Warmington v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 114/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MOLLY TUKI WARMINGTON of Te Puke Appellant (Appeal No. DCA 330/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 15th day of May 1997 APPEARANCES T C Montague for appellant Mrs S A Deadman for MidCentral Health Mr P A McBride 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 1992 Act in respect of a gradual process injury. The appellant lodged a claim with the respondent in September 1995 in which her general practitioner diagnosed that she had neck, shoulder and arm pain as a result of occupational overuse syndrome which the appellant attributed to lifting patients during the course of her employment as a psychopaedic nurse at the Kimberly Centre which is administered by MidCentral Health. 2 The respondent received a report from the appellant's general practitioner, Dr A W Hull, confirming the diagnosis and confirming that it was work related. On 28 November 1995 the respondent notified MidCentral Health that it had accepted that the appellant had suffered a work injury. MidCentral Health then applied for a review of that decision. Unfortunately through a mistake the appellant did not attend the review hearing. At the review hearing Mrs Deadman advised the review officer that the appellant had suffered neurological problems in 1990 which resulted in stiffness in her neck and a feeling of weakness, together with intermittent lower back pain, calf pain on walking and stiffness of the hips. Mrs Deadman also noted that in an assessment done by an independent occupational therapist in January 1996 the appellant had stated that she was anaemic, required treatment for blood pressure and had had a hysterectomy in 1995. The report also noted that amongst her recreational activities were sewing and gardening and that in particular she had noticed problems in her hand after cutting out a dress. The report also indicated that garden pruning had caused problems. Mrs Deadman also referred to some medical reports regarding the appellant's condition in 1990. In a report of 7 June 1990 Dr Smith had referred the appellant to the Neurology Clinic at Palmerston North Hospital. He said that she at that time "complained of approximately 6 months of a stiffness in the neck and a feeling of weakness as though she could not lift her head off the pillow at night time. She also had lower back pain intermittently and calf pain on walking with stiffness of the hips and a progressive weakness of the thighs" Dr Sebastian, as medical registrar to Dr Moore, a visiting physician at the Neurology Clinic, in a report dated 20 August 1990 stated: "Thank you for referring Mrs Warmington to the Neurology Outpatient Clinic whom I examined today. She gives me a bit different history to what you have written in your letter. She tells me that she has had low backache for the last two years which was not associated with a trauma as far as she can recall and it has been radiating to the - back of both legs and has been increasing in severity. For the last one year she has noticed pain in both of her lower legs with a swelling on her left achilles tendon. This pain has been severe enough to prevent her from walking and she tells me that the pain was her primary problem rather than a weakness in her leg muscles. Due to the pain she has difficulty in walking and getting up from a chair and she needed to keep her hands on her legs to get up from the sitting position due to the lower back pain. She has no other sensory symptoms on her legs. Today she has no other neurological symptoms. In the past history as you know she was health and not on any medication. 3 On examination today she was obese for her height and age and she was walking with a forward bend. She could stand straight and her pulse rate was 90 per minute, blood pressure 190/100, cardiovascular system examination was normal. On neurological examination cranial nerves were normal I could not demonstrate any weakness in any muscle groups in her limbs, there was no muscle tenderness or muscle wasting today. Her reflexes were normal and her sensations were also normal. On examination of her back she had no spinal deformity but she was tender at the junction of lumbosacral spine and she had painful forward bending and right lateral bending although the range of movement was full. Sacroiliac joints were normal and leg raising test was also negative. She had a tender cystic swelling on her left achilles tendon. I have noticed all the investigations you have done especially the lumbar spine x- ray which also (sic) normal. I feel that her problem is from the lumbosacral vertebrae like a spondylolisthesis or a prolapsed disc rather than a neuro-muscular disease however I have repeated a full blood count, ESR, liver function test, CPK, Serum protein and and (sic) protein electrophoresis, rheumatoid factor, a chest x-ray, serum calcium and phosphate and I will reassess her along with Dr Moore on 3 September along with these results. I will also try to get her lumbar spine x-ray from Horowhenua Hospital for a review and I will let you know about the outcome. She also has a cyst on the left achilles tendon, this may require an orthopaedic opinion which we will do on her next visit." In a subsequent report on 6 September 1990 Dr Moore stated: "I have reviewed this psychopaedic nurse in the Neurology Clinic on 3.9.90 following her examination and investigation by my Registrar on 20.8.90 and like Dr Sebastian I was unable to find any abnormal neurological signs. In a report of 9 April 1996 Dr Hull told the respondent that he "thought she had an occupational overuse syndrome with level 3 severity". A subsequent report from Dr Petrie at the Queen Elizabeth Hospital in Rotorua dated 12 September 1996 notes that: - " Certainly her symptoms were consistent with occupational overuse syndrome in that there is no evidence of any underlying joint disease; inflammation of damage. I have only her history to attribute this to her previous employment but I consider that her signs and symptoms are consistent with this." The review officer concluded that on the basis of the reports and the evidence given by Mrs Deadman that it was conceded by the employer that there were properties or characteristics in her work environment which could have contributed to the appellant's symptoms. She also found that the appellant had suffered similar symptoms in 1990 which were not then diagnosed as being work related. She held that as the appellant had had previous similar problems investigated by specialists 4 and there was no link between those symptoms and her work environment she had not satisfied the requirements of s.7(1)(b). She did not consider that there had been sufficient evidence of the risk of suffering that personal injury being significantly greater for persons performing that employment task in that environment than for persons who do not so that s.7(1)(c) was not satisfied. The appellant appealed against that decision. In support of her appeal the appellant provided a report from Mr Wigley, a consultant neurologist, who is familiar with the Kimberly Home and the work carried out there. His report of 8 April 1997 states: "Thank you for your letter of 04 April 1997 including a copy of the submission from Mid Central Health made at the Review Hearing and a written statement by Mrs Warmington and her hand written notes. I also have a copy of a letter from Dr John Almond. I have now received a copy of the report from Dr Petrie of September 1996. This latter report was evidently not made available at the Review Hearing. OCCUPATIONAL HISTORY She worked in the Telephone Exchange for the Post Office for eight years and then for a period with Woolworths and then changed to nursing and for a while worked in a hotel and then for another eight years as a switchboard operator. For the last 12 years she has worked at Kimberly. The type of work is detailed in her submission. The work that she was doing, caring for disabled, intellectually handicapped patients is well known to be heavy. Frequently patients had to be lifted into wheelchairs. When they were incontinent their beds had to be changed. There were large heavy laundry bags to be lifted onto tables four days a week and sorted out into pigeon holes, some of which were so high that she had to stand on two steps to reach the top level, being of rather short stature. These clothing items etc then had to be taken down for use. SYMPTOMS Her initial symptoms developed more than ten years ago rather gradually so she is unable to put a date to their onset. For a long time she attempted to ignore these and pressed on working just the same. It was not until 18 months ago that she was unable to continue. She first noted pain in the neck extending down across the shoulders and subsequently as far as the elbows with discomfort and twitching and numbness in the hands, particularly at night. The numbness was of diffuse type affecting the forearm as well as the hand. She also had aching in the back and swelling and pain in the right Achilles tendon. She now has considerable rest pain and night pain, most marked in the centre of the low back area. When she is standing she gets pain the Achilles tendon area or if she attempts to exercise by walking to reduce her weight this pain is increased. Any activity tends to produce swelling of her hands which goes down with rest. Morning stiffness is quite brief. She has some sleep disturbance and she is quite depressed and frustrated. She wept several times during the examination, particularly as this induced pain. At times she feels that she hurts all over. EXAMINATION She is short and over-weight but not particularly obese. She has some pain on neck movement but no limitation. She is able to get her shoulders right up and has a full range of joint movement. She can't quite touch her toes and this induces low back pain. She is acutely tender over the gluteal muscles, particularly on the right and this induces an apparent Lassegue test. She is able to fully extend the legs sitting so it is not a genuine indication of nerve root pressure. She has acutely tender points over the trapezii on both sides, the upper inner angles of the scapulae and the supraspinatus and also over the gluteus maximus on both sides. On the control point she can tolerate 2.5kgs but less than .5kgs at the tender points. Testing for these tender points caused considerable distress. The swelling on the Achilles tendon on the right about one to two inches above the insertion is quite pronounced and is tender. OPINION ON DIAGNOSIS Going back through the history she gives a typical description of overuse muscle pains arising out of repeated heavy work. These extended to the point now where she has generalised pain and sufficient tender points to indicate a diagnosis of fibromyalgia. Though not all cases of fibromyalgia are the result of overuse, in my experience about two thirds of cases of fibromyalgia start as a more localised overuse syndrome so that changing the diagnosis from overuse syndrome to fibromyalgia is more an indication of severity and extent of symptoms than a change in the nature of the complaint. There is abundant precedent for such cases being accepted by ACC. . She also has Achilles tendonitis which is an overuse problem. Concerning Section 7 of the Act (Personal injury caused by gradual process, disease or infection arising out of and in the course of employment). (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: 6 The heavy loads lifted repeatedly over the long period of time do constitute a particular property and characteristic of the work contributing to the symptoms. (b) The property or characteristic is not found to any any (sic) material extent in the non-employment activity or environment of that person: She was not indulging in similar activity in the home scene. She was living mostly in flats and in hospital accommodation and so had a minimum amount of domestic commitment and at that time no gardening to do. (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. I would answer this question in the affirmative. Concerning the points raised in the CHE submission: (a) Mrs Warmington's inability to rest outside work. This statement is not very explicit and does not seem to be particularly relevant to the case in point. (b) Her obesity. Her obesity is not severe. Some people who are obese have to reach out further to do a normal job than people who are not obese. This puts greater leverage on shoulders and back. This may apply to a minor degree in her case but in my opinion this does not in any way reduce ACC's responsibility, since pre-existing conditions, on the Eggshell skull principle, have to be accepted even if there is merely aggravation of pre- existing symptoms which is not so in her case. ( c ) Gynaecological problems. She no longer has menopausal symptoms so that does not apply as her other symptoms continue. Though it was suggested that her back pain may be gynaecological and that she should have hysterectomy, the hysterectomy did not improve her symptoms so this is not relevant. 7 (d) Hypertension. She is on treatment for blood pressure but I don't think this has any relevance to her claim on ACC. (e) Tendency to excessive outside activity dressmaking, vacuuming. She points out that she has a very small house and the housework takes very short time. Her dressmaking was a quite minor operation once only. Concerning her gardening, she has a small garden and the pruning in question would only have taken an hour or so and so it does not really significantly contribute. In any case, it is irrelevant since the pruning was done after she went off with symptoms, having had quite severe symptoms for as long as ten years. The risk of suffering a back injury in Mrs Warmington's employment is greater for persons performing her type of work than for people who do not. I disagree that the type of work that she was doing could not produce diffuse symptoms type overuse syndrome. I do accept that it can explain the back pain which she undoubtedly has." In addition the appellant gave evidence at the appeal hearing in which she stated that she had worked full time at the Kimberly Centre for 12 years as a psychopaedic nurse. That work involved care of disabled and intellectually handicapped patients. She said that suggestions were made at the review hearing about her non- employment activities. She stated that when the occupational therapist's assessment was made in January 1996, the appellant had already moved from Levin to live in Te Puke. She said that the answers she gave in relation to the dressmaking and gardening related to activities which had occurred in Te Puke and not while she was employed at the Kimberly Centre. Moreover, she said that as she had only made one dress and had only pruned one small tree, these issues were insignificant. The appellant said that for 7 years she had been boarding privately or living at the Horowhenua Nurses Hospital. In both these places she was not involved in any sewing, gardening or pruning and the only housework she did was making her bed. Mr'Montague submitted: 1. That the work at the Kimberly Centre for 12 years involved the caring for disabled and intellectually handicapped patients which involved a certain amount of heavy lifting. 2. That as no issue is taken with the criteria in respect of s.7(1)(a), it is necessary to turn to the provisions of s.7(1)(b). That, in relation to that issue, the matters which the review officer had taken into account were issues which had come about after the appellant had left the work environment and that during her 8 time as a psychopaedic nurse at Kimberly she had not been involved in any activities outside her work which could have been produced the symptoms. 3. That in relation to s.7(1)(c) the situation was similar to that of the appellant in Henare v ARCIC (1995) 1 BACK 138 where that appellant had been performing an arduous duty in a hospital laundry which exacerbated pre-existing osteoarthritis. He submitted that the heavy repetitive work and lack of equipment increased this appellant's workload which led to a greater risk in the appellant's working environment which would be significantly greater than persons performing her employment task than for persons not so employed. Mrs Deadman submitted that the injury was not work related and that for some time she had been concerned because the appellant had not been co-operating with her colleagues and was seen to be irritable. She considered that she had become outspoken and less co-operative and there appeared to be no reason for this. A work change had been tried, but again the appellant appeared to be lacking energy and motivation. She said that at no time had the question of an accident been mentioned to the employer. Mr McBride submitted: 1. That after the employer had notified its intention to review the respondent's original decision the earlier medical evidence of similar symptoms in 1990 came to light. 2. That the appellant did not attend the review hearing because of a mistake as to the time. 3. That the appellant did not take up the opportunity to provide submissions to the review officer after the hearing. At that time she was represented by an advocate who was not involved with this type of work. 4. That the medical evidence was equivocal, especially the report of Dr Petrie who was only prepared to go as far as saying that the condition being "consistent with occupational overuse syndrome". 5 . Dr Wigley's report is based on the quality of the information reported to him by - the appellant and cannot itself establish such an extent of non-work causes. 6. That the review officer accepts that s.7(1)(a) is satisfied. 7. That on the material before her the review officer considered that non-work factors had a part to play in her injury. In particular the reference to pruning. 8 . That in relation to s.7(1)(c) the review officer found that there was no evidence to satisfy the criteria under that section and that the only evidence now 9 available appeared to be that of Dr Wigley. That it appeared that Dr Wigley had not visited the environment. The issue falls to be decided under s.7 of the Act which 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." It is unfortunate that the appellant had not given evidence at the review hearing or when subsequently invited to do so as it may well have alleviated some of the problems which have occurred. However, I accept Mr Montague's submission that the appellant was being assisted by a friend who was not fully conversant with the requirements and it was not until the appellant engaged his services that it became possible to provide the correct material. The appellant had a history of 12 years of work in the Kimberly Centre as a psychopaedic nurse assisting disabled and intellectually handicapped patients. This involved a lot of heavy lifting of the patients which the appellant said caused the problems from which she now suffers. This would seem to be consistent with the problems which took her to seek medical advice in 1990, although at that time it was not diagnosed as occupational overuse syndrome. The evidence in relation to activities outside the work place establishes that the information upon which the review officer based her decision was incorrect and that the references to dress making, gardening and vacuuming only took place after the appellant had left the Kimberly Centre and moved to Te Puke. Those were answers given by her when the occupational assessment was made in 1996. It seems clear from the evidence that up until the time the appellant left the Kimberly Centre she was always living in either a boarding situation or as a resident in a nurses home in both of which areas she did not undertake any housework other than making of her bed. Consequently I consider that the review officer's finding in relation to the criteria under s.7(1)(b) was wrong having been founded on incorrect information. Now that I have the report of Dr Wigley, coupled with that of Mr Petrie, I consider that the appellant has satisfied the criteria of s.7(1)(c) and that the occupational in which she has been involved does create a significantly greater hazard for incurring 10 these problems than for persons who do not perform those particular tasks. Dr Wigley is an experienced consultant neurologist who is well aware of the nature of nursing work in general and the problems associated with lifting operations, particularly those who are incapacitated. I consider that his report does provide the necessary foundation for establishing the criteria under s.7(1)(c). As I mentioned to counsel at the conclusion of the hearing the factual situation of this appellant is very similar to that of the worker in the appeal by Southern Crown Health Enterprises Limited (148/96). The worker in that appeal was employed as an occupational therapy assistant which involved her in dealing with elderly and non- ambulatory patients who required lifting and moving in wheel chairs. That worker developed symptoms similar to those suffered by this appellant but her non-work activities were clouded by involvement in the writing of a history document and a quilt making course which it was alleged could have had an involvement in her symptoms. After a full investigation the Court held that the review officer was correct in finding that that appellant was entitled to cover under s.7. I consider that this appellant is also entitled to cover and the appeal is allowed. There will be costs of $800. If the respondent has not already done so it is also to meet the costs of Dr Wigley's report. DATED at WELLINGTON this b day of June 1997 umadubai A W Middleton District Court Judge dc330-96.doc(rd)