Van Rees v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 69 197 HELD AT NAPIER 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 LESLEY VAN REES Appellant (Appeal No. DCA 285/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of April 1997 P Callinicos for appellant F M Patterson for respondent DECISION OF JUDGE D A ONGLEY The question in this appeal concerns the commencement of incapacity in the nature of occupational overuse syndrome. The appellant's assessment for weekly compensation depends upon her being able to establish that she was entitled to be in receipt of compensation calculated under s 59 of the Accident Compensation Act 1982. The Review Officer determined incapacity to have commenced on 10 November 1992. The appellant was not earning at that time and her incapacity did not qualify her for weekly compensation. The appellant claims that the incapacity developed between 1983 and 1986. There is some evidence that she presented with symptoms before 1986, however her general practitioner, Dr R F Waterworth, advised the Corporation that she attended him in 1986 with: - 2- ... a one year history of intermittent and then constant bilateral hand pain with swelling. Intermittent finger numbness was noted. Morning stiffness lasted 10 minutes. Mrs Van Rees reported she was dropping things and was very concerned by her disability. At my interview Mrs Van Rees reported her work as demolishing a house and she felt this had aggravated symptoms. I have no record of the association between her symptoms and the use of a keyboard. Examination: (19.12.86) A low grade flexor tendon tenosynovitis was present involving several fingers. Phalen's test was positive at the wrist indicating lowgrade median nerve compression but there were no sensory changes and Tinel's test was negative. Several PIP joints in both hands were also tender and slightly swollen. However Mrs Van Rees highlighted I was examining her on a "good day" - on other days the swelling is more marked There was clinical evidence of a tenosynovitis, I could not classify the underlying disease process and prescribed NSAIDs, contrast baths plus ergonomic care. I assume some benefit was experienced from these measures as Mrs Van Rees did not report for review but in 1987 requested a repeat prescription of Naprosyn. I have no history of hand problems occurring prior to 1985. Xrays were not taken. My records don't assist me in deciding whether Mrs Van Rees' occupation or vigorous recreational activities could be implicated in the cause of her tenosynovitis. It is possible that both activities played a role in her presentation. If further details are required then I would suggest I re-examine this lady with a laboratory test and hand xray first." In her evidence before the Review Officer the appellant claimed also to have had physiotherapy treatments commencing in 1984. Dr Waterworth reviewed the appellant on 11 June 1992 when he examined her and reported to the Corporation. The appellant informed Dr Waterworth that she had never recovered and had persistent total right and left arm pain. He said: "Mrs Van Rees has a chronic pain syndrome. Today no local pathology is present to account for her ongoing major disability. Activities like using her keyboard for fifteen minutes, light gardening, carrying shopping all flare her disabling symptoms. Management of this condition is difficult. Pain circuits are established so even gentle physical activities are interpreted as painful. Some medications do interfere with pain circuits and assist patients cope better with their symptoms. I wonder whether Dr Vickerman would consider a course of Amitriptyline, Surmontil or Doxepin? Thus would it be appropriate to provide Mrs Van Rees with a copy of this letter to take to discuss with her General Practitioner. For the present Mrs Van Rees has very limited work capacity, I can understand her difficulty at coping in the bakery as any arm/hand movement is interpreted by the spinal mechanisms as painful. If further details are required, please contact me." The appellant had made no claim for cover prior to 3 March 1992 when a medical certificate from Dr A N Vickerman noted recurrent pain, paresthesia in both forearms and a diagnosis of repetitive strain injury. Injury Compensation Services lodged a submission with the Corporation on 31 March 1992 describing her history and - 3 - referring to a first experience of symptoms in about 1983. The work history related by Accident Compensation Services was that Mrs Van Rees had been employed as a data input operator from 1975 to 1979 and then worked for Whitcoulls using her keyboard skills. From about 1983 she worked for the Rehabilitation Centre in Napier, setting up a computer facility, which placed demands on her. She was also occupied, with her husband, in restoring an old house transported from another site. That work began in about 1986 and became a significant activity from 1988 onwards. It was said that she occupied countless hundreds of hours sanding and burning of layers of paint and performing other tasks associated with the project. After employment with the Rehabilitation Centre, and probably contemporaneously with the house restoration, she moved on to three other jobs involving setting up a computer system for Paramount International, setting up a clerical unit in Flaxmere for the Salvation Army in about 1989, and then setting up a clerical unit for the Iwi Transition Agency. The appellant separated from her husband and, at the time of her diagnosis by Dr Vickerman, she had entered into a new business operating a cafe where she worked up to 80 hours a week. She found operating rolling machinery for pie pastry was too stressful on her arms and referred to other activities that caused trouble so that she was physically incapable of making her expected contribution to the labour and she "faced the beginning of each day with the certain knowledge that her day's activities would exacerbate the overuse injuries". Before that she had taken extramural university papers and experienced difficulty writing to the stage where the discomfort level was too great after only a few lines and the pen would drop from her fingers. Using a computer was not viable because the overuse pain and disability came on even worst so she abandoned extramural studies. The Corporation did not accept that the overuse syndrome could be ascribed to a work source as distinct from a cause related to repetitive activity in the appellant's non- work activities. Non-work activities included the house renovation and the use of a computer. On the other hand, work activities did not appear to involve continual keyboard work. Dr R D Wigley, rheumatologist, examined the appellant on 21 November 1992 at the request of Injury Compensation Services. He referred to the written submission of Injury Compensation Services and two reports from Dr Waterworth. By that time the appellant was working only about two hours a day and needed help with ordinary housework. He found that physical examination was consistent with her history and showed classical symptoms of occupational overuse syndrome which he regarded as dating back to 1984, but he said that she managed to cope until quite recently. He assessed permanent disability of 47% of whole body function. The Corporation's district medical adviser considered that Dr Wigley's assessment was faulty and recommended an assessment of 19.66% for work related occupational overuse syndrome. The Review Officer, in a decision delivered on 17 November 1995, said that the treatment in 1984 and 1986 was for cervical spine problems, however, that finding seems to have overlooked the opinions of Dr Waterworth and Dr Wigley that attributed the onset of occupational overuse syndrome to a time as early as 1984. The Review Officer correctly placed some weight on the absence of any contemporaneous certificates prior to 1992. In the absence of reference to the important conclusions by Dr Waterworth and Dr Wigley, it has to be accepted the Review Officer may not have weighed the evidence appropriately and the matter is open to reconsideration on appeal. The Review Officer commented correctly that obtaining physiotherapy treatment did not in itself demonstrate incapacity and the fact that the appellant faced difficulties in continuing to work is also, in itself, insufficient proof of incapacity. The appellant's claim is that she suffered a loss of earning capacity in terms of's 59 of the 1982 Act. It is difficult to determine that question in hindsight because, although she appears to have developed an occupational injury, the onset of the time when she experienced a loss of earning capacity is obscured by the fact that she continued working. The continuity of her symptoms is only ascertainable from her own reported history. It is possible that her symptoms abated and that she carried on in employment that she was able to maintain without suffering any debilitation, until she suffered further symptoms, either brought on by her non-work activities or by a resumption of intensive keyboard work. In a further opinion given to Injury Compensation Services on 9 December 1993 Dr Wigley said: "Symptoms: Since the previous report she reports a definite improvement largely due to her re-educating herself to a changed life style. She takes her time over everything that she does and takes frequent brief breaks. She has also lost weight and has built up her strength attending a gymnasium. She works part-time at her own pace, up to 3 hours a day on 3-4 days per week for Hawke's Bay Enterprise Workshops. She is very disappointed that she was not supported by ACC to do a job for a school part-time. Evidently that opportunity has passed. She regrets not having told me that she had pain at the back of the neck and the trapezius area and also in the lower back area dating back to the same time as she developed her over-use symptoms, as she did not consider them related to her over-use syndrome. The description that she gives is identical to that of her arm symptoms and is characteristic of over-use syndrome pain in that it increases with sustained effort and develops a characteristic burning quality extending into the arms." Dr Wigley made an assessment of 34% of total loss of whole body function and commented that in some Corporation documentation it was suggested that Mrs Van Rees' symptoms arose out of work on her house but that she pointed out that her symptoms pre-dated the house work in question by four years. Dr Wigley said that while such work on the house may have aggravated the symptoms, the symptoms did indeed relate to her occupation in all other respects. Those comments do not entirely answer the question of whether any work injury had caused a continuous loss of earning capacity, or whether no loss of earning capacity occurred until her condition was complicated by some other cause including perhaps her non-work activities, or whether any loss of capacity was temporary. . 5 - In a review decision of 15 December 1993, it was confirmed that the appellant's occupational overuse syndrome did relate to her employment. The question of its having originated from non-work activities can be put aside, although there is the possibility of some aggravation of symptoms from that cause. There is a persuasive case for a finding of continuous incapacity. Dr Waterworth's report of 22 December 1986 relates significant symptoms which were still present when she was examined again in 1992. In the intervening period, she exhibited a determination to continue working, but it does seem that if her condition had been properly evaluated it would have been realised that she was working at the expense of her health and beyond her capacity. The fact that she carried on work does not raise a strong inference that she was capable of working without loss of earning capacity but it does place an evidential burden on the appellant. It may well be that the appellant made the wrong decision to continue working regardless of the effect on her health. The later medical opinion expresses no real doubt that that was the case. Although the medical reports are based in part upon her self-reporting, the doctors did not find that her history was at all inconsistent with her symptoms and they were inclined to accept what she said. There is no material on the Corporation's file which raises any serious doubt about the appellant's credibility in her account of persistent difficulty. She needs to show that she experienced more than pain or discomfort, and that she was incapacitated or unfit for work. The more recent history was recorded by Dr Turner in a letter of 15 September 1995: "She presents with a long history of musculoskeletal symptoms going back to 1984. Initially she described symptoms confined to the wrists and hand with swelling and intermittent finger tip numbness. With the passage of time these symptoms have escalated into a chronic pain syndrome involving both arms, her neck and both shoulders, with some episodic pain in her legs. She describes generalised fatigue with stiffness in her muscles with no particular diurnal variation, stiffness in her fingers more apparent in the mornings, shooting pains in the arms and legs with a tendency to cold fingers particularly in the winter, burning in her arms and weakness of the grips. She advises a past history of anxiety and depression related to her pain problem but believes she is now able to control the situation and is much more accepting of her pain syndrome. At Paramount International she was working long hours writing software on computers and it was here that her pain began to escalate. She then moved to the Salvation Army the pain never really subsiding all the while receiving physiotherapy treatments for pain relief. She then went to work in a craft and business centre eventually moving to a cafe as a self employed worker for some 10 months over which time there was a considerable exacerbation of symptoms, her arms eventually "seizing up". She advises she is currently on a sickness benefit, has had a lump sum payment from the ACC of $12,000 and is currently completing her degree in education and is due to complete her diploma in teaching in 1996. Clearly she is a very stoical person to be rehabilitating under the circumstances of pressure and considerable harassment over the years." In the same letter Dr Turner put her non-work activities into this perspective: - 6- "In my opinion this patient has elements of the overuse syndrome and in addition a fibromyalgia-like picture. I think from her history it is reasonable to conclude that there is an occupational element to her problem but clearly one must incriminate all the activities both occupational and non-occupational in a cumulative trauma causation. The chronic pain fibromyalgia-like syndrome would appear now to be the predominant diagnosis there being in my view a considerable factor of background stress complicating the picture. Judy Rynn has aptly detailed in her report "the ongoing stress associated with financial restrictions proving her case to the authorities together with a long term fear of being on a benefit is not assisting this woman's rehabilitation". Nevertheless to her great credit Lesley has stoically forged on determined to rehabilitate herself back to active employment. She is clearly a high achiever and poor relaxer which together with the ambient stress no doubt continues to aggravate her muscle tension and pain. I do not believe there is any miracle cure for her condition but really it boils down to the matter of pain management with emphasis upon self management protocols and getting on with life using pacing procedures to cope with the activity related pain exacerbations." In this case, the fact that the present symptoms are directly connected with the occupational injury is not in question. Proof of a continuous loss of earning capacity resulting from the injury is to be considered on the basis of a burden of probability resting on the appellant, having regard to her failure to cease work or change her work pattern when, according to the evidence that she seeks to have accepted, she was not fit to continue work, or could only do so by incurring further damage to her health. There is the speculative possibility that if she had stopped work and accepted a temporary loss of earning capacity, she may have resolved her symptoms and may have regained her earning capacity. I think that now has to be regarded as speculative. A question was raised concerning the fact that she went on to an unemployment benefit rather than a sickness benefit or a compensation claim. The benefit was dispensed under a "be your own boss" scheme. That circumstance seems to have no real bearing on the ultimate question. In my view, the evidence demonstrates on balance that the appellant has suffered a loss of earning capacity since at least December 1986 when she was examined by Dr Waterworth. There are various possibilities of her having regained full capacity for some temporary period of time, but the balance of the evidence indicates a probability that she did not. Her injury has been serious and permanent, and the fact that she continued working is adequately explained in the impressions that she made on various medical practitioners that she continued through determination rather than through fitness. The appellant would probably agree, in hindsight, that it was inappropriate for her to continue working and she would have been better served by seeking earnings related compensation and addressing her health problems. However, her continuing to work did not disqualify her from establishing that she was incapacitated. Although it placed a burden on her to show that she did not continue work because she was medically fit. - 7- The appeal is allowed. The date of incapacity is fixed as December 1986. No precise day needs to be ascertained because there was no immediate loss of earnings at that time, but it is established that the appellant was an earner within s 59 of the Accident Compensation Act 1982. The appellant will have costs of $800. DATED at WELLINGTON this 2 8 th day of April 1997 D A Ongley District Court Judge