Kane v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 53198 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 LYNDA KANE DCA 205/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of March 1998 APPEARANCES: Mr M Jamieson for appellant Mr P Huntley and Miss C Ogg respresenting the employer Livestock Improvement Corporaton Limited Miss C Taylor for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to cover under section 7 of the Act for personal injury arising out of her employment with Livestock Improvement Corporation Limited. 2 As a preliminary matter the appellant seeks leave to extend the time for bringing this appeal, the notice of appeal having in fact been filed some two and half months after the 28 day filing period had expired. At the conclusion of hearing oral submissions on this point I indicated that leave would be granted and that I would give brief reasons in my reserved decision. The Corporation opposed the extending of time contending that no good reason had been given for the delay and secondly the strength and merits of the appellant's case did not warrant the granting of further time. Mr Jamieson representing the appellant advised that he had in fact sent the notice of appeal by facsimile transmission to the registry in March 1996 but apparently that transmission was never received although that fact was unknown to Mr Jamieson. There is evidence that he was under the impression that the appeal had been filed as he subsequently made an inquiry as to progress on this appeal only to learn that the registry had no record of it. In the circumstances I consider it appropriate that an extension of time be granted as the indications are that it was always intended that an appeal be lodged and to not grant an extension would not be in the best interests of justice. Background Facts On the 9th day of November 1995 the appellant lodged a claim for cover for personal injury suffered during the course of her employment. The medical certificate stated that the appellant suffered from cervical strain and headaches. The claim stated that the injury was caused by "repetitive neck movements at work". This claim was considered as a claim under section 7 of the Act and the appropriate questionnaires were sent to the appellant's employer Livestock Improvement Corporation Limited and to her GP Dr Murphy as well as to the appellant herself. The appellant stated that she suffered from neck and back pain and headaches and pain in the joints. She stated this was caused from sitting down all day keying data and moving her neck from side to side and up and down. She had been employed in this particular work since June 1995 and these symptoms had developed in about October 1995. The employer responded by saying that the appellant's work station was ergonomically correct and they did not consider that her injury could be work related. The appellant was then referred to Mr Singh neurologist and in his initial report he considers only her symptoms of headache and addresses the possible clinical causes of those headaches and the best method of treating them. In a further report dated the 9th of March 1996 Mr Singh restated the symptoms as they had been related to him by the appellant and stated: "I concluded that she was suffering largely from tension headaches with some suggestion that part of the headaches could have been migrainous and I suggested several lines of action to Miss Kane, especially the elimination of dietary triggers for migraine which look after part of her headaches. " Mr Singh did not consider that her symptoms had any relationship with her employment. Dr Cullooly the appellant's GP, completed the medical practitioner questionnaire on 31 January 1996 and he reported that the appellant was suffering from "marked diffuse myalgic discomfort with symptoms of depression." He noted various consultations with him from November 1995 to January 1996. These related to muscle pain, nausea, myalgia, headaches and lethargy. He had commenced the appellant on anti-depressant medication. As a consequence of that medical information the Corporation declined the appellant's claim for cover on 4 April 1996. No step was taken by the appellant consequent upon that declinationt on the 12th of April 1996 the appellant lodged a second claim for cover for personal injury arising out of her employment. That claim stated that her injury was mechanical neck problem. It seems that this claim for cover was not identified as being the same or similar to that which had been filed earlier and was considered quite independently and in fact was not even treated as a gradual process claim. Cover was accepted immediately and the appellant commenced receiving weekly compensation and a home help allowance. The Corporation did not realise the situation until September 1996 when checking through the appellant's claim file it was discovered that it was in fact a duplication of her previous claim which had been declined. Accordingly by letter dated 5 September 1996 the Corporation stated: "On checking your files I note that your current claim is a duplicate of your present claim which was declined. Accordingly your current claim was actually accepted in error as there was a discrepancy with dates etc. Unfortunately I have no choice but to decline your current claim. Consequently your weekly compensation and home help assistance will both cease on 4 October 1996." It is that decision which this appellant sought to review. At the review hearing the Review Officer had the benefit of a report dated 4 July 1996 from Mr Wong, consultant rheumatologist and Mr Jackson, orthopaedic surgeon. In his report Mr Wong stated: "Both the mother who came to clinic with the patient and the patient herself seemed to have reasonably good insight as to the muscular origin of the symptoms, which in turn have arisen from over use. As I explained to the two the muscles in the neck and should region were overloaded and are now very tense and stiff and unfit and she would benefit from a highly structured rehabilitation which they offer at the Rehabilitation Institute." Mr Jackson in his report of 27 September 1996 stated: "She presents as a cheerful fit looking young woman. She moved around freely. Examination shows normal contours in the cervical and thoracic spines. There was only minor tenderness and this appeared to be largely superficial and more in the muscles than in deep structures. She exhibits a reasonably good range of cervical spine and thoracic spine with only minor discomfort. Xrays available today show no abnormality. Whether this girl qualifies for occupational overuse syndrome or not is obviously debatable. .. From what she has described to me today I very much doubt whether depression was ever present. She certainly did not give me the impression today and interrogation showed none of the classical depression symptoms. I firmly believe that her general practitioner in Hamilton made a wrong error here and that errors once made as you are aware are very prone to being repeated. I believe that with the proper psychiatric assessment that an approach to the Corporation may avoid even a review hearing. If not I would be pleased to offer my opinion that she probably does qualify for OOS and the best treatment for her is as you have already carried out, referral to the rehabilitation centre." In his review decision the Review Officer stated: "The medical evidence must be weighed up accordingly. Mr Singh is saying it is not an occupational overuse syndrome whereas Mr Wong has implied it is. Mr Jackson says it is 'debatable'. The reports from the other specialists are not as detailed as Mr Singh's report which was completed closer to the time. The other reports were based on consultations at least six months after her consultation with Mr Singh. The test in this matter is on the balance of probabilities. I am not persuaded that the neck movements at work caused a condition that amounted to an occupational overuse syndrome. I am persuaded on the basis of Mr Singh's comments 'I do not consider her symptoms which have outlasted her employment to have any relationship with her previous employment that the condition was unrelated to her employment." For the purposes of this appeal the Corporation obtained leave to adduce further evidence being that of Dr J R Monigatti, an occupational physician. It was Dr Monigatti's opinion that the appellant suffered from fibromyalgia and that this has been caused by personal risk . factors and the general stress in her life rather than any properties or characteristics to which she was exposed in her employment activities. Psychological factors were the genesis of her fibromyalgia. It was his opinion that her condition was not primarily the result of physical injury but rather the consequence of stress, whether work related or not. Relevant Statutory Provision Section 7 of the Act 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 than for persons who do not perform that task in that environment. 7 (4) Notwithstanding anything in subsection (1) of this section, personal injury that is related to non-physical stress shall be deemed not to have been caused by gradual, process disease or infection arising out of and in the course of employment." Submissions It was Mr Jamieson's submission on behalf of the appellant that Mr Singh's opinions should be discounted and rather the opinions of Dr Wong and Mr Jackson should be preferred. His reason for this submission is that Mr Singh is a neurologist whose expertise in the field of the nervous system and its diseases whereas Mr Wong and Mr Jackson are more specially concerned with the diseases of the joints and connective tissues. He contends that Mr Singh was simply concentrating on his particular field of expertise and dealt with the headaches rather than the muscular skeletal problems which she claimed to also be experiencing. He further submitted that Mr Singh seems to have misinterpreted the appellant's advice as to the commencement and duration of her symptoms and that the fact that he believed, incorrectly, that her symptoms continued long after the cessation of her employment afforded credence to his diagnosis that it was not work related. It is to be noted that Mr Jamieson's submissions did not address the criteria required to be considered under section 7(b) and (c) of the Act. The representatives of the employer did not make any independent submissions but supported the submissions which were advanced by the respondent. However the employer did wish to emphasise that the appellant's duties whilst employed with Livestock Improvement Corporation Limited were varied and did not involve simply sitting in front of a data entry keyboard and screen for 8 hours a day. Furthermore there were some 80 employees carrying out similar employment tasks to that of the appellant by Livestock Improvement Corporation Limited and there were no OOS difficulties with any such employees. It was further emphasised again that the work stations for all such employees had been ergonomically assessed and were found to be satisfactory. 00 Miss Taylor for the respondent submitted that the appellant has not established a claim within section 7 of the Act on the balance of probabilities, the onus being on her to do so. She contended that there was no satisfactory evidence to establish that the appellant's employment task contained a particular characteristic which caused the injury complained of. She submitted that the reports of Mr Singh and Dr Monagatti were equally as valid as those of Mr Wong and Mr Jackson and that as the latter reports were equivocal at best the appellant had not satisfied the onus which was upon her. It was further submitted that if the diagnosis by Dr Monagatti of fibromyalgia is accepted then such is not compensable and would be excluded by section 7(4) of the Act. Finally counsel submitted that there was no evidence adduced which could establish that section 7(1)(c) of the Act had been satisfied. She submitted that on the authority of the Hensley decision 82/97 where his Honour Judge Middleton held that for the purposes of satisfying section 7(1)(c) some supporting expert medical opinion was necessary and that as there has been no such evidence for that reason as well the onus of proof has been discharged. Decision The medical diagnoses on the two claim forms stated "cervical strain - headache" and then secondly "mechanical neck problem". The initial specialist advice regarding the appellant's injury was from Mr Singh a neurologist. It is clear from his report that the appellant had been suffering from bad headaches for some time. She stated that these could last for several minutes and up to an hour and that these started after she commenced her employment with Livestock Improvement Corporation Limited. She stated that she had back and neck pain associated with these headaches and also nausea and dizziness. It was Mr Singh's opinion that such a wide placed dysfunction could not be attributed to cervical strain. He considered that a musculo-skeletal basis for her condition was most likely. When the appellant was seen by Dr Wong at the Rheumatology Unit at Waikato Hospital he examined her and noted a number of tender points in the neck and shoulder region but no actual restriction of joint movement. He further stated that the muscles in the neck and shoulder region were overloaded and now very tense and stiff and unfit. At no stage has Mr Wong endeavoured to establish any causal connection with her employment or identifying any particular property or characteristic of her employment task. The appellant herself simply stated to him that her job was quite stressful and required a lot of keyboard work with little opportunity for breaks. Finally the report of Mr Jackson, orthopaedic surgeon, to the appellant's GP seems to have been written with a pronounced anti ACC bias but at its best he is simply able to say that in his opinion she probably does qualify for OOS. There is no qualification for how that opinion has come about and certainly nothing in the earlier part of his report could tie it in to the necessary criteria to satisfy section 7(1)(a). Insofar as the evidence of Dr Monigatti is concerned, it seeks to rationalise the seeming competing reports of Mr Singh and Dr Wong and at the same time he identifies fibromyalgia, something which a previous GP of the appellant had also diagnosed and it is his opinion that the appellant's fibromyalgia has arisen to a much greater extent from personal risk factors and the general stress in her life rather than any properties or characteristics to which she was exposed in her work activities. He went on to state that her condition is not primarily the result of physical injury but rather the consequence of stress whether work related or not. Dr Monigatti specifically addressed the question of whether the appellant in the circumstances could expect cover and stated as follows: "For the purposes of ACC cover, work must cause or contribute to injury, not just cause symptoms. The activation of latent points is not an injurious action it is a symptom provoking one. Work is simply aggravating a condition which is caused by something else. The fact that fibromyalgia usually crescendos and remains 10 unresponsive to all therapeutic modalities further supports the view that the condition is a separate condition unrelated to the work process. However if one allows for the sake of argument that work is causative it does not follow that the condition is compensable. A person who injures his or her lower back at work and subsequently has localised and or ridicule referred pain to a limb with limited movement is reasonably seen to have a compensable occupational condition. These are bio-mechanically plausible effects of the injury. However the regional truncal or upper limb pain, fatigue and headache characteristic of fibromyalgia are not bio-mechanically plausible effects of such injury. This complex of symptoms may well be a psychological reaction to the injury, but current ACC legislation specifically excludes psychological problems from cover." Taking account of all the medical opinion which has been submitted to this Court I have come to the view that the symptoms which the appellant described as suffering from in her initial interview with Mr Singh namely bad headaches and associated back and neck pain with nausea and dizziness were not causally connected with any particular work task or property or characteristic of any such task. Certainly there is no suggestion that the operating of the keyboard was such a property or characteristic and the only other activity was the act. of looking at a screen and it was accepted by the appellant that the ergonomics of her workstation were entirely appropriate, that statement confirmed the evidence given by the employer that the workplace had been assessed as being entirely satisfactory. Whilst the Court accepts unreservedly that the appellant has experienced the range of symptoms that she has related to the various specialists whom she has consulted, there is simply insufficient evidence to establish on balance that the requirements of section 7(1)(a) have been met. If one accepts the diagnosis of Dr Monigatti then the symptoms which the appellant displayed are a consequence of psychological stress, which is in line with Mr Singh's initial diagnosis of tension headaches, and as has been stated by Dr Monigatti her problems have a psychological cause. Under the provisions of section 7(4) personal injury that is related to 11 non-physical stress, such as the appellant's fibromyalgia is, it shall not be deemed to have been caused by gradual process, disease or infection arising out of and in the course of employment. For this additional reason then I would find that the essential elements required to establish a claim under section 7 are not present. In fact the elements present specifically exclude a right to cover. Finally, in the event that it could be established that this Court has made an incorrect findings of the medical evidence, I find that no evidence whatsoever has been put before this Court, or indeed at any earlier stage, which could establish an affirmative answer to the question posed by section 7(1)(c) of the Act. I concur with the observations of His Honour Judge Middleton in Hensley (DCA 82/97) wherein he said that it is not sufficient that simply because a person may suffer a particular injury of the type contemplated under section 7 that it automatically follows that the risk of suffering that injury is significantly greater for performing that employment task than for persons generally not performing that employment task. Some expert opinion is necessary to establish that the risk is significantly greater. For the several foregoing reasons therefore this appeal must be dismissed. DATED at WELLINGTON this 25 day of March 1998 M J Beattie District Court Judge Kane.doc KD