Henare v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 14 3 /95. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 48 / 94 / 04 40 BETWEEN MERATA AMY HENARE of Whangarei Appellant (Appeal No. DCA 163/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of November 1995 APPEARANCES C L Cook for appellant G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992 for her left hip condition. The appellant, who is now aged 53, worked as a laundry supervisor in the Whangarei Hospital for 20 years. On 15 July 1993, she lodged a claim with the respondent for cover and treatment expenses for injury to the left hip which was diagnosed by her doctor as being occupational osteoarthritis. On 10 March 1994, the respondent declined the application and in doing so stated that "your condition is due to natural process and not work related". The appellant applied for a review of that decision. 2 The appellant gave evidence before the review officer that she had been employed at the Whangarei base hospital laundry which involved loading and unloading dirty washing. She said that in the first five years the linen came down a shoot and she was required to put it into a front loading washing machine. When the washing was completed she had to unload the machine to a trolley and drag it some 7 or 8 paces to place it in a spin dryer. When that operation was completed she removed the linen which was then placed on a table for attention by other workers. She said that about 14 years previously new machines were installed and the linen was delivered in bags. Each bag weighed 28 pounds and were dropped on the floor thus requiring the appellant to pick them up, stack them and load the washing machines. Those machines did the washing and also spin dried the laundry. When that operation was completed she was then required to unload the damp linen which thereafter was handled by other workers. When the appellant first commenced work in the laundry she was one of a team of six which was reduced to four when the new washers were installed, but now only two people carry out the operation. There are four machines in the laundry which are loaded 8 times per day. In her evidence to the review officer she said that she "considers her left hip injury was caused by the work as she loads the machine by picking up a bag of linen and throws the linen into the machine pivoting twisting from her right to left". She said that she is the longest serving employee in the laundry, the next longest having been there seven years. The review officer stated: "It is clear the medical opinion indicates that while the condition was not possibly caused by work, it definitely contributed and therefore the requirements of paragraph (a) are met as is paragraph (b) as the applicant has not identified and there is no evidence otherwise to show the non-employment activities materially contributed to the condition." The review officer declined the application and held: "While I consider the contribution that the work made promotes the risk of suffering the injury to a grater extent for persons performing that employment task in that environment than for persons who do not perform that task, I do not consider that it can be said that this is 'significantly greater'." The first medical report on the file is from Mr I Peters, an Orthopaedic Surgeon, to whom the appellant was referred by her General Practitioner. The report which is dated 15 February 1990 states: "Thank you for referring Amy. She is 47 years old and works in a laundry and has complained of pain in the left hip and leg for about one year. This is 3 gradually getting worse. She describes the pain as being most acute in the groin region but it does radiate down the leg to the level of the ankle. She does get intermittent back pain, she is not certain which is the worse but my guess is that it is in the hip. As far as her disability is concerned, her walking distance would be approximately half a mile. She does not use a walking stick. She finds stairs difficult to negotiate but can put on her own shoes and stockings. The pain quite often wakes her at night, she is on regular anti-inflammatories. The pain is specifically aggravated by twisting and turning at work. Her general health is good at the moment but her past history is interesting in that she had a nephrectomy at the age of 16 possibly for TB. She was later admitted to the hospital for chest involvement and I think was last assessed in 1971 regarding this. The examination noted that she had a slight antalgic limp on the left side. The trendelenberg test is negative. The range of motion in the lumbar spine today was really very satisfactory. Heel and toe walking was normal and straight leg raising was normal. Both knee and ankle reflexes were present and symmetrical and there was no obvious motor deficit. With regard to the range of motion, the right hip was quite satisfactory and the left hip showed flexion to 100 degrees, full extension, abduction and adduction range at about 25 degrees each way and internal external rotation about 30 degrees in each direction. The rotatory range was the most painful and the most limited. X-rays of the lumbar spine showed degenerative changes in the lower lumbar vertebra which appeared to be slowly progressive. X-ray of the pelvis confirmed advanced degenerative changes in the left hip. This does appear to be straight forward osteoarthrosis and I saw no sign to suggest that this could be a To hip. It is my suggestion that we try and maintain conservative treatment. She is still very young for a hip joint replacement. I have suggested that she try and lose a stone in weight, that she attend a physiotherapy programme at the Base Hospital for both back and hip care and that she modify her work programme. I think ultimately she will come to a total hip joint replacement of a non cemented variety but this should be stalled off for as long as possible." A report from Dr G Batchelor, an Occupational Health Physician, dated 11 July 1993 states: "Amy has seen Ian Peters with degeneration of her (L) hip. He has said that she will eventually require hip replacement, but to put it off as long as possible. I don't think there is any doubt that her problem is the end result of a 'gradual process' injury incurred at work. The Physiotherapist/Ergonomist has been 4 looking at her work station, and noted that for 20 years she has been throwing heavy laundry bags into the machine, and simultaneously pivoting on her (L) hip. I am getting her to do different work in the laundry to try and prevent further damage, hopefully postpone surgery. I think it would be helpful if you could apply for A.C.C. for her, so that any further treatment would be covered, and hip replacement expedited if this becomes an option. I suggested to her to make a longer appointment next time she sees you, so you can go into the matter." A further report from Mr Peters on 23 September 1994 to the review officer states: "In reply to your letter of 25 August 1994. I first assessed this patient in February 1990 at the request of her GP Dr Lindsay Couper of Whangarei. She works in the laundry at the Whangarei Area Hospital and at the time of the assessment she was 47 years old. She complained of pain in the left hip and in the left leg for approximately one year. This was steadily getting worse. The pain was most acute in the groin region but it radiated down the leg to the level of the ankle. She also notes some intermittent back pain. At that time her walking distance was approximately half a mile. She did not use a stick, she found it difficult to negotiate stairs and was able to put on her own shoes and stockings. She was often woken up with pain at night. She required regular anti-inflammatories. She found that her pain was specifically aggravated by the requirements of her work which necessitated a lot of twisting and turning. Her past history was relevant that she had a nephrectomy at the age of 16 possibly for tuberculosis. She was later admitted to Hospital for, what is believed to be, primary To. She required treatment and was last assessed and cleared in 1971. The examination formed an antalgic limp on the left side, a negative Trendelenberg test and the range of motion in the lumbar spine at that time was satisfactory. Heel and toe walking was normal. Both knee and ankle reflexes were present and symmetrical and there was no obvious motor deficit. The range of motion in the right hip was quite satisfactory, the left hip noted flexion to 100 degrees, full extension, adduction and abduction range about 25 degrees each and internal rotation 30 degrees as well as external rotation 30 degrees. The rotatory movement caused the most discomfort. X-rays of the lumbar spine noted degenerative changes in the lumbar vertebra. X-rays of the pelvis confirmed advanced degenerative changes in the left hip. There were no features to suggest that this had been affected by tuberculosis. Mrs Henare has subsequently undergone a left total hip joint replacement as a result of progressive deterioration in the hip joint. In site of her relatively young age it was felt that it was necessary to get on with the procedure. This was carried out on the 7.9.94. A non cemented total hip joint replacement 5 using a CLS titanium stem and Duraloc titanium plus plastic cup and ceramic head was utilised hopefully to maintain bone stock for as long as possible and to defer a revision procedure as far into the future as possible. Her post operative course was satisfactory. She is known to have some degenerative changes in the lumbar spine but rehabilitated well in the early post operative phase. The specific cause and effect relationship between her work and her arthritic hip however remains difficult to establish with certainty. I feel there is no doubt whatsoever that her work has resulted in a progressive deterioration of her hip thus finally necessitating the joint replacement operation. In other words the arthritic hip itself would have been badly disadvantaged by the loads placed on it and no doubt this would have contributed to the current situation where joint replacement was required. The more difficult issue is whether the original condition was caused by her work pattern or not. I would certainly agree that this is possible, that there would be no way of proving this short of having a series of radiographic records extending back to her pre-employment situation. finally my feeling would be to support this patients claim as I know that she has an excellent work record and persisted in her duties when her hip condition was quite severe. I do not think canvassing another opinion such as a Rheumatologist would be of any further benefit as the end point for direct cause and effect would be impossible to rove either way unless there are the x-ray records going back to the period before and after installing the new machines." A further report from Dr Batchelor dated 20 December 1994 states: 'I presume that her G.P., Dr. Shane Reti, has applied for A.C.C. for her. This was based on his own judgement, but also on my recommendation, as the history is highly suspicious that the degeneration in her (L) hip was the end result of ' Gradual Process' injury in the course of her work. Severe degeneration in only one hip in a person of her age is most likely due to either trauma or a disease process in the affected hip. There is no evidence of any other disease process, and no record of trauma other than that which has occurred in the course of her work, which has been well documented. These factors have all been well covered in Mr. Ian Peters report to the Review Officer, and although he admits that the gradual process work injury cannot be proved, he supports Amy's claim for A.C.C. as the evidence available leaves little doubt as to its cause. I consider that it would not only be unfair to Amy to try and contest this decision, but also that any protest is unlikely to succeed." The issue is governed by s.7 of the Act which states: 6 "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. (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." It is clear from the findings of the review officer, with which I agree, that the requirements of s.7(1) (a) and (b) are met so far as this appellant's claim is concerned. While Mr Peters has suggested that the osteoarthritis can occur naturally as part of the ageing process he does concede that it is possible that it has arisen from her employment task. Dr Batchelor is an Occupational Health Physician whose specialty is to consider occupational related problems and in his view the long period of employment doing the one task has created this appellant's problem. I consider that while the radiological evidence shows some degenerative change in the right hip and spine this may well also be related to the appellant's occupation rather than the ageing process because of the compensation which would have been necessary for her to make because of the pain and problems in her left hip. I consider that on the totality of the evidence it is clear that the appellant has been performing an arduous and heavy task which involves exactly the same rotation while lifting heavy bags and that that is the cause of the osteoarthritis in her left hip. In my view, the review officer was wrong to find that the risk of suffering that injury was not "significantly greater" for a person performing that task in that environment than for persons who do not perform that task in that environment. I consider that the appellant has suffered personal injury by accident in terms of s.7 and is entitled to cover. The appeal is allowed and there will be costs of $800. DATED at WELLINGTON this / 9 day of December 1995 A'W Middleton District Court Judge dc163-95.doc(rd)