Brown v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH WELLINGTON REGISTRY Decision No. los /2009 Al 219/08 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN MRS RAEWYN ROSE BROWN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 31 March 2009 DATE OF THIS DECISION 8 June 2009 APPEARANCES Mr I Brown for appellant Mr H A Evans, counsel for ACC DECISION OF JUDGE P F BARBER The Issue [1] Was the Canterbury District Health Board (CDHB), an accredited employer, correct in its 9 October 2007 decision declining to consider the appellant's claim for an elbow injury. Background [2] Mrs Brown (nee Coles), the Appellant, is a registered nurse employed full-time with CDHB. In December 2006, she lodged a claim for cover for bilateral elbow pain. This was first diagnosed as lateral epicondylitis. The ARC 18 form, completed by her GP, Dr Thwaites, noted the original diagnosis as: 2 "pulled patient up from bed holding on to both hands - pain in elbows after shift..." Present Diagnosis - pulled patient up from bed holding on to both". [3] When asked to list any complications, Dr Thwaites noted: 'Still has a lot of pain in both lateral epicondyles with point tenderness and weakness on extension of both arms". [4] CDHB referred Mrs Brown to Dr Mark Floyd, a Specialist Occupational Physician, who met with her on 1 February 2007 and produced a comprehensive 12 page report on 9 February 2007. Under the heading of "History" he noted: "Ms Coles, who is right hand dominant, presents with bilateral elbow and forearm complaint. Ms Coles advised that she first ever had difficulty with her elbows of acute onset on 3 November 2006. She reports that she had never had any difficulty with her elbows prior to this and could not recall any trauma to the elbows in her past history. Ms Coles described a specific event on that date where she was assisting a patient who pulled on both of her hands and that she felt something pull in the extensor surface of her forearms around the elbow. She advised she didn't think too much about it and continued on working. The rest of her shift was a further five hours and she described undertaking normal duties and noticed that she was uncomfortable in the forearm when assisting patients into bed. She described that she took Codeine and anti-inflammatory after that shift. Ms Coles attended the doctor on 13 December and by that stage, was having difficulty with her forearm/elbow region with pushing, lifting, folding washing, typing emails and gripping actions where she described a stabbing type pain." [5] Dr Floyd goes on to note that the Appellant was subsequently off work for a period of two weeks, and she had steroid injections to both lateral epicondyles. Dr Floyd noted under the heading of "Past Medical History" on page 4: "Ms Coles has a history of bilateral wrist complaint. She described that in November 2005, she was helping a registrar relocate a hip, that she was having to push down firmly on the hip and that she developed pain into her wrists at that time. ... Opinion: Diagnosis With regards Ms Coles' bilateral elbow complaint from the history she has . .. . . . provided, further information from her General Practitioner and my examination findings today, I am of the opinion that Ms Coles' elbow complaint is best explained by regional pain syndrome. With regard to the diagnosis of epicondylitis, her history today is not in keeping with a special lateral epicondylitis, with more of a widespread regional pain presentation. Ms Coles has had standard lateral epicondylar steroid injection with no benefit 3 whatsoever. While her symptoms do localise to the lateral elbow, they are more diffuse and are of the nature of a regional pain syndrome than a true lateral epicondylitis. (emphasis added) With regard Ms Coles' wrist complaint, I also believe that this is primarily a regional pain syndrome with some relative wrist dysfunction and ulnar minus. . Today I could detect no specific localised injury that would account for her presentation of symptoms and note that review with two upper limb specialists has reached similar conclusions of lack of localised injury to account for her ongoing symptoms. With regard your specific questions: Is it likely that a specific accident or work-related activity caused a personal (physical) injury (as differentiated from triggering symptoms from an underlying condition) in this case? (a) If so, what was the accident or work-related activity and what physical injury did it cause (i.e. please explain the likely biomechanical cause and effect)? With regard Ms Coles' elbow complaint for which the recent claim was lodged, she does describe a specific event where a patient was pulling on her hands as she was trying to assist her. I advised Ms Coles that while it is possible that such an action could cause a minor strain, that such an action would not typically cause a severe bilateral lateral epicondylitis and from the perspective of traumatic injury as a cause, would not be considered a major trauma which would be confirmed by the delay in seeking assessment and that there was no note of the event by Mr Penny when seen soon after. I advised Ms Coles that while it is impossible to exclude that there was a lateral epicondylitis from the acute strain event, considering her symptoms and history, it is more probable that her symptoms were that of regional pain as opposed to localised injury. (emphasis added) With this regard to her bilateral wrist complaint, this was clearly pre-existing the events in November 2005 when she was assisting with a hip relocation. believe at that time, what she experienced was an aggravation of her underlying regional pain and wrist dysfunction. Her presentation of aggravation of symptoms is more in keeping with such an aggravation as opposed to substantive injury at that point. Is any current disability/incapacity to work or function due entirely, or predominantly, to: (a) A specific accident (please specify): or (b) Work-related gradual process injury (specify cause and effect); or".. . . .. (c) Degenerative change; or (d) Some other underlying rheumatological disorder (specify); or a () Chronic pain syndrome (Specify whether primary or secondary) What is the likely cause of the original personal injury? (On what basis do you believe this to be the likely cause?) (ifi) Did the original personal injury ever resolve, or have symptoms that remain unchanged (or remained) become more diffuse? Non-accident related medical problems - e.g. cancer, neurological disorder thyroid disease, peripheral vascular disease etc (specify) or (f) Non-accident related psychosocial problems (specify) or (g) Some other non-accident, non-work related problem (specify) If multiple factors are involved could you please quantify (in a %) the relative impact of the factor(s) with regard to the claimant's incapacity to work. Were any of these factors likely pre-existing? As outlined above, Ms Coles does report a specific event with regard to the onset of her bilateral elbow complaint. However as outlined, the event would not be considered a major trauma and her symptoms and presentation are more in keeping with a regional pain syndrome as opposed to a localised specific injury. As will be discussed below, the cause of regional pain syndrome is not fully understood and while it may be intuitive to attribute the onset to the specific accident the reality is that there is little in the way of hard scientific evidence to suggest such minor trauma can be the cause of pain syndrome. (emphasis added) With regard the question of work related gradual process injury, Ms Coles does not report a history in keeping with a gradual process onset. As discussed below, the cause of pain syndrome is not fully understood and work by gradual process is not known to cause a regional pain syndrome. With regard to degenerative change, I could not identify any substantive underlying degenerate change to account for her condition. With regard her pain syndrome, pain syndromes are conditions that are not fully understood. Exact causation remains unclear. It is believed to represent central sensitisation, with neural modulation. The condition, as such, does not represent a local physical injury from the pathological perspective, with no clear evidence of significant structural physical changes. The cause of pain syndrome is not fully understood. There are associations with chronic pain in other regions, previous history of depression and anxiety, strong psychosocial stressors, irritable bladder and bladder syndrome. Pain syndrome can arise from major trauma. The question of whether minor trauma can initiate a pain syndrome lacks any strong evidence. Reviewing Ms Coles' reported history of accident and trauma, this is not in keeping with a major traumatic event and ! would consider her pain syndrome a primary 'pain syndrome as opposed to i. . . .. . ... secondary to major injury. (emphasis added) Management I believe Ms Coles would benefit from attendance at a pain clinic. The diagnosis of pain syndrome that she had been offered, I believe, Ms Coles will 5 have further questions about. She is an intelligent lady, trained in health sciences, and I believe would be receptive to some of the more detailed explanations of pain and pain mechanisms. I believe she would benefit from a multi-disciplinary input to address issues with regard to fear and apprehension. I believe Ms Coles would benefit from a graduated return to activity. Clearly she is very frustrated being away from work and now has been away from work for over one month. Considering her conditions with her elbows and wrists, / believe it prudent to graduate her return rather than return to full hours. On initial return, I would suggest she seeks assistance with the heavier activities and remaining on night shift where generally things are quieter. I believe that she will continue to derive benefit from the low dose Amitriptyline and this could be increased up to higher doses up to 50 mg as tolerated. I have encouraged Ms Coles to maintain her cardiovascular fitness. I discussed with Ms Coles, the importance of managing any significant stressors as this is known to aggravate regional pain syndrome. Clearly she has a lot of significant life events at the moment and the added frustration of her pain complaint. I believe it is important that if he does start to report significant symptoms of stress, that she address these early and look to counselling support. Ms Coles presented as a pleasant and intelligent lady who, I believe, with appropriate input from the Pain Clinic, will have a greater understanding of her condition and management strategies. With regard to her ability to continue in her work in the future, I believe that, in the first instance, we should look to return her to her normal work. I believe, for the foreseeable future, she will continue to retain a susceptibility to wrist and elbow pain that may be aggravated by activity at work. I believe with improved understanding of her condition and self management programme that she will manager her work well, however, if in the near future after institution of this programme she continues to have difficulty, vocational guidance with regard to nursing roles less manually intensitive that ward nursing may be of benefit." [6] By letter of 4 April 2007, CDHB declined cover on the grounds that the Appellant suffered from a pain syndrome, and that the pain was not based upon a physical injury. [7] Dr Joe Brownlee - Musculoskeletal Medicine provided a report of 3 May 2007 to Dr Joanna Thwaites (the appellant's GP) and noted "Raewyn has requested that I write to you to explain my diagnosis of the pain in her right elbow. On questioning Raewyn as to the cause of the problem she explained that while lifting a patient who resisted her movements she felt a pain in the back of her shoulders. This occurred in November, 2006 and did not settle for quite some time. During this time she developed pain in both her left and right elbows. . The pain in her left elbow subsided but that in her right continued and with a further consultations she was diagnosed as having tennis elbow. 6 The story does not really fit a normal tennis elbow but does fit the occurrence of this condition following a referred pain pattern from other muscles. In Raewyn's case this muscle was the infraspinatus on the right side which was causing a marked restriction of external rotation of the shoulder. This dysfunction causes a definite pain distribution over the area of the extensor tendons This may be accepted as a normal state of progression but in my. experience it does occur. ...' [8] On 21 August 2007, Mrs Brown lodged another claim for a bilateral sprain of the elbow joints. The claim form attributed the condition to an incident in November 2006 when Mrs Brown was helping a patient get out of bed. By letter of 9 October 2007, the CDHB declined the claim on the basis that it was a new diagnosis for a condition that stemmed from a condition which CDHB had already considered [9] Mrs Brown challenged the CDHB's initial decision of 4 April 2007 and this went to a review hearing of 31 October 2007. The issue was whether the insurer/employer had correctly declined Mrs Brown's claim for cover for personal injury caused by a work-related gradual process. By a decision of 26 November 2007, Mr Greene, the Reviewer concluded: "Wellnz Limited properly investigated Ms Brown's claim. It obtained specialist evidence from an occupational medicine specialist. That evidence, together with further medical evidence by Dr Brownlee and Or Craig, does not support a finding of personal injury for accident compensation purposes. Wellnz Limited therefore correctly declined Ms Brown's claim for cover.' [10] Following a mediation, the CDHB and the Appellant agreed to investigate Mrs Brown's claim further by referring her to another occupational specialist. A referral was made to Dr Strack, a Specialist Occupational Physician. He met and examined Mrs Brown on 6 March 2008 and prepared a detailed 13 page report dated 2 April 2008 for CDHB in which he noted that her current symptoms were: "... pain in the right forearm, which is constant. The upper limbs can feel tight or achy on occasion. This sensation may extend down the back of the arms into the back of the forearms. It is worse with every day activities, such as driving, lifting, making beds etc. It is better with stretching. Ms Brown experiences occasional sharp stabbing pain in the right scapular region. This comes on for no apparent reason. It is improved with local pressure to the area. . . . Opinion I believe that diagnoses appropriate to Ms Brown include: Chronic regional pain syndrome primarily affecting the upper limbs and shoulder girdle regions. - I base this diagnosis on the rather widespread bilateral pain symptomatology Ms Brown experiences in conjunction with 7 multiple fibromyalgia type tender points, and no clear localise musculoskeletal pathology that I can identify to account for these symptoms. I note that there is quite a long history of bilateral wrist discomfort. I can identify_no evidence of significant cervical or thoracic_spine pathology. - I" am not of the opinion that Ms Brown's current problems relate to specific cervical or thoracic spine pathology. The current clinical findings_do not support_a_diagnosis of lateral epicondylitis. There are some clinical findings at least suggestive of a possible degree of right shoulder impingement syndrome. - It is difficult to evaluate these findings in the presence or more widespread pain and tenderness. These findings may be part of the overall chronic regional pain dysfunction problem. Should specific shoulder related symptoms persist or worsen, then further investigation may be indicated in relation to this. I do not believe that Ms Brown's recent symptoms are accounted for on the basis of a shoulder problem. Should symptoms persist, particularly if clinical findings suggestive of a right shoulder problem persist, then it may be worth considering further investigation of this. I do not believe that investigation of this is indicated at this stage, as I believe that management should focus on Ms Brown's chronic regional pain dysfunction. There is no evidence of significant psychosocial factors contributing to Ms Brown's problems at this stage. - There is no evidence of depression or distress contributing to her current difficulties. In Response to Your More Specific Questions I have previously discussed the medical complaints, relevant medical, work and other activities history, as well as the current findings. . As discussed above, / believe that the primary diagnosis in relation to Ms Brown's case is that of a chronic regional pain syndrome. You ask regarding functional limitations. - At this stage, I would not wish to place specific restrictions on Ms Brown in relation to her bilateral upper limb pain, discomfort symptomatology. I believe that management should focus on return to as near as normal activities as possible, rather than placing restrictions on her which may, in the long term, prove to have a significant negative impact on her overall rehabilitation and well being. I am not of the opinion that Ms Brown's recent problems are as a result of a specific accident. Although there is a history of an onset of symptoms whilst lifting a patient in or about November 2007, I believe it is important to note that at that time, Ms Brown was also experiencing bilateral wrist type problems for which she had sought Orthopaedic opinion, both from Mr Mohammed and Mr lan Penny. Ms Brown saw Mr lan Penny in November 2006. This was at about the time that she began to experience some elbow pain. Overall, I am not of the opinion that a specific accident or incident (lifting a patient) has caused a specific musculoskeletal injury here. I am not of the opinion that the 8 incident described has caused bilateral lateral epicondylitis, nor am I of the opinion that is has caused a specific cervical or thoracic spine pathology or a specific injury to the shoulders. (emphasis added) I am not of the opinion that Ms Brown's recent problems are what might be terms a 'work related gradual process type injury'. I am not of the opinion that . . . her chronic regional pain syndrome is related to a work related activity having caused a personal injury. I believe that any recent or current disability/incapacity to work or function is likely to have been as a direct result of Ms Brown's chronic regional pain dysfunction problems (chronic regional pain syndrome). As discussed above, I would not wish to place specific restrictions on her in relation to this. I am not of the opinion that her chronic regional pain syndrome is a result of a specific accident, work related gradual process injury, degenerative change, or underlying rheumatological disorder. As discussed above, I believe that the primary diagnosis in Ms Brown's case is that of a chronic regional pain syndrome. You ask regarding whether this is a primary or a secondary chronic pain syndrome. - Firstly, I believe it is important to note that this distinction is of dubious merit. The exact underlying aetiology with respect to chronic pain dysfunction problems, such as those experienced by Ms Brown, is imperfectly understood. Such problems bear little or no relationship to physical injury, and whilst an injury or painful condition may trigger the onset of symptoms, whether it can be said to be a cause of chronic pain syndrome is a matter of considerable debate. Despite the above discussion, however, I can identify no evidence of a specific injury having lead to Ms Brown's recent bilateral upper limb pain symptomatology. It might, therefore, be seen as a primary chronic regional pain syndrome. (emphasis added) I am not able to discuss the 'likely cause' of any original personal injury as I am not of the opinion that Ms Brown's current problems relate to an injury sustained in or about November 2006. I am not of the opinion that there are significant non accident related medical problems likely to be contributing to her current difficulties. I believe that her chronic pain syndrome is probably best seen as a non accident, non-work related problem. There is no evidence of non accident related psychosocial problems contributing to her current difficulties that I have been able to identify. As discussed above, I am not of the opinion that Ms Brown's current problems are a work related gradual process type injury. There is no evidence to suggest that individuals working in her type of employment would be at greater risk of developing a chronic regional pain syndrome than those not working in that type of environment. There is no evidence of non work activities likely to have contributed to her current difficulties either. It should be noted, however, that . the absence of non work activities contributing to a problem does not necessarily imply that it is a work related problem. Many conditions (chronic regional pain dysfunction problems included) can occur in the absence of any specific work related activity or injury. 9 I am not of the opinion that Ms Brown's current difficulties are related to non physical stress. Chronic pain dysfunction problems can be affected by non physical stress, but I did not obtain a history of significant stress, distress, or depression likely to have been contributing to Ms Brown's recent problems. I do note discussion in Dr Brownlee's letters about his thoughts on the possible . . . ... cause of Ms Brown's recent difficulties. I am not in agreement with his reasoning for several reasons:- Pain experienced by patients with chronic regional pain dysfunction is generally not considered to be related to a specific musculoskeletal pathology or injury. Emphasis on possible musculoskeletal pathology does not generally have a significant benefit in management of chronic pain. Dr Brownlee comments in his letter of 27 June 2007 "In my experience if you treat someone the pain goes away, it is a reasonable indication that the area which has been treated is responsible for the cause". Dr Brownlee uses this explanation to support his contention that Ms Brown's upper limb problems relate more to her thoracic spine or trigger points in the infra spinatus region. I believe it is, however, of note that Dr Brownlee also states in his letter of 23 April 2007 "On examination she showed tenderness over the lateral epicondyle and at the insertion of the extensor tendons, and she also showed a restricted movement of her wrist". He further comments "Both the wrists and the extensor tendon responded well to post isometric relaxation exercises and the pain in her elbow has subsided to a large extent". Using Dr. Brownlee's argument, it could well be surmised that his comments of 23 April 2007 would suggest that Ms Brown's problems relate to her elbows and wrists. In other words, treatment of these regions has allowed her symptoms to subside to a large extent. I do not believe his argument holds up to any logical scrutiny. Unfortunately, in patients who develop chronic regional pain dysfunctions, there can be widespread pain and tenderness. Localized management options may often show a limited improvement in symptoms, that are not necessarily diagnostic, or curative. ...' [11] By letter of 7 April 2008, the CDHB confirmed its earlier decision on the basis that: "Dr Strack is also of the opinion that your pain symptoms are not related to any specific accident or work related gradual process injury." Review Hearing [12] A review hearing took place on 1 May 2008. There was no appearance (nor evidence or submissions) either by Mrs Brown or on her behalf, In a decision of 28 May 2003 the Review Officer concluded: "I am persuaded by the medical evidence that Mrs Brown's condition is not a personal injury as defined under the Act. I therefore dismiss her claim, which is unsuccessful." The Reviewer was considering CDHB's 9 October 2007 decision declining to consider a claim for injury to the appellant's elbows. Mr Brown emphasised that the appellant could not be at the review hearing because she was endeavouring to see Professor Shipton a pain specialist, and the Reviewer was advised of this. 10 The Law [13] The provisions of the 2001 Act apply and in particular, ss.26 and 30. The relevant part of s.26 provides: "26 Personal injury .. .. . (1) Personal injury means - (a) the death of a person; or b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person; or (d) mental injury suffered by a person in the circumstances described in section 21; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body. (2) . Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2) (e) to (h). (3) Personal injury does not include a cardio-vascular or cerebro- vascular episode unless it is personal injury of a kind described in section 20(2)(i) or (). (4) Personal injury does not include - (a) personal injury caused wholly or substantially by the ageing process; or b) personal injury to teeth or dentures caused by the natural use of those teeth or dentures. (5) For the purposes of subsection (1)(e) and to avoid doubt, prostheses does not include hearing aids, spectacles, or contact lenses." [14] Section 30 relates to personal injury caused by work-related gradual process, disease or infection. [15] This Court has confirmed on earlier occasions that pain of itself does not constitute a personal injury - Jones (242/02) and Teen (244/02). In Teen, the Court held: "The Act limits compensability to a physical injury which can be established as having been caused by a particular property or characteristic of a work task performed by the person. In the present case not only do I find that there is no evidence of personal injury within the meaning of the Act, but also there is no evidence to suggest that the Appellant's condition was caused by any property or characteristic of her employment tasks." 11 The Type-Written Submissions for the Appellant [16] Mr Brown's submits that Dr Thwaites' diagnosis was wrong and he relies upon the 3 May 2007 letter of Dr Brownlee. Criticism is made of the reports of Drs Floyd and Strack. [17] Mr Brown submits that the injury suffered by the Appellant is not one of gradual process, covered by Section 30 of the Act, but rather a work-related injury covered by Section 28 of the Act. Then later, he contends that: The injury resulted from a discrete incident that resulted in an injury being suffered on 3 November 2006. [18] The appellant still works as a nurse at Christchurch Public Hospital. At the time of the accident of 3 November 2006 she assisted a patient leave the bed but the patient was quite overweight and pulled on the appellant's arms to raise herself from the bed without warning. As a result of the patient pulling on her arms, the appellant began to feel pain in her elbows towards the end of her shift. She had not previously suffered elbow pain nor any injuries to her elbows. [19] On 11 December 2006 the appellant's GP (Dr Thwaites) made a presumptive diagnosis that the appellant had suffered a bilateral epicondolitis which is a repetitive strain injury resulting from a gradual process. Mr Brown submits that the diagnosis was incorrect because the appellant can pinpoint the date on which the injury was suffered; there had been no previous symptoms to show a gradual process injury; the pain to the appellant was immediate; and Dr Thwaites had not enquired as to other potential sources of the pain. [20] Accordingly, Mr Brown submits that Dr Thwaites' rediagnosis of 10 December 2007 should be accepted by this Court. He put it that submission is assisted by the 3 May 2007 letter of Dr Brownlee who noted that, at the time of injury, the appellant had felt a pain in the back of her shoulders and considered that the incident did not fit a normal diagnosis of tennis elbow but did fit the occurrence of the condition following a referred pain pattern from other muscles called myofascal pain, which always stems from an injured site. Dr Brownlee goes on to note that the muscle concerned was the infraspinatus on the right side, which was causing a marked restriction of external rotation of the shoulder and he noted "this dysfunction causes a definite pain distribution over the area of the extensor tendons". The extensor tendons travel up a person's arm from the wrist to the elbow and into the shoulder. [21] Mr Brown submits that Dr Brownlee's diagnosis is correct and explains the issues from the occupational physicians that the pain in the arms of the appellant was of greater coverage and of a more generalised nature than normal for tennis elbow, was not localised in the elbow, but was felt both above and below it as well as restricting movement of the arm itself. [22] Mr Brown put it that the injury has been addressed as a gradual process claim caused from tennis elbow but the appellant has never made such a claim and has always put it that the injury resulted from a discrete incident of injury on 3 November 2006. Even on the gradual process questionnaire sent to her by the employer, she stated that she considered the cause of the injury was "initial sprain injury from patient pulling on arms when getting out of bed. Occurred doing night shift on ward 16". She also clearly answered that the particular work task she believed to have caused her condition was "assisting a patient out of bed then turning and moving patients over coming weeks aggravated initial injury". 12 [23] The appellant responded to another question that she had been doing that type of work which she believed had caused her condition, for four and a half years. [24] Mr Brown submits that the employer and insurer have misunderstood the appellant's claim. He puts it that Dr Floyd's view seems to be that because there was no obvious injury to the appellant's elbows, there was no injury for the purposes of the Act and the appellant has been suffering from regional pain syndrome; but that must be incorrect and all possible causes of the pain have not been considered. It is put that referred pain from an injury in another part of the body is the cause of the appellant's pain. [25] Mr Brown commented on the various medical reports but seemed in agreement with that of Dr Brownlee 27 June 2007 who noted "on examination she showed a dysfunction of her thoracic spine as well as tenderness over the trigger points in infraspinatus". In a follow up letter of 24 June 2008 Mr Brownlee stated that "pain in the arm can be caused by a trigger point in a muscle in the shoulder blade. To understand all this a wide knowledge of anatomy and neurophysiology is required .." [26] Mr Brown also noted, inter alia, Dr Strack, an occupational physician, referring to the appellant as experiencing spinal pain but that with slight pressure to the interscapular region the pain decreases; and that she was experiencing pain in both shoulder girdles with heavy work such as helping patients or making beds. However, Dr Strack states that he cannot identify specific injury regarding the appellant's bilateral upper limb pain symptomatology; and he adds "I am not of the opinion that Mrs Brown's problems are a work related gradual process injury"; and criticises Dr Brownlee's report. [27] Mr Brown seemed to be submitting that the appellant's pain stemmed from a neck sprain from the incident of 3 November 2006 which is a condition to be covered as an injury under the 2001 Act. He submitted that proper facts were not put before the Reviewer. [28] In final written submissions, Mr Brown submitted that there is agreement that the appellant has not had tennis elbow (i.e. lateral epicondylitis). He refers to Dr Floyd ruling out gradual process injury but to the facts fitting a referred pain pattern from other muscles. He refers to Dr Strack (much later) opining that the appellant's problems were not a work-related gradual process type injury [29] Essentially, Mr Brown submits that the appellant did not suffer from a gradual process and that there was an injury site at 2.00 am on 3 November 2006. He submits that the appellant suffered an injury and still experiences pain from it and that it is incorrect that she only suffers pain for some unknown reason. The Type-Written Submissions for ACC [30] ACC's position is that while the Appellant has a pain syndrome, in the absence of any personal injury, the CDHB was correct to decline to provide cover; and that the cases of Teen (supra) and Jones (supra) are relevant and provide confirmation that, in the absence of a covered injury, a pain syndrome of itself does not provide a basis for cover to be granted. 13 [31] Mr Evans note that s.28 relates to work related personal injury and, while it includes a personal injury caused by a work related gradual process, disease, or infection, there is still a requirement for a personal injury to have been suffered. [32] Mr Evans also notes that both Drs Floyd and Strack are clearly of the view that Mrs Brown has a chronic regional pain syndrome primarily affecting her upper limbs and shoulder girdle regions; and that Dr Strack assesses Dr Brownlee's report and states why he considered it to be in error. [33] Mr Evans emphasises that there are no other competing medical assessments which support the Appellant's position; that both Drs Floyd and Strack are experienced occupational medicine specialists who have both independently arrived at the same view that Mrs Brown suffers from a pain syndrome unrelated to the incident involving the patient in November 2006. Mr Evans stresses that there is no evidence of a physical injury which is required by the Act for cover. Evidence from the Appellant to this Court [34] I was pleased to ascertain from the appellant that her pain has now healed as a result of her undertaking manipulation treatment from a chiropractor followed by massage therapy. (35] The appellant described how the injury occurred to her at 2.00 am on 3 November 2006. She had given her hands to an obese patient to help that patient out of bed. However, the patient pulled back in a jerky manner and the appellant felt immediate pain in her shoulders and elbows but carried on working the shift having taken some anti-inflammatory tablets. [36] She now feels the problem was that she self-treated that problem with codeine and anti-inflammatory medication and did not go to her GP for four or five weeks from the incident. She said there was no wrist pain at any stage but, even after five weeks, she was still tender in both elbows and shoulders so that the GP treated her for tennis elbow. She said that before this injury incident she was in good health and had not had "this sort of trouble". She said that when she was very young she had a bilateral wrist injury from falling out of a tree and breaking both arms and that had flared up over the years from time to time. [37] She said that because of the injury she had taken much leave without pay and incurred medical costs. [38] The appellant was carefully cross examined by Mr Evans about her pain and treatment since 3 December 2006 and about a 1999 injury to her wrists [39] Naturally, as an experienced nurse, the appellant had views about her condition and its history and, in particular, she would not accept that she had a chronic regional pain syndrome. Of course, she may be very wrong in those views. It was put to her that Drs Floyd and Strack, as occupational medical experts, both say there is no sign of injury from the hospital incident and that she has regional pain syndrome. The appellant responded that their focus seemed narrow and they had not checked her spine, nor considered the possibility of referred pain, and in general had not considered properly or fully her overall position; and she relied on the 3 May 2007 views of Dr Brownlee. She emphasised that, when she suffered the injury at the hospital, her wrists had not troubled her in any way and the injury did not affect her 14 wrists but was from her forearm upwards. She insisted that any prior wrist pain was absolutely unconnected to the hospital event. She also suggested that Dr Strack's examination of her was extremely quick, although she accepted his experience and that he is a specialist in the field of occupational medicine. She said that her chiropractor Dr Craig, and Dr Brownlee had healed her. [40] Simply put, she asserts that the 3 November 2006 hospital injury was an injury event at her work to her elbows and upwards and resulted in a strain to her elbows and spine and from the shoulders downwards; but she acknowledges that Drs Strack and Floyd do not see it that way. [41] From my nearly 28 years experience as a District Court Judge, I assessed the appellant as a credible and impressive witness. She seemed thoroughly honest , and I understood that Mr Evans saw her in that light also. Of course, her evidence needs to be tested in the context of the total evidence and against known facts and medical opinion and for its inherent probability and consistency. The Oral (and final) Submissions [42] Some further aspects arose from final oral submissions. [43] Mr Evans noted that ACC accepts that the appellant suffered pain at material times but put it that the issue is the cause of that pain. I agree. He submitted that there had been no discrete injury but only a regional pain syndrome. Essentially, ACC seemed to be submitting that there had been a minor accident as described on 3 December 2006 which could not be described as a personal injury and could not have led to any type of pain syndrome. Mr Evans referred to Drs Floyd and Strack as very experienced and to his expecting their views to prevail over the opinion of a chiropractor (Mr Craig). As their opinions are based on experience and expertise and should be accepted. [44] Mr Evans clearly put it that he accepts that the appellant is honest but that her self analysis should not prevail even though she is a qualified nurse. I agree. [45] He referred to their being a clear history of a wrist pain condition prior to 3 November 2006 which had led her to see a specialist in 1999 about pain in both her wrists and there were underlying symptoms which could lead to regional pain syndrome. Mr Evans noted that Drs Floyd and Strack turned their minds to the aspect of a cervical spine issue and rejected that. Reasons for Decision [46] I am very reluctant to query the views of two specialists, especially those positive opinions of Drs Floyd and Strack. I realise that the opinion of Dr Brownlee is fairly succinct. However, I have the advantage of having assessed the appellant as an honest and sensible witness. Indeed, I felt Mr Evans may have also so concluded. Of course, I accept that a pain syndrome of itself does not provide a basis for cover. There must be an injury event and consequential incapacity related to that physical injury. [47] It seems to me unreal to be dismissive of the appellant's pain condition because the injury accident can be interpreted as minor. There was an injury event at 2.00 am on 3 November 2006 and it is understandable that such an event injured the 15 appellant's elbow regions. To talk about a regional pain syndrome as seeming to come from nowhere and be unattached to any causation site seems curious to me Of course, pain can be referred from one site in the body to another, but it is drawing a long bow from the evidence to conclude that the appellant's elbow pain has simply arisen inexplicably or came from the appellant's wrists. The latter may be so, but the evidence is too vague for a conclusion about that on the balance of probabilities. [48] The medical experts emphasise that regional pain syndrome is not fully understood. Perhaps, that explains the confusing medical evidence in this case. [49] Inter alia, in his report of 9 February 2007 Mr Floyd seems to opine that, in November 2005, when the appellant was assisting at work with a hip relocation (as described above), she experienced an aggravation of her underlying regional pain and wrist dysfunction. He seems to consider that the incident of 3 November 2006 aggravated that further. I find that opinion a little fanciful. Maybe it is correct, but it seems guesswork to me despite Dr Floyd's vast skills and experience. [50] When I stand back and absorb the medical evidence referred to above, I conclude, on the balance of probabilities, that on 3 November 2006 the appellant suffered injury to her elbows (and maybe, shoulders and spine) as described above and is entitled to cover for that. Also, that injury had not healed as at 9 October 2007 nor by 6 March 2008. The employer and/or ACC were wrong to deny her cover. [51] This appeal is allowed so that the appellant achieves cover from 3 November 2006. I am not sure whether the role of Mr Brown entitles him to costs so that I reserve leave to apply regarding costs and any issues consequential to my decision. Judge P F Barber District Court Judge WELLINGTON 219-08.doc(aw)