Marino v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 65 /99 DCA No. 43/98 UNDER the Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN: MARION MARINO of Taneatua, married woman Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION A body corporate duly constituted under the provisions of the said Act Respondent HEARD at Wellington 8 December 1998 Date of Decision: 17 March 1999 Counsel: A D Barnett for the Respondent J M Miller for the Appellant DECISION OF JUDGE P F BARBER - 2. The Issue Mr Barnett puts the issues as whether the appellant is covered by the Act and, in particular, whether she has established that she has suffered personal injury, and whether her medical condition falls within s 7 of the Act and is otherwise covered by the Act. Mr Miller also seeks consideration of the correctness of the respondent's view that, although the appellant has a chronic pain, there is no personal injury. I conclude that there seems to be a dearth of evidence in this case in terms of establishing the cause of the appellant's pain on the balance of probability. However, it would seem that her activity as a cleaner, and particularly, using polishing machines and the like over a period of about 23 years, has led to a type of OOS or tennis elbow - or whatever one likes to call continuous or chronic pain in both arms. The Facts As already indicated, I am not happy about the basic facts in this case. Counsel have helpfully referred to "the background" and the various medical experts have their versions of the facts. However, there needs to be better evidence on oath, and subjected to cross-examination, as to the nature of the appellant's work injury in terms of how it may have led to her present health problems. The appellant had been employed at East Bay Health as a cleaner for 23 years until leaving work to have a child in about July 1995. She returned to work in February 1996 and from that point symptoms of her current health problem developed. On 7 July 1996 she lodged a claim for cover with the respondent in respect of what was said to be "repetitive strain injury both arms - carpal tunnel syndrome R = LR (tennis elbow) two weeks". That claim for cover was certified by her general practitioner. The claim was then investigated by the respondent and by letter of 8 August 1996, the appellant was advised that her claim for cover in respect of carpal tunnel and tennis elbow had been accepted. The Corporation repeatedly sought her return to work, which she resisted, and this did not eventuate. By letter of 12 August 1996 the employer 3 - disputed the attribution of the claim as a work injury, and some of the appellant's stated duties and their extent. The Corporation has obtained specialist medical advice from, inter alia, Mr Foote, orthopaedic surgeon, Dr Chancellor, neurologist, Mr MacDiarmid, orthopaedic surgeon, Professor Gorman, occupational physician, and Dr Monigatti, occupational physician. None of those reports support the appellant's condition as having cover under the Act. By letter of 21 August 1997 to the appellant the respondent reasoned that the appellant's medical condition fell outside the scope of s 7 of the Act so that she had no entitlement to cover. An application for review lodged by Mr Miller was heard on 1 December 1997. The appellant did not attend the hearing but was represented by Mr Miller. The Corporation's corporate medical adviser, Dr Kelvin Bremner, appeared and gave medical evidence on behalf of the Corporation. Frankly, I do not understand why the respondent has not treated square one in this case as evidence from the appellant about her condition, her job, and the linkage which she claims between them. I would expect medical evidence to proceed from that base. The Review Decision was issued on 24 December 1997. That noted, but did not decide, the personal injury issue, but determined that even if the appellant had a personal injury she did not satisfy s 7. One would certainly be hesitant to find a personal injury situation without evidence from the claimant herself. I will deal below with the decision of the Review Officer. The Legislation I now set out the relevant provisions of the Act as, helpfully, put before me by counsel:- "s4. Definition of "personal injury" - (1) For the purposes of this Act, "personal injury" means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by section 8(3) of this Act. 4- . 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 1 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. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment. . . . (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. s8. Cover for personal injury occurring in New Zealand - (3) Cover under this Act shall extend to personal injury which - (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; or (c) Is medical misadventure as defined in section 5 of this Act; or (d) Is a consequence of treatment for personal injury [covered by this Act]. s10. General exclusions from cover - (1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is - 5 - (a) Personal injury 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; or $73. Suspension, cancellation, or refusal of compensation and rehabilitation - (1) The Corporation shall, ... if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation. $67A. Revision of decisions - (1) The Corporation may revise any decision made by the Corporation if it appears to the Corporation that the decision has been made in error, whether by reason of mistake or by reason of false or misleading information having been supplied or by reason of fresh evidence or for any other reason; and the Corporation may - (a) Amend the decision; or (b) Revoke the decision and substitute a new decision. (2) Every amendment to a decision or substituted decision shall constitute a fresh decision of the Corporation for the purposes of this Act." The Review Officer's Decision In a helpful and lucid decision the Review Officer referred to the appellant's claim for the tennis elbow type condition of 4 July 1996, and noted that the injury causes were given as "using polishing machines, vacuuming, lifting buckets". He noted that the employer disagreed that the injury was a work injury, and I have noted a reference elsewhere to a report from the employer disputing the nature of the appellant's work duties. However, there needs to be viva voce evidence under oath, and subjected to cross-examination, to get the facts clearly established. 6- The review officer referred to various medical reports, as have counsel, but I am not prepared to be submerged by these. Essentially, the medical experts are unable to diagnose a condition in the appellant consistent with her description of "pins and needles" in both arms. Nevertheless, they had her undergo a right carpal tunnel decompression type of surgery in early 1997. That was not successful in relieving pain and left the appellant with a good deal of tenderness and hypersensitivity in her right hand. Frankly, it is not clear to me whether the Corporation is now saying that the appellant does not have repetitive strain injury or any injury, or whether it is saying that while she has pain it is not linked to any injury . The Review Officer referred to submissions from Mr Miller. Apparently the Corporation reclassified an OOS claim as a fibromyalgia claim. Mr Miller had addressed the respondent's view that the causes of fibromyalgia are psychogenic from certain stresses and strains found outside as well as inside the workplace. My present feeling is there needs to be some firm evidence of these so-called stresses and strains. Mr Miller put it to the review officer that if the original OOS work claim is a workplace injury then the eggshell skull principle applies i.e. that the Corporation must take claimants as it finds them. He referred to some case authorities, as did counsel before me, but I prefer to concentrate, as did the review officer, on the facts of the present case - although in my view they are lacking or, worse still, are hearsay. The review officer referred in some detail to the evidence given by Dr Bremner. Inter alia, Dr Bremner concluded that the appellant's condition of pain has a psychosocial derivation rather than any organic aetiology or cause. The suggestion seems to be that the appellant is imagining her pain because no cause for it can be found by the medical experts, other than Dr Wigley on her behalf. The Review Officer quite correctly found that the onus of proof resides with the claimant. He referred to the recommended surgery making the appellant's condition worse. Inter alia, he referred to Professor Gorman stating in his report of 4 August 1997 that - "Marion has a form of OOS, best described as a chronic pain syndrome. Many would use the term - 7 - fibromyalgia to describe her condition. Regardless of terminology, this syndrome is not usually the result of any significant single repetitive or sustained mechanical injury or stress". The review officer later stated in his decision:- "... Professor Gorman states Mrs Marino's OOS is a chronic pain syndrome or fibromyalgia. The current diagnosis is not arising out of or secondary to an OOS work-related claim. It is the diagnosis of the type of OOS itself. Professor Gorman does mention work stress that could have contributed to her condition. This stress is of the non-physical nature and would be excluded by s 7(4). It is not the repetitive work tasks of cleaning that was originally mentioned on Mrs Marino's claim. It has not been established, on the balance of probabilities, that the property or characteristic in the work environment caused or contributed to her OOS condition of fibromyalgia or chronic pain syndrome. It follows from this that the requirements of s 7(1)(b) and (c) have not been fulfilled. The Corporation argued that Mrs Marino did not have a personal injury as defined by s 4 and s 8(2)(b) of the Act. For the purposes of any decision I have not traversed the arguments on this point. The question of whether pain is a personal injury is a controversial one and as I have already come to a conclusion on the law and evidence as regards s 7, I will not rule on this controversial area. For the reasons stated, this application for review is unsuccessful." As will become apparent below, I am unconvinced by the review officer's finding in the particular circumstances of this case. A Summary of the Submissions for the Appellant Mr Miller, very clearly and helpfully, took me in some detail through the ingredients of the above legislation and the nature of the various medical - 8 - reports. He particularly took issue with the respondent's approach that there is no physical injury to the appellant because chronic pain is not a physical injury. I do not propose to express a view on that point which must be a chestnut in this Accident Compensation jurisdiction and would seem to merit detailed submissions and consideration were that necessary, which it is not in this case. From a commonsense point of view, pain must be a symptom of some injury or illness so that in most cases it must be academic whether or not chronic pain is a physical injury because it would normally be part of an injury or illness. In this case the medical experts must have considered the appellant's description of her pain to be genuine because she was given the surgery I mentioned above. Also, as Mr Miller points out, Dr Chancellor's report of 15/10/96 refers to - "... unequivocal electrical evidence of bilateral distal median neuropathies of the type seen in CTS". A medical report of 30 January 1997 and a medical certificate of 24 January 1997 diagnose carpal tunnel syndrome. The report from D Kruger dated 17 March 1997 on the carpal tunnel release operation noted that - "At the time of surgery the median nerve appeared quite inflamed." There is also the report of Dr Wigley of 1 August 1998 as to the objective evidence of injury which he diagnosed as a physical injury. As Mr Miller points out, the respondent made much of the early views of Messrs Foote and MacDiarmid about being perplexed as to the appellant's problems, but Mr Foote's reports of 23 August 1996 and 17 September 1996 noted that he was still awaiting nerve conduction studies and, in any case, these were early reports regarding this matter. Mr MacDiarmid had recommended an operation based on the early tests and he had noted in his report of 30 January 1997 that - "Her symptoms are indeed quite genuine." I can certainly understand the comment made by Mr Miller to me that with no one suggesting that the appellant is "swinging the lead", and the respondent accepting that she is in chronic pain, it is not easy to understand why the respondent will not accept the need to compensate under the Act. - 9 - Mr Miller then addressed me in some detail on the general submission that the appellant's situation is covered by the Act in terms of ss 4, 8 and 7, and he referred in some detail to the various medical reports and to a number of case authorities. Judge Ongley's reasoning in Saddleton (No. 68/97, 17 April 1997, Napier) is relevant and helpful in terms of my views below. A Summary of the Submissions for the Respondent Mr Barnett referred also in some detail to the various medical reports but I only refer to certain aspects of these. Mr Kruger's report of 6 August 1996 refers to the appellant complaining of pain and pins and needles in the left and right arm. Mr Kruger detected some tenderness but did not seem to be able to diagnose anything in particular. Mr Foote on 23 August 1996 referred to - "The patient presents with a totally bizarre picture of "pins and needles" in both the left and right hands in no particular dermatomal distribution ..." Mr Foote seemed to accept that she was in pain but could not make a diagnosis or ascertain a recognised orthopaedic condition, and he confirmed this approach on 17 September 1996. When he received nerve conduction studies on 20 November 1996 he seemed no further enlightened. Mr MacDiarmid, orthopaedic surgeon, on 30 January 1997 also seemed rather vague in his assessment of the appellant's condition but he had the "impression" that she probably had carpal tunnel syndrome and he saw a possibility of OOS. He seemed rather suspicious but - "My impression is that her symptoms are indeed quite genuine". However, on 20 May 1997 he reported inability to identify a cause for the appellant's problem and believed that there are significant psychogenic factors involved in her problem. He concluded - "In view of the lack of pathology I would also have difficulty in supporting that her current demise is purely one of injury sustained through work activities particularly when she has worked in the same job for some 23 years." I would have thought that working in a cleaning job using heavy polishing equipment for 23 years would lead to the reverse conclusion to that of Mr MacDiarmid. - 10 - Professor Gorman seemed to be saying on 4 August 1997 that the appellant has a form of OOS but would be physically fit for some other form of occupation than cleaning. For some reason or other the medical experts retained by the respondent seemed to conclude that the criteria of s 7 of the Act are not met. There were also references to a report from her employer of 12 August 1996 stating: "Her tasks were neither. heavy or repetitive or of a nature one has become accustomed by tradition to associating with this symptomatology." That report is referred to in the transcript of the hearing before the Review Officer but is, of course, hearsay and requires cross-examination of the author of the report. I would have thought the essence of a cleaning job is that it is repetitive and there is probably some heavy work involved e.g. using polishers. There is reference from a medical adviser to the respondent of the significance that the appellant was under stress both at work and domestically; but the nature of that stress has not been made clear to me and requires evidence on oath and cross-examination. I certainly agree with Mr Barnett that the onus of proof is reposed on the appellant who must establish on the balance of probabilities that she is entitled to cover under the Act. Generally speaking, medical evidence will need to be relied on, but I expect that medical evidence to be relevant and sensible. I agree with Mr Barnett that it is helpful to address the issue of this case in terms of the "peculiar" facts of this case against the following three headings: 1. Is there personal injury as defined; and if so 2. Does the appellant have cover under s 7(1); and if so 3. Is there any reason to exclude the appellant from cover. - 11 - Since both counsel in effect made their submissions along the lines of the above three questions, I will now proceed to deal with them rather than summarise further Mr Barnett's most helpful submissions. Reasons for Decision Baffled though the medical experts seem to be about a diagnosis, they seem to accept that the appellant is in genuine pain as she describes. That being so, one might expect on the balance of probabilities that she is still suffering from a repetitive strain injury in both arms. The question is whether or not this is a work related condition and, not having heard adequate evidence, I cannot decide that; but it does seem quite likely. From the hearing before me and the welter of material submitted for my consideration, it seems to me to be very likely that the appellant suffered an OOS type complaint from her 23 years work as a hospital cleaner. For some reason or other this did not seem to hit her until she returned to that job after a 6 months break to have a baby. Maybe, something happened during those 6 months to create the OOS. I have already said there is a lack of evidence as to essential background facts. Prima facie though, it is very likely that the OOS was derived from the hospital cleaning work, and it is still with her and she is still in pain. The medical reports of the experts retained by the Corporation are puzzling and unconvincing, and the matter needs to be looked at in a simple and commonsense way without being bogged down by a welter of fairly unhelpful medical reporting. Is there personal injury? The respondent does not dispute that the claimant has a medical condition. I accept that the Corporation cannot compensate if there is no personal injury as defined in terms of s 4. It can only compensate those - 12 - whom it is statutorily empowered to compensate being, for present purposes, those in the categories contained in s 8 as personal injury caused by an accident to the person concerned, or under ss 7 or 11. I agree with Mr Barnett that the Corporation cannot compensate for disease, other than disease covered by ss 7 and 10. I agree with him that it is not enough for a person to say that she is in pain. Pain is the symptom of some harm but generally we need to rely on medical opinion and evidence to establish whether the pain is a physical problem because it could be a mental problem only. Here the respondent seems to be saying that there is no physical injury but that there appears to be a mental injury. It is true, as Mr Barnett submits, that the evidence in this case is of symptoms or a condition variously described but latterly as fibromyalgia and chronic pain syndrome, and that on 17 September 1996 Mr Foote described the signs and symptoms as "totally bizarre". Mr Barnett submitted that there is no evidence of any personal injury caused by an accident. As I have already indicated, there needs to be evidence from the appellant on oath and subjected to cross-examination, but to me there is at least prima facie evidence of personal injury arising out of the repetitive and heavy nature of cleaning work at a hospital over 23 years. I am not prepared to accept that there is no clinical sign of injury as Mr Barnett submits. I have already indicated that much of the medical evidence for the respondent is somewhat vague and unhelpful, and judgmental rather than precise. I certainly accept the statement from Dr Bremner that pain of itself is not a physical injury. Mr Barnett submits that the medical evidence establishes that the aetiology of the medical condition is unknown and the various medical reports refer to pregnancy, domestic stresses, psychosocial factors, and chronic musculoskeletal pain syndromes, smoking and diabetes. However, these various factors are hearsay and somewhat vague. Frankly, I do not think that the medical evidence establishes that the - 13 - aetiology of the medical condition is unknown. It seems to be that, on the balance of probability, the suffering still experienced by the appellant must flow from her work over 23 years as a hospital cleaner. There seems to be no suggestion that she is shamming. It seems to be accepted by the medical professionals that her position is genuine and, indeed, they had her undergo surgery some time ago. The only medical evidence to the contrary (of other said medical evidence) is that provided by Dr Wigley and, of course, the respondent accepts that I am not involved in a numbers game with regard to medical reports and opinions. I appreciate that Dr Wigley's views in relation to fibromyalgia/chronic pain syndrome are at substantial variance with the views of other specialists in New Zealand, and that he is a rheumatologist. It may well be that the views of specialist occupational physicians about occupational causes of conditions (or the lack thereof) ought to be preferred. I appreciate also that the history recorded by Dr Wigley differs significantly from the history recounted to the other specialists, e.g. the date of onset of symptoms has moved from after a return to work to 2 years previously; and there is a dispute about the nature of the work tasks undertaken by the appellant. I have already indicated that essential facts need to be clarified but I certainly accept that an accurate patient history is necessary for a medical opinion. Mr Barnett criticised Dr Wigley's report as entering the realm of advocacy, but that criticism can be directed to some of the other medical reports and, in any case, medical advocacy has no influence with me. Or Wigley refers at page 4 of his report to "objective evidence of injury", but none of the other medical practitioners have identified any injury and seemed to discount it. For all that, I am not satisfied that the appellant has failed to establish that she has suffered personal injury as defined in s 4. For this reason alone I issue this decision on an interim basis and reserve leave to either party to apply for the hearing to be reconvened for - 14 - the purposes of adducing further evidence from the appellant herself about her symptoms and her job, and for counsel to make further submissions, if they wish, on my interim views. Whether the Appellant has Cover under s 7(1) Section 7(1) is set out above. I agree with Mr Barnett that for the appellant to have cover the tests in s 7(a) and (c) must be answered in the affirmative and the test in s 7(b) in the negative (i.e. the negative test in 7(b) must be answered in the affirmative). In terms of s 7(1) (a) there is a requirement that some particular property or characteristic of the employment task must either cause or contribute to the personal injury. We need further evidence from the appellant, as I have already indicated, but it seems very likely that on the balance of probabilities the repetitive nature of the cleaning work, or heavy aspects of it,or wrist-work, caused or contributed to the personal injury. I am not yet clear what evidence there is of stresses/stressors causative of fibromyalgia from both inside and outside the employment as submitted by Mr Barnett in terms of the reports of Professor Gorman and Mr MacDiarmid. I agree with Mr Barnett that the particular work duties seem to be markedly in dispute and this aspect is elementary and, in the absence of evidence from the appellant or the employer, I cannot reliably determine what the work duties of the appellant were. I need to know the nature of the duties and the time spent on them. I agree with Mr Barnett that I need to know the whole employment picture in order to determine whether or not those duties had a particular property or characteristic. This aspect is a matter for a Court and not for medical experts. - 15- In terms of s 7(1)(b) the issue is whether the property or characteristic is not found to any material extent in the non-employment activities or environment of that person. Without hearing from the appellant one cannot answer this question but there is no particular reason to believe that this test must be answered against the appellant. Frankly, I am not clear what the medical experts mean when they say that psychosocial and stress factors and other factors were significantly present in the home environment. Also, in so far as the respondent refers to the appellant having performed the same work for 23 years without difficulty so that "the occurrence of symptoms immediately following return from parental leave supports the view that this was not merely physical work which was causative of the symptoms", I consider that such an approach is quite without foundation and that the reverse is more likely correct. In terms of s 7(1)(c) the question is whether 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. It seems to me that the further evidence I need from the appellant could well answer that factor in the affirmative. I would have thought that repetitive cleaning tasks, perhaps of quite a heavy nature, e.g. using polishing machinery, over a 23 year period create a significantly greater risk of the type of personal injury which the appellant claims to have experienced in that environment than for persons working in that environment who do not do those particular cleaning tasks. I note that Drs Monigatti and Bremner would take the contrary view but I am surprised that the medical experts involved in this case are so dismissive of the appellant's claim. I appreciate that s 7(4) also requires consideration. It is set out above and makes it clear that personal injury related to non-physical stress is to be deemed not to have been caused by gradual process, disease, or infection arising out of and in the course of employment. Mr Barnett - 16 - submits that the medical evidence establishes significant non-physical stresses in the workplace in addition to those outside work. It has not been made clear to me what those stresses are, nor their impact in this case. There needs to be evidence about them. I agree that they must be discounted in terms of s 7(4). Indeed, if they are causative of the appellant's condition there cannot be cover under the Act. Is there an exclusion under s 10 Section 10 is also set out above but merely emphasises that if the condition is wholly or substantially due to factors other than a work injury in terms of ss 7 or 11, there can be no cover. I agree with Mr Barnett that "substantially" must be given its natural and ordinary meaning "of substance", and that it could be taken to mean of clinical significance. He submitted that the medical evidence shows that, at the very least, a contribution of substance and of clinical significance was psychosocial stresses which has nothing to do with ss 7 or 11. However, presently, there is insufficient evidence about so-called psychosocial stresses and their effect on the appellant's condition. Mr Barnett submits that there is at least a substantial contribution from disease (other than under s 7) or other factors so that the appellant has no cover under the Act. He continues that there needs to be an inquiry on the point which must be more far-reaching than an inquiry under s 7(1)(b). I could not be satisfied at present that there is at least a substantial contribution from disease to the appellant's condition. However, I have already indicated that there are so many unsatisfactory basic evidential deficiencies in this case that further evidence needs to be adduced. - 17 - Further Procedures While one course might be for me to refer this matter back to the Corporation or to a Review Officer to overcome the evidential deficiencies to which I have referred throughout this decision, I think it better that I remain seized of the matter myself at this stage. I do not think that it is appropriate for this appeal to be dismissed at this point, even though I cannot be satisfied from the evidence that the appellant has established that she is entitled to cover. As I have already indicated, I issue this decision as an interim decision. I reserve leave to apply to either party with a view to the hearing being reconvened before me and evidence being given by the appellant, or whoever, on the points I have referred to above so that I can then finally dispose of this matter from my point of view. It follows that I also reserve the question of costs. I suggest that counsel confer between themselves and then liaise with my Registrar. It may be necessary for me to conduct an In-Chambers Directions Hearing, perhaps by telephone, with a view to reconvening the hearing and achieving finality. Judge P F Barber District Court Judge Wellington