Whittaker v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 27 7 /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 MICHELLE MARIE WHITTAKER of Palmerston North Appellant (Appeal No. DCA 66/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 16th day of September APPEARANCES/COUNSEL N King - advocate for appellant A D Barnett - counsel for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under s.7 of the Act The appellant lodged a claim for cover and expenses in April 1998. She claimed to have suffered carpal tunnel problems in her arm as a result of continuous use of a computer over a period of two years. At the time she lodged her claim she was working for Trust Bank for the period 25 July 1997 to 26 March 1998 and between 1 July 1996 and 25 July 1997 had worked 2 for Caltex. The form noted that she had first consulted her doctor on 1 March 1997 following numbness in her arm which she first noticed on 5 February 1997. In answer to the question whether she had suffered similar conditions in the past she stated that she had suffered carpal tunnel in her left hand and the cause was considered to be during her pregnancy 6 years previously. The appellant, general practitioner, Dr Telfer, completed a medical practitioner questionnaire in which he diagnosed carpal tunnel syndrome in the right wrist and hand and also early left sided carpal tunnel syndrome. On 18 May 1998 the respondent accepted that the appellant was entitled to cover. On 1 July 1998 the respondent notified the appellant that it had received an application for review of its initial decision from Trust Bank as a result of which it had referred its file to its Branch Medical Advisor, Dr Shirer, who completed a file memorandum on 29 June 1998 which stated: "This client obviously had carpal tunnel symptoms during pregnancy. It would seem Dr B Telfer mentioned this fact. She then developed further carpal tunnel symptoms at: (i) work; only on very limited hours not at all OOS type situation; ii) playing netball and squash will aggravate carpal tunnel compression. This claim was approved at OOS Claim Centre without medical review at that time. Also a history that ACC accepts carpal tunnel syndrome as OOS. But here there is a clear previous history." In its letter of 1 July 1998 the respondent notified the appellant that as a result of Dr Shirer's opinion it had revised its decision pursuant to s.67A of the Act and that the original decision was thereby revoked. The reason attributed to that decision was that the appellant had stated that she had suffered from the same symptoms some 6 years previously so that the problem could not be attributed to her employment. The appellant applied for a review of that decision, as a result of which the appellant was referred to Dr Keir Howard, a consultant and specialist in occupational medicine. He examined the appellant on 22 October 1998 and issued his report on 24 October 1998. His opinion was: "The issue of causation of carpal tunnel syndrome is a difficult and vexed one. There are still conflicting opinions about the cause of the problem and the relationship of carpal tunnel syndrome to work tasks. However, it is reasonably clear that it is associated with occupations which require a considerable amount of flexion and extension and deviation at the wrist. Computer work therefore has been associated with this condition. In my opinion therefore it is 3 reasonable to say that Mrs Whittaker's condition is broadly consistent with the nature of her employment. However, I have to say that, in my opinion, it is very unlikely that the relatively small amount of computer work that she undertakes in the course of a 15 hour week would be the primary cause of her existing right handed problem. Other factors must therefore be taken into consideration, such as housework, as well as forms of previous employment. It is noted that her symptoms began to develop before she was in her current employment and in fact started when she was working with Caltex. It would appear that she was undertaking a greater amount of computer work at this stage, including the use of the computer mouse, and it is possible that these more extensive duties may have contributed more to the development of her problem. In my opinion, however, carpal tunnel syndrome is generally multifactorial in origin, unless a very specific set of work circumstances can be identified. I apologise that it is difficult to be more specific than I have been but the issue of carpal tunnel syndrome and its relationship to occupation is far from clear and although I would be prepared to accept a relationship with extensive computer work, I have to express some doubts with regard to the relatively small amount of computer work that Mrs Whittaker is doing at the moment. However, as I indicated earlier, her current employment cannot be deemed to be the cause of her symptoms since they arose at an earlier stage when employed elsewhere." The review hearing took place on 7 December 1998 when the appellant was represented by Mr Neilson, her then advocate. It appears that Mr Neilson submitted to the review officer that the issue was the decision of the respondent that the prior carpal tunnel symptoms during pregnancy meant that the injury had not arisen out of and in the course of employment. He submitted that as Dr Howard's opinion was that the prior symptoms were not material, the appellant was entitled to succeed with her application for review because the single ground of the primary decision had been rejected It appears that the review officer requested submissions from the representatives of both Caltex and Trust Bank who were present at the review hearing, as a result of which the review officer concluded that the review hearing should proceed on the broad basis that the requirements of s.7(1) had not been met. Mr Neilson acknowledged that the review hearing should proceed on that basis but was granted leave to make further written submissions following the hearing. It appears that Mr Neilson did not make further written submissions and the review officer issued a decision on 21 December 1998 in which he found that the application had to be declined because the appellant did not satisfy the requirements of the tests under s.7(1). It is against that decision which the appellant now appeals. Mr King submitted: 1 . That the review officer erred in expanding the scope of the review hearing beyond the confines of the decision of 1 July 1998. He submitted that while the review officer accepted that the decision of 1 July 1998 was revoked he then 4 proceeded to issue a decision regarding acceptance of the claim under s.7 whereby the appellant was denied review rights in respect of that further decision. 2. That while the review officer held that the onus was on the appellant to prove on the balance of probabilities that the tests under s.7 were met that was placing an onus on the appellant which should not have been imposed until at least the respondent had made an unfavourable decision. 3. That the review officer relied on the opinion of Dr Howard which was not specific and did not include clarification of some aspects and appropriate workplace assessment so that the review officer did not have sufficient evidence upon which to base an unfavourable decision under s.7. Mr Barnett submitted: 1. That the issue before the Court should not be confused with the position where a primary decision is made declining cover for a personal injury by accident per se and then at the review stage the issue is decided as if it were a claim for personal injury arising from gradual process or disease. He submitted that a similar situation arose in Lukes v ACC, a decision of Justice Smellie in the High Court at Wellington issued on 5 May 1992. That appeal arose out of a decision made under the Accident Compensation Act 1982 and Justice Smellie held that there was no jurisdiction to hear an argument and make decisions on occupational disease under s.28 of the 1982 Act when the claim had initially been considered as personal injury by accident per se. 2. That a consideration of the file up to the time of the review hearing indicates that the question of declining cover was not limited to the fact of the appellant's prior symptoms of carpal tunnel injury during her pregnancy. That the administrative review undertaken on 30 October 1998 relied on the wider considerations covered in Dr Howard's report. Notwithstanding that, Mr Neilson had initially relied on the narrow issue but then conceded that it was appropriate to proceed on the basis that s.7 was in issue and both the appellant's employer and previous employer were present and made submission on that basis. In addition, the appellant was present and gave evidence and Mr Neilson was granted leave to file further submissions should he wish to do so. However, he elected not to file additional submissions. 3. That the substantive issue is whether the appellant can meet the requirements of s.7(1). 4. That the issue must be decided on specialist medical opinion and that the only specialist opinion is that provided by Dr Keir Howard whose opinion was that the left sided carpal tunnel syndrome suffered by the appellant in the course of her pregnancy some 6 years previous should be excluded from consideration of her current position. That in considering Dr Howard's report it is clear that in his opinion the cause of carpal tunnel syndrome is multifactorial. That he did not 5 conclude that the amount of computer work the appellant was undertaking was the likely cause but that even if the employment was a cause then on the balance of probabilities it was not a material cause. 5. That Dr Howard suggested other non-employment activities as being possible causes for the problem 6 . That the test under s.7(1)(b) does not require proof that there is a non- employment cause but rather requires proof of the negative that there is no material non-employment cause. It is perhaps unfortunate that Mr Neilson did not provide further written submissions following the review but in a letter addressed to Mr King on 8 September 1999 which was submitted by Mr King at the review hearing, Mr Neilson noted that he had made submissions in relation to all factors under s.7. While the revised decision of the respondent which is issued on 1 July 1998 declined the appellant's application for cover under s.7 of the Act, the reason for that decision was stated to be the fact that she had had similar symptoms some 6 years previously so that the current position could not have arisen out of her employment. I do not consider that that confined the review officer to consider only the limited issue put forward initially by Mr Neilson at the review hearing. The decision clearly raises the whole spectrum of s.7 and I consider that it was quite open to the review officer to look at the application on the basis that all the criteria under s.7(1) had to be considered. The only medical evidence is that of Dr Howard who could not specify whether or not the appellant's occupation involved sufficient computer work to amount to a contributory cause. He was however satisfied that her then current employment was not the cause of her symptoms because they arose at an earlier stage when she was employed elsewhere. Dr Howard took the view that other factors such as housework could make a contribution to the appellant's condition as well as previous employment. In order to satisfy the criteria under s.7(1)(b) it is necessary to establish on the balance of probabilities "that the property or characteristic is not found to any material extent in the non-employment activities or environment of that person". I agree with Mr Barnett's submission that the onus therefore falls on the appellant to demonstrate that there is no material non-employment cause. Dr Howard was not able to provide a conclusive opinion of that issue but raised doubts that some non- employment activities may possibly be a factor. On an overall view of the evidence I find that the appellant has not satisfied the onus on her to establish on the balance of probabilities that her carpal tunnel syndrome arose out of and in the course of her employment. 6 The appeal is dismissed. DATED at WELLINGTON this 4 th day of October 1999 A W Middleton District Court Judge dca6699.doc(rd)