Mace Engineering Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT ILD AT WELLINGTON Decision No. 250/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MACE ENGINEERING LIMITED of Christchurch Appellant (Appeal No. DCA 178/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 20th day of October 1998 APPEARANCE/COUNSEL K Stringleman, advocate for the appellant J D Palmer, counsel for the respondent J A Wilton, counsel for J D Burt RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the Review Officer who upheld the respondent's primary decision that Mr J D Burt (the worker) had suffered personal injury by accident by way of a gradual process work injury under section 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. 2 me worker was a foundry worker for the appellant and lodged a claim with the respondent- on- 30 April - 1996 - stating that he had suffered "R extensor epicondylitis/strain" as a result of repeated lifting of 50 - 60 kg weights in the course of his employment between November 1995 and April 1996. The worker completed a gradual process questionnaire in which he said that the problem arose through drilling and polishing tyre moulds by hand as well as lifting weights by hand. The worker said that he carried out the work for 8 - 11 hours per day and had been working for the appellant for some nine years. The appellant submitted a gradual process questionnaire to the respondent in which it disputed that the worker's injury was work related because it understood that the worker did similar type of work in his home workshop and undertook regular weight training and road a large motorcycle. On 26 June 1996 the respondent notified the worker and the appellant that the claim had been declined as there was insufficient information upon which to determine cover. As a result, the appellant's General Practitioner, Dr C Hunter, submitted a further gradual process questionnaire in which he confirmed the diagnosis of "R extensor epicondylitis/strain" which he considered was caused by his work as a foundry worker. Subsequent information from the worker established that he had not undertaken any home welding tasks during the previous 18 months and had not been engaged in weight training for some 12 months. He also said that the motorcycle riding only involved monthly or fortnightly rallies. The respondent considered the new information as a result of which it notified the appellant and the worker on 12 September 1996 that it accepted that the worker had suffered a gradual process work injury under section 7 of the Act. The appellant lodged an application for review of that decision. After the review hearing had commenced, it was adjourned to enable the appellant's representative to obtain further medical reports. The first report was supplied by Professor A G Rothwell on 29 July 1997. He confirmed that he had first seen the appellant on 17 October 1996 after a referral from his General Practitioner. He confirmed a history of chronic lateral epicondylitis and gave as his opinion: " Chronic lateral epicondylitis is a common condition which can be precipitated by both work and non work activities and of course once it is established it can be aggravated by any activities involving active wrist extension which is most commonly used when grasping and lifting objects. Thus it is quite impossible to state whether Mr Burt's symptoms were caused by his employment but certainly once established the work conditions contributed to the chronicity of the condition. As far as the three conditions in section 7(1) are concerned I cannot give an informed opinion about any of them except as stated above, chronic lateral epicondylitis is a common condition which occurs as much outside the work place as within it." 3 The second report was obtained from Dr J Alchin, a Specialist Occupational nysician who visited the work place. In that report Dr Alchin noted that although no letterboxes were being worked on that he could see, he said "it was clearly heavy" He also had the worker demonstrate how he had to adjust the machine upon which he worked and he also watched the worker perform the drilling on the tyre moulds. He said that the operation being worked weighed 14 kg and was reasonably heavy. Dr Alchin considered that the most demanding of the worker's tasks was the hand- filing although some of the other tasks may have been required to be performed over a longer time. Dr Alchin then gave as his opinion: "In answer to your specific questions: 1. Diagnosis The most likely diagnosis is a recovering chronic right lateral epicondylitis. Although Mr Lester, Prof. Rothwell and myself all found some atypical findings of this condition, it is still the most likely diagnosis because of the prevalence of this condition, the response to the treatment (steroid injection and now surgery), and the more classical findings by Prof. Rothwell in May 1997. I do not know what to make of the apparent cysts over the palmer aspect of MCP joints of his right hand; Prof Rothwell does not mention this. In any event, the pain and swelling here was fully resolved with the injections, and they are not part of the current claim. Mr Burt was himself quite concerned about the apparent wasting over his knuckles; but Prof. Rothwell was apparently not concerned and did not know if it was of any significance; in addition I am not convinced that I could actually detect any wasting there. I do not believe at the moment that this is a major problem. Thus his only current diagnosis is chronic right lateral epicondylitis. 2. Prognosis This condition is very common (1-3% of adults are diagnosed with epicondylitis at some time). It is generally considered to be a minor, benign and treatable condition. Nevertheless, a small minority require surgery, and of these (according to Prof. Rothwell) about 25% do not get sufficient pain relief. But in general recovery is to be expected, and I would accept Prof. Rothwell's figure of a 75% chance of sufficient recovery for Mr Burt to return to his work. I note that he is still improving, and is now better than he was before the surgery. It is most likely that he will be fit soon to return to his normal job. He does not have to be painfree before he returns to work. But the return to work should be progressive rather than sudden. Epicondylitis is too benign a condition to result in prolonged or permanent work loss; it should be treated and the person returned to work. For that small percentage of people whose pain is inadequately relieved by treatment, the management is not to keep them off work, but they should attempt to return to work either in the same job (putting up with the pain as best they can), or seek alternative work. Thus something is wrongly managed if the employer is faced with high experience rating costs for prolonged work absence. Mr Burt should soon return to work, so (if the claim is accepted) Mace Engineering should not be faced with further costs. 4 3. Pre-existing medical conditions There are none that I am aware. -I-note that Prof. Rothwell was not aware of any either. 4 &5. Other medical practitioners Mr Burt has only previously seen Dr Hunter, Mr J. Lester (I have not seen his report), and Prof. Rothwell. I enclose copies of Prof. Rothwell's first 2 reports, and a report of the fight forearm ultrasound. 6. Unusual features As noted, it is perhaps a little unusual that he did not have pain over the right lateral epicondyle with resisted right wrist dorsiflexion. This however may simply indicate the extent to which he has already recovered. I also note that late last year Prof. Rothwell also did not find this usual finding. Otherwise there is nothing unusual about his condition. It has responded as expected to steroid injection, and now to surgical release within a steady and progressive improvement which should be expected to continue. 7. Section 7(1) (a) The evidence here is mixed. I agree with Mace Engineering that the majority of Mr Burt's work does not seem to be particularly heavy, although it is often repetitive. But there certainly does seem to be some heavy lifting involved, although the original statement of frequent lifting of 50-60 kg weights at work is probably an overstatement. Mr Burt's statement to me that his symptom first developed when work on the letterboxes which required manoeuvring suggests that it may have been that task rather than the drilling which precipitated symptoms. Unfortunately this work was not in progress when I visited. The evidence of other employees is also equivocal: the affidavits note arm discomfort in people apart from Mr Burt performing his work. This seems to contradict the statement in the submission by Mace Engineering that no one else had arm discomfort from this work. On talking to staff, however, the major discomfort was in the flexor aspect of the wrist, although one employee noted pain affecting the whole arm. In addition, it does not appear that any one else sustained lateral epicondylitis, the subject of Mr Burt's claim; therefore the presence of arm discomfort in other employees, although worth noting, is not entirely relevant and certainly does not establish that Mr Burt's work caused his lateral epicondylitis. I note and have some sympathy with the comments by Prof. Rothwell in his latest report that this condition can be "precipitated by both work and non-work activities", and that it is "quite impossible to state whether Mr. Burt's symptoms were caused by his employment. I cannot give an informed opinion" about section 7(1). Having viewed all the evidence, including a workplace visit, I would be of the overall opinion that Mr Burt's work could cause lateral epicondylitis. That is, I would accept that the nature of this work could cause lateral epicondylitis. The degree of lifting and repetitive work could well cause this condition in some individuals. 5 (b) This section, to my mind, is the most difficult one in this case. Mr Burt's activities -away from Mace- Engineering (weight training, working in the workshop, motorbike riding, fishing) could all contribute to or cause lateral epicondylitis. The time sequence therefore becomes important. I note the statement that he had stopped some of these activities (weightlifting, building weight lifting benches in his workshop at home) some months before the symptoms began. If this is true, then those particular activities are not likely to be relevant. Here I disagree with the submission from Mace Engineering: there are no grounds to attribute lateral epicondylitis to an activity which stopped months before symptoms first appeared. But Mr Burt was still active outside of work in spite of having stopped these activities: he continued to do some work in his workshop at home, to ride his motorbike, and to fish and hunt. These factors cannot be totally discounted. But on balance, it seems to me that his work was more likely to have been the major factor because of the hours spent at work compared to on these other activities, and his recollection that symptoms first began when performing more work on the letterboxes which entailed different sorts of manoeuvring than usual. This suggests to me that it is perhaps more likely that work rather than non-work factors was the cause. But I fully endorse Prof. Rothwell's comment that in such cases certainty is impossible. One really looks at probabilities: the more physical a job is, the more likely it is that work will be the cause of the lateral epicondylitis. (c) I would consider this criterion to be satisfied: lateral epicondylitis would be more common in people performing Mr Burt's work than in people not performing that work." The Review Officer also received evidence from three employees of the appellant who had also worked alongside the worker each of whom had displayed similar problems with sore arms when involved in the work of drilling and scraping tyre moulds. The Review Officer concluded that he should adopt the opinion of Dr Alchin who had had the benefit of a site inspection and had observed the work. He was satisfied that the non-employment activities were not of sufficient intensity to have been the cause of the problems and he accepted Dr Alchin's opinion that lateral epicondylitis would be more common amongst persons performing the worker's work than for persons not performing that work. For those reasons the application for review was declined. It is against that decision which the appellant now appeals. Ms Stringleman submitted that each portion of the three stage test of section 7(1) had to be answered in the affirmative in order to qualify for cover. She submitted that on the basis of the medical reports it could not be said that either Dr Alchin or Professor Rothwell were able to give an opinion as to the exact cause of the worker's condition. She submitted that the worker's non-work activities were of a similar type to those involved in his work and that there was a period between November 1995 and June 1996 during which the symptoms and the weight training could have coincided. She submitted that Dr Alchin's statement that the weight lifting activities had ceased some months before the symptoms began was not entirely accurate and that the 6 "-idence suggested that the worker ceased the activity about the time the worker vegan to -notice the symptoms.- - Ms Stringleman submitted further that if epicondylitis was common with 1 - 3% of adults, it was difficult to understand how Dr Alchin could conclude that the requirement of section 7(1)(c) was met. She submitted that if 1 - 3% of the adult population suffer the condition and do not carry out those employment tasks then it was obvious that there could not be a significantly greater risk in carrying out those tasks. Mr Wilton submitted that on the basis of Dr Alchin's report, he being an Occupational Specialist, the Review Officer was correct to adopt his opinion. Mr Palmer submitted that on the balance of probabilities the evidence established that all the grounds for cover under section 7(1) were made. Section 7(1) states: " 7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment---(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 (b ) 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." In order to establish that the worker has cover for personal injury by gradual process, it is necessary to satisfy each of the three tests under section 7(1). Dr Alchin made a visit to the workplace where he saw a worker undertaking the type of work in which the worker had been engaged when his condition developed All the medical evidence confirms that he suffers ( R) extensor epicondylitis/ strain. After seeing a worker undertake similar work and testing the weight of the objects involved, Dr Alchin concluded that the nature of the work was such that it did have a particular property or characteristic which caused or contributed to the worker's condition. This would also appear to be confirmed by the evidence by the three workers who provided evidence for the Review Officer that each of them, having been engaged in the same type of work as the worker, had experienced similar symptoms. Dr Alchin considered that the work involves a degree of lifting and repetitive work which was of a type which can be responsible for the onset of epicondylitis. 7 . Alchin was aware of the nature of the worker's non-work activities, being the work in his workshop, his weight training and motorcycle riding. He was aware that for some time the worker had given up those activities and although Ms Stringleman had submitted that there could have been some period of overlap, I must accept Dr Alchin's finding that "on balance, it seems to me that his work was more likely to have been the major factor because of the hours spent at work compared to on these other activities, and his recollection that symptoms first began when performing more work on the letterboxes which entailed different sorts of manoeuvring than usual." As with the Review Officer, I accept Dr Alchin's opinion that lateral epicondylitis would be more common in people performing the work in spite of his general suggestion that epicondylitis is a common problem in 1 - 3% of the general population. I consider that some weight must be given to his opinion that it be more of a problem for people performing the work than for people not performing the work. In cases of this nature the review officer and the Court have to be guided by the Specialist evidence. It has been stated in a number of appeals concerning the issues raised by section 7(1) that it is preferable that a Specialist should inspect the work site and become familiar with the nature of the work involved. That has been the position here. I agree with the review officer that the best evidence available is that of Dr Alchin. I do not consider that the appellant has satisfied the onus on it to establish on the balance of probabilities that the decision of the review officer was wrong. The appeal is dismissed. DATED at WELLINGTON this | St day of December 1998 A W Middleton District Court Judge