1995 and that Mr Davey had considered it was unusual that the problem developed at a time when the appellant was not performing the activities which is alleged precipitated the problem. He submitted further that there is a suggestion that the appellant was suffering from a degenerative condition prior to the injury on 9 September 1995 and that the accident had aggravated that pre-existing condition. Ms Mckenzie referred me to a number of decisions regarding cases of this nature, but I agree with Mr Drumond's submission that the appellant's case stands or falls on the second proposition which he put to the Court. Ms Mckenzie also conceded that the employment tasks had the particular property or characteristic which could cause or contribute to the appellant suffering from occupational overuse syndrome, but that in this case the accident was a non-work accident which had occurred in her home. Ms Mckenzie also submitted that it was unusual for this type of injury to appear when the appellant was not engaged in performing her work activity and in support of this referred to Mr Davey's report. She submitted that while it is acknowledged that the cause of an occupational overuse syndrome is a constant and repetitive activity over a period of time, this injury appears to have occurred while moving furniture which aggravated a prior condition. I consider that the review officer overlooked the appellant's own evidence that while her first real concern about her shoulder occurred after the incident with the furniture, she had on previous occasions mentioned to the inspectors from the Occupational Safety and Health Organisation that she had suffered pain because of the nature of her work. However, this issue was not taken any further by her, but it does indicate that the gradual process may have been occurring prior to the incident in September 1995 which exacerbated it and brought it to the surface. I consider that the medical evidence establishes that there was some pre-existing condition which it would appear had been developing over time because of the nature of her work and that it was brought to light by the incident with the moving of the furniture. I accept Mr Rowlett's submission that in considering the medical evidence, I should prefer that of Mr Wigley whose speciality is in this field rather than that of Mr Davey who is an orthopaedic surgeon. In its totality the evidence indicates that the appellant had had spasms of pain prior to the September 1995 incident which she had mentioned to the Occupational Health Inspector without taking the matter any further because the pain at that time did not appear to warrant a complaint. The incident in September 1995 brought the problem to light and was diagnosed by Mr Wigley as occupational overuse syndrome which diagnosis was confirmed by Dr Drake and discounted by Mr Davey. However, the problem persists and Mr Wigley is still confident in his opinion which I accept. 10 The appeal is therefore allowed and the appellant will be entitled to cover under s.7 of the Act. There will be costs to Mr Rowlett of $800. DATED at WELLINGTON this ISM day of October 1996 A W Middleton District Court Judge dc152-96.doc(rd)