Lordco CEG (New Zealand) Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 250199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LORDCO CWG (NEW ZEALAND) LIMITED of Auckland Appellant (Appeal No. DCA 529/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 20th day of July 1999 APPEARANCE/COUNSEL D J Sweet and B A Harrison for appellant J Munro - claimant in person C Richards for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the claimant suffered a work accident within the meaning of s.7 of the Act. The claimant was employed by the appellant between 20 November 1995 and 6 March 1998 as a sales engineer. That work involved visiting various customers and providing quotations for their requirements, most of which work involved travelling 2 to various destinations and staying away overnight. The reports were normally hand-written until the claimant complained about problems in his right foreman in August 1997. At that time he was advised that he could use the Managing Director's personal secretary for the purpose of dictating work and on the days that she was not available he was provided with a dictaphone. The appellant's evidence was that before commencing employment with the appellant he had had no symptoms or injuries to his right forearm. The claimant lodged a claim with the respondent in August 1997 in which his problem was diagnosed by his general practitioner, Dr Kljakovic as "Has severe @ forearm tendonitis as a result of 'writing quotations and letters'." The appellant was requested to complete the "Employer Questionnaire and Work Injury Report" which is dated 10 October 1997. In that report the appellant noted that it was "unsure" whether the problems were work related. However, in that report it was stated that the claimant's leisure activities may have contributed to the injury as they were "marathon athlete, is mountain bike rider & frequent gym user". On the basis of the initial diagnosis and subsequent inquiries the respondent notified both the claimant and the appellant that it did not consider that the claimant's claim satisfied the provisions of s.7. The claimant then applied for a review of that decision. With that application the appellant provided a letter from Jenkins Gym Fitness Centre and also stated that he would be providing a report from an orthopaedic surgeon. The letter from Jenkins Gym stated: "John Munro has been attending Jenkins Gym for the last 18 months at around three visits per week and of this, weight bearing exercises take up approximately a half hour per session. The programme that has been written for John complements his running activities, in that he has been lifting light weights with high repetitions. This gives him more muscle endurance and toning rather than muscle building or strength, and in no way would he therefore be over straining the muscles or over using them." A report from Mr K Fong, an orthopaedic surgeon, dated 9 December 1997 to the claimant's general practitioner gave the opinion: " Examination shows a full range of neck movement, shoulder and elbow range of movement is normal. However neurologically there is an interesting finding of tenderness of the ulnar nerve in between the two heads of the flexor carpi ulnaris. There is also wasting of the ulnar muscle flexors in the forearm and tenderness over the muscle belly. Distally there is a decrease in sensation over the ulnar aspect of the right forearm and right ring and little finger on the ventral aspect to pin prick. I think clinically he has a right ulnar nerve compression syndrome which is a slightly unusual site, at the entry of the nerve into the flexor muscle compartment. This is not unlike people developing carpal tunnel syndrome after repetitive use and also at work. This is certainly compatible with a work related problem. However, we have been unable to put this condition down to a specific incident or specific date. 3 I think he would do well with an ulnar nerve release procedure because of the fairly localised tenderness over the ulnar nerve area with specific ulnar nerve impairment. This can be done as a day case once approval has been granted by ACC." The respondent then referred the matter to Dr K Howard, a specialist in occupational medicine, and posed the following questions: "1. Provide a diagnosis of Mr Munro's condition. 2. From taking a full history and your examination could you please give your opinion as to the cause or causes of Mr Munro's condition. That is, is Mr Munro's condition related to his employment tasks or otherwise? 3. To what extent, if any, did Mr Munro's non-work activities contribute to his condition? (Please note that under the legislation cause must be considered as to a 'material extent'). 4. If Mr Munro's condition is employment related is the risk of suffering Mr Munro's injury significantly greater for persons performing his employment tasks in his work environment than for persons who do not perform those tasks? 5 . Please comment on possible treatment and prognosis for Mr Munro." Dr Howard's report of 18 April 1998 stated: " General and occupational history Mr Munro told me that he is a single man, a nonsmoker and drinking alcohol in moderation. He has a number of athletic interests, including recreational cycling and fitness work at the gym. His major interest, however, is marathon running and he undertakes extensive training for this and usually competes in a marathon race once or twice a year. In the past he used to play rugby, but has not played for the past ten years. He told me that his use of the gym is for muscle toning and strengthening rather than body building as his interest is in improving his speed and endurance. This use of the gym is confirmed in the letter from Jenkins Gym on file. Mr Munro told me that he has a background in engineering and for a period of just over two years, finishing in February 1998, he was working for Lordco as a sales engineer. The job entailed considerable travel as well as extensive handwriting of reports, quotations, etc. He told me that this would involve writing up to 20 pages or so of A4 sized pages for later typing. The amount of time spent on handwriting apparently varied from about three to four hours per day. He stated that he tended to hold his pen very tightly and demonstrated to me his method of writing which was not ideal. As far as his previous medical history was concerned, there appeared to be little of significance, other than a number of injuries, including a dislocated right shoulder in 1992. It seems unlikely that this bears any relationship to his current problems. 4 History of present condition Mr Munro told me that his problems began with gradual onset of pins and needles in his right forearm, mainly affecting the extensor aspect. These sensations gradually extended into his wrist and he then noted pain developing in the lateral aspect of his right elbow, in the right biceps muscle and in his shoulder. He stated that there were episodes of what he described as muscle 'spasm' although there appears to have been no dystonia and no loss of grip strength. At around the same time he also became aware of a burning sensation in the flexor muscles of his right forearm. He found that handwriting made his symptoms worse as also did driving. He told me that he has done - little handwriting since about October 1997, but there has been no real reduction in his symptoms. He consulted his general practitioner who diagnosed a tendinitis (sic) and referred him for physiotherapy, including acupuncture, but this did little to relieve the pins and needles, although it helped the muscle spasms. His general practitioner referred him to Mr Fong for an opinion and he has diagnosed an ulnar nerve entrapment in the right forearm as indicated in his letter on file, and has advised a surgical release of the compression. Mr Munro informed me that he continues to experience a burning sensation in the flexor muscles of his right forearm, together with extensive pins and needles. He stated that he was no longer bothered by muscle spasms and he had also noticed that movements of the arms and hands reduced the symptoms. He had also found some relief of symptoms following a work out at the gym. Examination Mr Munro presented as a pleasant and co-operative man who sat in no obvious pain or discomfort, although he tended to nurse his right arm. Examination of the left arm revealed no abnormalities. However, the right forearm showed some muscle wasting in the flexor muscles and there was a reduction of about 50% of grip strength in the right hand compared with the left. There was tenderness over both epicondyles at the elbow and there was tenderness at the midpoint of both brachioradialis and extensor carpi radialis longus muscles. Extension of the right wrist against resistance induced some pain in the extensor muscles and at the common extensor origin. There was marked loss of sensation in the distribution of the ulnar nerve in the right forearm and hand with occasional areas of hypernesthesia. Palpation of the ulnar nerve at the elbow induced only minimal tingling in the hand, but palpation and percussion of the nerve between the two heads of lexor carpi ulnaris induced marked sensations of pins and needles in the little and ring fingers, a finding to which Mr Fong drew attention. There was also marked tenderness at this point. Movements of all joints were full and free and I found no other suggestion of neurological involvement other than with the ulnar nerve. 5 There was also some generalised soft tissue tenderness, especially in the upper fibres of both trapezius muscles, which may be considered as tension myalgia and probably related to postural problems and muscle tension. Comment A number of specific questions have been asked and I will attempt to deal with these in order. 1. In my opinion, there is probably a dual pathology in Mr Munro's right forearm. In the first place there is evidence of lateral epicondylitis (tennis elbow) and secondly, there is clear evidence of ulnar nerve compression. I am in full agreement with Mr Fong that the site of compression is between the heads of the flexor carpi ulnaris muscle where the nerve enters the flexor muscle compartment beneath the tendinous arch that joins the two heads of the muscle. There is also evidence of some tension myalgia around the shoulder, probably postural in origin, but this is of little significance compared with the major pathology 2. It is also difficult to be entirely certain of cause in conditions of this nature. It is reasonable, however, in my opinion, to see an association with both the tennis elbow and ulnar nerve entrapment and the nature of his employment. I consider that the pain in the extensor muscles and the involvement of the lateral epicondyle could be due to the nature of Mr Munro's grip on his pen, placing undue strain on these muscle (sic) which he has maintained for relatively long periods. Extensive driving will have added to the strain and helped to maintain symptoms. It is more difficult to be specific about the ulnar nerve compression, but it may well have arisen from a response to continued pressure and associated irritation due to the way he has rested the flexor aspect of the arm against the edge of the desk when writing. I state this as a possible mechanism: I think that certainty is impossible. 3. It is significant, in my opinion, that symptoms are entirely restricted to the right arm. He states that he has no second job which could be implicated in causation and his regular gym work involves the use of both arms equally. Were this to be a major contributory factor, one would have expected bilateral symptoms. I do not see the non-work activities of which I am aware as playing any major part in the induction of his present conditions. 4 . I think that the answer to this question is in the affirmative, although one could wish that the wording of the Act was much clearer. Mr Munro is suffering from an unusual condition, but considering the likely factors which may have given rise to it, it may reasonably be considered that the risk of developing his ulnar nerve compression in particular is greater for persons performing his work activities than for those not so doing. 5. Treatment of this condition of ulnar nerve compression, requires surgical release. There is no other form of satisfactory treatment and the surgery needs to be 6 undertaken as soon as reasonably practicable. As far as the tennis elbow is concerned, this is likely to settle with rest and reduced stresses on the arm, although some ultrasound from a physiotherapist may aid more rapid resolution." When it received that report the respondent notified the appellant and the claimant on 3 June 1998 that on the basis of the opinion it then had, it had revised its earlier decision and accepted that the claimant's claim for work related injury had been accepted. In its decision letter to the appellant informing it that the claim was accepted, the respondent also notified the appellant that the claim would be attributed to its history for the purpose of experience rating. The appellant applied for a review of that decision. A subsequent report by Mr Fong of 17 July 1998 noted that he had explored the claimant's ulnar nerve on 7 July 1998 and stated: "At operation the ulnar nerve was compressed at the entrance to the ulnar flexor muscle group area, this was released and he has done well post operatively." At the review hearing evidence was given by Mr Mclean, Managing Director of the appellant, in which he stated that the sales engineers completed their contract report forms, both during out of town visit and upon return to the office. He said that the reports normally consisted of five to six lines and that the typical report writing amounted to a couple of hours a week at the most. He said that out of town sales trips generally lasted for five days and would involve an average of five calls per day. Subsequently in his brief of evidence he stated "many quotations are repeats of previous ones and do not require rewriting. Typically a Sales Engineer spends 2-4 hours per day on preparation of quotations or faxes, and each one is 1 or 2 pages long.". He then noted that he was unaware that any other representatives of the company had suffered similar problems, and stated: "Mr Munro has had a number of ACC claims. During the time Mr Munro was employed here he made numerous visits to physiotherapists for injuries which he said related to his training and marathon running. Mr Munro had two or three sessions of physiotherapy a week for many weeks in a row all of which were taken with pay and no penalty. Mr Munro is a marathon runner, mountain bike rider, gym trainer and has spoken of a history of hamstring and tendon problems. I understand that he has an ACC claim arising from work in Gisborne when he lifted a carton of cigarettes and developed a hernia. This apparently required an operation three months after he started with the original Cory-Wright Group (prior to Cory-Wright Group being purchased by Lordco (NZ) Limited in 1996) and required 6 weeks off work." The claimant was not present at the review hearing. The review officer considered that on the basis of the medical reports the claimant's claim satisfied the provisions of s.7 of the Act and confirmed the respondent's primary decision. It is against that decision which the appellant now appeals. The grounds of appeal are: 7 1. That there was sufficient evidence upon which the review officer could find that the claimant had suffered a physical injury arising out of and in the course of his employment with the appellant. 2. That gradual process claims cannot be taken into account in respect of experience rating under s.104 of the Act. The appellant submitted: 1. That there was no evidence that the claimant had suffered physical injury in or - about 1997. 2. That the claimant had a history of sport related injuries including a dislocated shoulder in 1992. 3. That the initial diagnosis was forearm tendonitis, but there was nothing in the medical reports to suggest that it occurred in 1997. 4. That the claimant's outside activities of marathon runner, mountain bike rider and gym user could have contributed to his problem. 5. That the funding scheme provided under ss.100 to 105 of the Act for the "employer's account" required employers to pay basic premiums calculated on their earning and industry category which could be adjusted by reference to the employers' "accident experience" but that nothing in s.104 indicated that the definition in s.3 of "accident" should be departed from. That by virtue of s.3 "accident" excluded personal injury resulting from gradual process. 6. That "adjustment" under s.104 to an employer's basic premium cannot include any claim arising from personal injury resulting from gradual process because that is excluded by the definition of "accident" After I indicated to counsel for the appellant that I did not consider that I had jurisdiction to deal with the question of attribution, I granted leave to both parties to provide additional submissions on that issue. The appellant has submitted that the decision letter in which the appellant was informed that the claim was accepted as a work injury and that the costs would be attributed to the appellant constituted a decision which was reviewable under s.89(2) as being a decision under s.65(6). Mr Richards submitted: 1. That the diagnosis of epicondylitis and ulnar nerve compression by Dr Howard constituted physical injuries which were personal injuries. 8 2. That on the basis of Dr Howard's opinion it was clear that the claimant's claim satisfied all the requirements of s.7(1) of the Act. 3. That in relation to the experience rating of gradual process claims and the appellant's submission in relation to s.104(1), the provisions of s.3 are qualified by the use of the words "unless the context otherwise requires" which shoes a clear intention of the statute that "accident experience" in s.104 should include gradual process claims. 4. That in relation to the question of jurisdiction, the Court should have regard to decisions in Hull (249/97); Nelson Marlborough Health Services (25/99); Waipa District Council v ARCIC (1997) 1 BACK 464 and Cadbury Confectionery (207/98) which demonstrate that the mere notification of an intention to include a claim in an employer's work history does not constitute a decision which can be the subject of a review hearing. The claimant submitted that all sales engineers wrote their reports by hand and it was not until he mentioned his injury that typing facilities were made available. He said that on some occasions quotations could be three or four pages long and that he had often had to write them at night when he was on the road. In relation to the claim that he had suffered a dislocated shoulder he said that that occurred in 1982 when playing sport and its relationship to his current problem was discounted by Dr Howard. He said that the suggestion that his activities as a mountain bike rider might have contributed to the problem were wrong because he had not ridden a mountain bike since March 1997 and then had only done so occasionally as a form of recreation and only on the road. He said that he could not understand how running could in any way cause the injury he suffered. He said that while the appellant had submitted that he played computer games this only occurred on brief periods during the second half of his lunch hour when he was not away on trips and that the game was never serious and was often interfered with by phone calls so that it was not a constant use of the computer. He said that while it had been submitted by the appellant that he had an idiosyncratic writing style he was not aware of this but in any case he only employed his natural style of writing which he did not consider was in any way unusual. This appeal raises two issues: (a) Did the claimant suffer personal injury by gradual process arising out of and in the course of his employment? And (b) Does the Court have jurisdiction to consider whether the fact that the decision letter notified the appellant that the cost of the claim would be attributed its work history constituted a decision which is capable of review ? While the appellant submitted that the claimant did not suffer a personal injury, the medical evidence and particularly that of Dr Howard, indicates that the claimant suffered from both lateral epicondylitis and ulnar nerve compression. I consider that both diagnoses constitute physical injuries which are personal injuries. The question then arises as to whether or not they arose by gradual process out of and in the course of the claimant's employment with the appellant. Again, the Court must be guided by the medical evidence. Dr Howard attributes the ulnar nerve compression to result from the appellant's posture while writing, while he attributes the epicondylitis to the nature of the claimant's pen grip. While the appellant has submitted that it is the nature of the claimant's grip which is unusual and is the cause of his problem, I do not consider that that relieves the appellant from responsibility. The claimant was required to do a considerable amount of writing in the course of his employment and from the medical evidence it is obvious that the manner of holding the pen and his posture have resulted in the onset of the physical injuries he suffered. There is no evidence of any other cause for the claimant's condition and the medical evidence supports his claim. No additional evidence has been provided to me which goes beyond the evidence available to the review officer who concluded that the provisions of s.7(1)(a) were satisfied. I must agree with that decision. Various non-work activities were listed, including cooking and computer games and gymnasium work. It is quite clear from Dr Howard's report that because the regular gym work involved both arms the problems could not have arisen from that activity because they are solely associated with his right arm. No other activities appear to have been of such an intensity that they could have caused the condition and this is supported by Dr Howard's opinion. I must therefore agree with the review officer that the claimant has satisfied the criteria of s.7(1)(b). A similar situation arises in respect of s.7(1)(c) in which Dr Howard was specifically directed by the respondent to consider whether people undertaking work of the nature carried out by the claimant were of a greater risk of developing the condition than other people. Dr Howard concluded that the provisions of s.7(1)(c) were satisfied by the evidence available to him. There is no other evidence available to the Court and I must therefore agree with the decision of the review officer that s.7(1)(c) has been satisfied. The second issue which arises is the question of jurisdiction. The decision letter of 3 June 1998 warns the appellant that as the respondent has accepted that the claimant suffered a gradual process work injury under s.7 of the Act the costs of the claim would be attributed to the appellant's work history. Section 89(2) of the Act provides: "Any employer who is dissatisfied with a decision of the Corporation under section 65 or section 197 of this Act may apply to the Corporation for a review of that decision." 10 The issue of what constitutes a "decision" was considered by His Honour Judge Beattie in Hull (249/97) in which he stated: "I find that the respondent's letter of 22nd October was a letter intended to be explanatory of the Corporation's position in the light of the demands being made in the latter of 17 October. ... the statement does not purport to be the judgement or conclusion or resolution of the issue, that was reached in July 1996. At very most it was simply declaratory of the Corporation's position in the light of its earlier decision." His Honour Judge Beattie had considered similar issues in Cadbury Confectionery Ltd (207/98) in which he found that an employer's claims history notification (ECHN) was not a decision capable of review. In that case His Honour said: "... I adopt and affirm the decision made in Hull (Decision 249/97). That notice [ECHN] could not be said to be one which determined the employer's liability for premium. It did not conclude or finalise the matter, it was merely part of a procedure to clarify what would ultimately be the criteria upon which a decision as to premium loading or discount would be made." I consider that the decision letter of 3 March 1998 constituted a decision in so far as it stated that the claimant's injury had been accepted as a gradual process injury under section 7 of the Act and that that was a decision to which the appellant was entitled to for a review. I consider that the warning that the cost of the claim could be attributed to the experience rating history was no more than a notification of what might follow. However, that letter does not even constitute an ECHN which is a separate document sent to an employer at a later stage and prior to the issue of an experience rating assessment. The mere fact that the letter of 3 March 1998 indicated that a right of review existed does not mean that the appellant had the right to apply for a review of the notification that the costs would be included in its claims history. I considered similar issues in Nelson Marlborough Health Services (Appelman) (24/99) in which the employer in that case had already accepted that its worker had suffered a work injury but when notified that the cost of the claim would affect its premium liability the appellant challenged the acceptance of the work injury claim. In that appeal the first respondent had issued a later decision confirming its previous acceptance of a work injury but had added to that letter that the appellant had a right to apply for a review. I held that there was no need for the respondent to have issued a decision confirming its earlier acceptance of the work injury claim and that the mere inclusion of the fact that a right of review existed did not entitle the appellant to a review hearing because there was no "decision" which was capable of review. I consider that the only issue capable of review at this stage is the issue of whether or not the claimant suffered a gradual process injury under section 7. The statement that the cost of the claim will be attributed to the appellant's work history is not a 11 "decision" which is capable of review. It is not until the respondent issues an experience rating assessment in which the appellant's claims history is taken into account that the appellant has a decision which is capable of review and then only to the extent that it can challenge the exercise of the respondent's discretion in making that assessment (Waipa District Council v ARCIC (19/97) 1 BACK 464). While I appreciate that the appellant has provided extensive submissions on the question of whether or not gradual process claims should be excluded from experience rating assessments that is not an issue which this Court can consider at this time. It may well be an argument which can be considered when and if the appellant chooses to challenge an experience rating assessment. For the reasons outlined above the appeal is dismissed. DATED at WELLINGTON this 8 TH day of SEPTEMBER 1999 A W Middleton District Court Judge Dca52998.doc(rd)