Master Butchers Marlborough Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 150/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MASTER BUTCHERS MARLBOROUGH LIMITED of Blenheim Appellant Appeal No. DCA 396/98) AND MAYFIELD BUTCHERY (R V and M A RUFFELL) Interested Party AND CHRISTOPHER JOHN RUFFELL Claimant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have been requested by the parties to issue a decision on the papers. 2 The issue on appeal is whether the costs of the of the claimant's claim should be attributed to the appellant under section 7(7) of the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that on 27 November 1996 the claimant lodged a claim for cover and treatment expenses in respect of tendinitis in his right wrist which he claimed to have occurred while working as a boner for long hours in the employment of the appellant. The claimant completed two gradual process questionnaire forms in which he recorded that his symptoms began in 1996 due to consistent boning. He said that he had been employed as a Butcher for twelve years but had not previously suffered from a similar condition. The claimant's General Practitioner considered that the claimant's condition was brought about by boning at work during a "time of extra work." He said that he considered that the continuous heavy work had caused the condition. The appellant's factory manager disputed the fact that the injury arose solely out of work in its factory because the claimant had been working for some twelve years and there could be a responsibility on the part of past employers. On 13 December 1996 the respondent advised the appellant that it had accepted that the claimant had suffered an injury under section 7 of the Act and that the cost of the claim would remain on the appellant's record for experience rating purposes. When the appellant requested the respondent on 6 January 1997 to consider apportioning the claim cost among the claimant's previous employers the respondent advised that because the condition had not arisen until the appellant had commenced his employment with the appellant, it was not appropriate to apportion the costs. The only medical evidence available at that time was a report from the claimant's General Practitioner, Dr A E Armstrong, which is dated 30 January 1997 in which he states: "On approximately 13/11/96 his [Mr Ruffell's] left wrist became painful and had a grating feeling. On examination it was obvious that he had tendinits. At that time he was butchering as I recall, pig carcasses. The work was rather heavier than usual and tendinits would come on very commonly with heavy work. I hoped that this tendinits would settle down in a fortnight which it usually does. Unfortunately the tendinitis did in fact settle down but it has been replaced by what is a more common OOS syndrome with tender muscles in the extensor bellies in the left forearm. . . . In summary, there is no doubt in my mind that this injury is work related. He has no past history of the problem." The appellant then applied for a review of the respondent's decision. In the course of the review hearing, it was agreed that a further report should be obtained from 3 Dr Armstrong who stated on 5 March 1997 that he considered that the problem would be short lived and that he had no evidence which demonstrated that it had anything to do with the claimant's previous employment. He considered that the problem was not accumulative and that it had arisen out of his work with the appellant. In his evidence at the review hearing the claimant stated that his work with the appellant was repetitive and that in other positions in which he had worked the work was completely different and could involve doing one thing at one time and something completely different the next. He said that at the time the problem arose the work had been extremely busy. He considered that it was excessive work which was more than normal. In his decision the Review Officer upheld the respondent's primary decision. When the appellant lodged an appeal against that decision I considered that as the previous employers had not been notified of the review hearing, I directed that the file be referred back to the Review Officer in order that a new review hearing could be undertaken after formal notice had been given to the claimant's previous employers. As a result a second review took place on 5 August 1998 when the appellant was represented as were Renwick Meat Market, Mayfield Butchery, Apex Meats, the respondent and the claimant. At the second review hearing Mr Fletcher, Solicitor for the claimant and for Mayfield Butchery, produced a report from Mr R Maxwell, an Orthopaedic Surgeon. After examining the medical reports his conclusion was: "Therefore I can see no medical evidence of any contributing factors other than those of his employment at the time that his symptoms began, namely November 1996. It has been my experience with this pain syndrome that although the aggravating factors are due to gradual process, the duration of gradual process may in fact be quite short and occur over a period of only weeks." The evidence given on behalf of Mayfield Butchery, Apex Meats and Renwick Meat Market suggested that the work for those employers was varied and did not involve repetitive boning work similar to that which the claimant undertook for the appellant. As a result of Mr Maxwell's report, the appellant was given leave by the Review Officer to produce additional evidence and did so in the form of a report from Dr R L Bird, the appellant's company doctor. In his report dated 13 August 1998, Dr Bird stated: "In my capacity as Medical Advisor to your company, and as a General Practitioner with a special interest in Musculoskeletal Medicine, pain management and rehabilitation, I have been asked to provide you with an opinion as to the aetiology of Occupational Overuse Syndrome and related problems, particularly as they relate to a case which you currently have before the Court. In the first instance, it is important to get across the concepts of, and the differences between, acute and chronic illness. 4 Acute pain and acute illness is characterised by having a relatively clear starting point, often an identifiable cause, a predictably short duration, and a reasonable expectation of recovery. Because of the defined nature of such a condition, the treatment is usually fairly straightforward and the outcome predictable. Acute Tendinits or tenosinovitis would normally be an example of such an illness. The cause is usually identifiable, there are typical signs on examination, and the condition responds to rest and rehabilitation. Chronic pain or illness, however is quite a different proposition. The time of onset is often less clear and the course of the illness much less predictable. There are always multiple factors involved in the aetiology, encompassing a whole range of biological, psychological and social factors. The response to treatments such as rest, medication and surgery is less reliable, and treatments have been developed generally try to take a multi-faceted approach. The only clearly identified predictor of outcome is that the sooner an affected person is rehabilitated into the workforce, the better the eventual result. Occupational Overuse Syndrome is an example of such a condition. Often it follows an acute illness like tendonitis or other strain etc, but in my opinion the acute illness is only a trigger for OOS in the sense that (1) it is the last straw in a chain of predisposing factors, and (2) it opens the door to compensation such as ACC earnings-related compensation. It is interesting to note that when a chronic illness becomes recognised as being eligible for compensation the incidence tends to increase markedly, and we have seen this phenomenon with Occupational Overuse Syndrome. Conversely in countries such as the USA where they have moved towards reducing the compensatability of such illnesses the incidence has dropped again. This is not to say that people are malingering or faking their illness (in my experience such behaviour is extremely rare, and people suffering from OOS do experience considerable pain and suffering), it just highlights the fact that these illnesses are very complex and respond to a lot of different factors. A problem arises when we try to attribute causality. Whereas with Tendinitis we can say it was caused by a certain type of injury over a fairly specific period of time, in the case of Occupational Overuse Syndrome it is very hard to know exactly how and over what time period the various factors involved led to the condition appearing. To a large extent in chronic conditions we are forced into making arbitrary attributions by the current system of compensation, whereas the current predominant understanding is that these conditions are complex and multifactorial. At best, in this situation, we can say an injury contributed to the cause along with a range of other factors, and the length of time over which the condition has developed its conjecturel. The evidence suggests, and in my opinion this is the most widely held view, that chronic conditions such as Occupational Overuse Syndrome result from the cumulative effect of a range of factors operating over a considerable period of time, and not simply a short period of exposure to increased work load." The Review Officer concluded that the medical opinion indicated that the claimant's injury arose in a relatively short span. On that basis he considered that the overtime work for the claimant which involved extensive knife handling duties produced the symptoms from which the claimant contracted tendinitis. He confirmed the respondent's primary decision to apportion all the costs of the claimant to the appellant's claim history. It is against that decision which the appellant now appeals. 5 The appellant has expressed the view that it finds the decision of the Review Officer difficult to follow. The appellant submits that there was no evidence from the claimant which would justify the Review Officer's decision. The appellant submitted that because medical opinions are only opinions, they should not form a significant part in the determination of the case. The appellant's principal argument is that when completing the gradual process form the claimant had been asked how long he had been doing the type of work which caused this type of condition and he answered it was twelve years. He then went on to state the names of his various employers. The appellant submitted that that confirmed its contention that the claim costs should be apportioned between the various employers. Submissions on behalf of Mayfield Butchery stated that the Review Officer was correct to hold that the injury sustained by the claimant was caused or contributed to at the work site of the appellant. The submission was that the Review Officer correctly rejected the argument that section 7(7) is no requirement to consider the quantity of exposure. The submission on behalf of Mayfield Butchery was that while the claimant's work was of a similar nature to the work which caused the injury it did not follow that Mayfield Butchery was also liable. On behalf of Mayfield it was submitted that the appellant had invited the Court to consider section 7(7) in complete isolation from the rest of the section and the rest of the Act. It is submitted that section 7(7) is clear in requiring that there must first be a gradual process which leads to a valid claim and that on that basis there was no evidence that while the claimant was employed by Mayfield Butchery the gradual process had commenced. The respondent submitted that in order to apportion costs among more than one employer it is necessary to establish that each employer exposed the claimant to a particular property or characteristic that caused the injury by gradual process (Moore Business Forms and Systems Ltd v ARCIC (75/97)). The respondent submitted further that on the basis of the medical evidence the claimant's tendinitis arose out of and in the course of the claimant's employment with the appellant when he undertook continuous and particularly heavy boning. The respondent conceded that while the claimant's evidence regarding overtime was not disputed and was not referred to at the second review hearing, it was part of the transcript at the first hearing at which the appellant was also represented and the evidence was not disputed. The respondent submitted further that the evidence on behalf of Apex Meats, Mayfield Butchery and Renwick Meats Market all supported the claimant's evidence that his work for those various employers did not contain the particular property or characteristic which was present in his employment with the appellant. The respondent submitted that the Court should look with some care on the evidence of Dr Bird because he is the medical advisor to the appellant and has expressed an opinion contrary to Mr Maxwell. In fact, Dr Bird is the only practitioner who has expressed a view contrary to that of the other medical persons involved in the appeal. The issue falls to be decided under section 7(1) of the Act which 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--- 6 (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." And section 7(7) which states: '(7) For the purposes of this Act, the employer of the person shall be the last employer whose employment exposed that person to the gradual process or the risk of the disease or infection; but where the person was employed by more than 1 employer in work involving that gradual process or that risk of disease or infection (as the case may be) the costs of the claim shall be divided between those employers in proportion to the periods of employment of the affected person with those employers." In Moore Business Forms (75/97) Judge Imrie held that there was a duty on the respondent to establish that a claimant's personal injury was contributed to by gradual process arising out of and in the course of employment with the appellant before it could proceed to the stage of considering the question of apportionment. When the file first came before me I was concerned that there was no evidence that the previous employers of the claimant had been involved in the review proceedings with the result that if the Court found that the appellant's submission should be upheld this could give rise to a breach of natural justice. It is for that reason that I directed that a new review hearing should take place in order to give the previous employers an opportunity to present evidence as to the nature of the work undertaken by the claimant for each of them. Those issues have now been fully canvassed at the review hearing. The question of causation is the first preliminary issue to be considered. The evidence of Dr Armstrong is that exposure that was necessary to cause the claimant's problem needed to have been only of short lived duration and he was adamant that it had in fact occurred as a result of the nature of his work at the appellant's premises. This opinion was supported by Mr Maxwell, an Orthopaedic Surgeon, and the only medical evidence against that was that of Dr Bird, the appellant's Medical Advisor. A consideration of Dr Bird's report really only amounts to a general description of Occupational Overuse Syndrome and tendinitis and two possible causes. In my opinion it does not appear to address the specific situation of this claimant whereas the other medical reports do. Section 7(7) deems the last employer whose employment exposed the claimant to the gradual process to be the employer to whom the costs of the claim should be attributed but if similar exposure occurred in previous employment then the 7 respondent may apportion the cost between those various employers in proportion to the periods of employment. I agree with the Review Officer that the evidence he heard and in particular the medical evidence was insufficient to satisfy the Court on the balance of probabilities that the injury arose other than by virtue of the claimant's employment with the appellant. The appeal is dismissed. DATED at WELLINGTON this 15 day of June 1999 A W Middleton District Court Judge dca396-98.doc (nr)