Naylor Love Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 13 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NAYLOR LOVE LIMITED and H W COYLE LIMITED Appellants (Appeal No. DCA 81/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND KEVIN WILLCOCKS Second Respondent 2 HEARD on the 25th day of November 1997 APPEARANCES Miss S L Knowles for Naylor Love Limited Mr R J McIlraith and Mr A M Lubbe for H W Coyle Limited Miss K Tahana for first respondent Mr K Willcocks in person DECISION OF JUDGE MJ BEATTIE There are two issues for determination in this appeal: 1. Whether the second respondent's injury of bilateral carpal tunnel syndrome constitutes a work injury caused by gradual process within the meaning of s.7 of the Act: and if so 2. The extent to which the claim costs should be apportioned between the two appellants pursuant to s.7(7) of the Act. Background Facts The second respondent Mr Willcocks is a plumber by trade and on 9 August 1996, then aged 32 years, he lodged a claim with the Corporation in respect of an injury diagnosed as bilateral carpal tunnel syndrome. The claim form describes the cause of the injury as "repetitive plumbing work, well work on the casino project, i.e. repetitive hammering of 150 mm copper pipe" . 3 Dr Mark Clatworthy, an orthopaedic registrar at Auckland Hospital who examined Mr Willcocks, stated in a gradual process questionnaire that Mr Willcocks' injury was caused by "repetitive activities as a plumber". In a questionnaire Mr Willcocks indicated that the first recorded symptoms of the injury were in 1989. In the same questionnaire he gave details of his work history from that time down to the present which were subsequently shown to be inaccurate and his actual work history is as follows: (i) Naylor Love 30/1/90 - 3/8/90 7/11/90 -31/7/91 26/3/93 - 18/6/93 (ii) Plumbing World Limited 18/10/93 - 18/6/95 (ifi) HW Coyle Limited 26/6/95 - 8/3/96 Insofar as the employment with Plumbing World was concerned, it was accepted at the review hearing that Mr Willcocks worked only as a warehouse person and there was no suggestion that any employment task carried out there needed to be considered when determining the issues in this appeal. In response to the gradual process questionnaire both the appellant employers gave particulars whereby they contended that the nature of the work carried out by Mr Willcocks during his respective periods of employment with them were not such as to be repetitive or to be of a type which could have caused the CTS injury. Dr Graham Paterson, Corporation Branch Medical Advisor, in a questionnaire dated 26 September 1996 advised that Mr Willcocks' condition was caused by "repeated handling of materials in his work as a plumber". 4 Dr Ryan-Sheridan, Corporation Branch Medical Advisor, in a questionnaire dated 22 October 1996 considered that Mr Willcocks' employment as a plumber contributed to his condition and recommended acceptance as an OOS claim of bilateral carpal tunnel syndrome. After considering the foregoing information the Corporation made a decision determining that Mr Willcocks had suffered a gradual process injury arising out of his employment with respectively Naylor Love, Plumbing World and H W Coyle Limited. The apportionment of the claim was determined as being 39% to Naylor Love Limited, 44% to Plumbing World Limited and 17% to H W Coyle Limited. All three employers sought review of that decision. At the review hearing all employers made submissions and contended that there was insufficient evidence to determine that the criteria required under s.7 of the Act had been established. In his decision the Review Officer held that the available evidence disclosed that Mr Willcocks worked at various jobs where the employment tasks contained the property or characteristic which lead to the injury. The Review Officer relied on Mr Willcocks' evidence in establishing the repetitive nature of a considerable amount of work he undertook with the employers in question. The Review Officer found that Mr Willcocks had met the test under s.7 of the Act and the Corporation's decision was confirmed, save for the fact that Plumbing World was removed from the list of liable employers on the basis that Mr Willcocks had only worked as a warehouse man during his employment with them. Accordingly the new apportionment for the claims costs as fixed by the Review Officer was Naylor Love Limited 69%, H W Coyle Limited 31%. Relevant Statutory Provisions Section 7 of the Act states, inter alia: 5 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. (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. . . . (5) The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which - (a) The person first received treatment from a registered health professional for that personal injury as that personal injury; or (b) That personal injury first resulted in the incapacity of the affected person - whichever first occurs. ... (7) For the purposes of this Act, the employer of the person shall be the last employer whose employment exposed that person to the gradual process or the risk of the disease or infection; but where the person was employed by more than 1 employer in work involving that gradual process or that risk of disease or infection (as the case may be) the costs of the claim shall be divided between those employers in proportion to the periods of employment of the affected person with those employers." 6 Further Evidence For the purposes of this appeal the Court granted leave to the appellants to produce further evidence and evidence was received from two specialists in the field of occupational medicine, namely Dr Michael Anderson and Dr Christopher Walls. I am satisfied that each of these persons is sufficiently qualified and for the purposes of the evidence they gave, did so qualify themselves to be regarded as experts in occupational medicine. In addition to the expert opinion evidence, evidence was also received from Mr Carmichael, the manager of the plumbing division of Naylor Love Limited, himself a qualified craftsman plumber, and Mr Lyes, plumbing supervisor with H W Coyle Limited with 33 years experience in the plumbing industry as a qualified plumber. Mr Lyes and Mr Carmichael each gave detailed evidence of the nature of Mr Willcocks' work whilst in their respective employ and each contend that the nature of the work was not sufficiently repetitive in nature nor of a heavy or jarring nature. Each stated that in their wide experience in the plumbing industry they had never encountered another case of carpal tunnel syndrome being caused by the carrying out of normal plumbing work. Both the occupational medical specialists had access to all the information upon which the Corporation had based its decision and in addition it had the evidence from the review hearing and the written evidence of Mr Carmichael and Mr Lyes. Mr Walls gave evidence that carpal tunnel syndrome arises when the median nerve becomes compressed as it passes through the wrist. The concave floor and walls of the tunnel are formed by the carpal bones while a band of tissue called the flexor retinaculum forms a tough fibrous roof. As the nerve becomes compressed symptoms of pain, numbness and pins and needles are felt in the sensory 8 7 distribution of the nerve. He stated that the condition occurs most commonly in middle-age women. Dr Walls advised that the criteria employed by the National Institute of Occupational Safety and Health - USA that the following features and occupational tasks were contributory: 1. Work involving frequent and repetitive use of the same similar movement of the hand or wrist on the affected side; 2. Regular tasks requiring the generation of high forces by the hand on the affected side; 3. Regular or sustained tasks requiring awkward hand positions on the affected side; 4. Regular use of a vibrating handheld tool; 5. Frequent or prolonged pressure over the wrist or base of the palm of the affected side. Dr Walls referred to a recent study published in September 1997 in the Journal of Occupational and Environmental Medicine (Montreal) which gave the most clear direction as to what occupation and tasks are likely to show a greater incidence of CTS than that experienced by the general population. That study carried out in Montreal shows that the following occupational groups have a statistically significant increase in incidence above the general population. Graded from most to least risk they were as follows: Housekeeping occupations (cleaning) Work on a data processor Material handling occupations (packaging) 8 Food and beverage processing and servicing Childcare providers Transportation operators (lorry drivers) Plumbing or metalwork are not identified in the article as being statistically significantly associated with CTS. In Dr Walls' experience he has no knowledge of any other plumber suffering CTS either from his time in general practice or as an occupational medicine specialist. Dr Wall noted that Mr Willcocks suffered from bilateral CTS which he said made the likelihood of it being familial or genetic in origin rather than occupational. It was his experience that the great majority of occupationally induced CTS arises unilaterally in the dominant hand. It was Dr Walls' opinion that CTS is not an acute condition but arises over many years of exposure. For the condition to develop after short exposure would indicate a pre-existing condition or a familial tendency. In view of that Dr Walls said he would have difficulty in attributing the development of CTS after only 26 months of activity, even if Mr Willcocks had been involved for all that time in working with heavy copper material. He stated that if one accepted the employers' job sheets and descriptions of the work carried out by Mr Willcocks then he found it hard to accept that exposure to those type of work activities could be causative of his condition. Another feature stated by Dr Walls mitigating against there being any employment connection was the young age of Mr Willcocks and the fact that there was no long history of exposure. It was Dr Walls' conclusion that the duration of Mr Willcocks' employment with the appellant firms was too short and the type of work that he carried out made it unlikely for it to be responsible for the condition. The fact that his condition is 9 bilateral further argued against it being any specific task related activity. Finally, there was the fact that he could find no published reference to plumbers being at greater risk of this condition than the general community at large. Dr Anderson gave opinion evidence along the same lines as Dr Walls. He further stated that the work description during the time that Mr Willcocks was with Naylor Love does not meet the NIOSH requirements for CTS. The work at Naylor Love was described as having variety with no one task dominating the job description. It was Dr Anderson's opinion that whilst Mr Willcocks had nerve conduction studies that supported the diagnosis of CTS, there was no evidence that his work while employed by Naylor Love Limited contributed to his condition. Decision The provisions of s.7 of the Act require that for there to be cover under the Act for personal injury caused by gradual process there must be an employment task which has a particular property or characteristic which caused or contributed to that personal injury by gradual process. That is required to satisfy the criteria in s.7(1)(a). Having reviewed the Corporation's file and considered the evidence which was before the Review Officer I have come to the firm decision that evidence to establish the criteria of s.7(1)(a) was quite inadequate. The record shows that each employer took issue with that decision and yet the Corporation deemed it not necessary to make any further enquiries or seek any expert opinion. The evidence that was acted upon in the first instance and which was confirmed by the Review Officer on appeal consisted of a young orthopaedic registrar at Auckland Hospital giving an opinion that the bilateral carpal tunnel syndrome suffered by Mr Willcocks was caused by "repetitive activities as a plumber". Dr Paterson, Branch Medical Advisor based his opinion on "repeated handling of materials in his work as a plumber". 10 Dr Ryan-Sheridan gave as her opinion simply that Mr Willcocks worked as a plumber, without any greater specificity, which contributed to the condition of CTS. There is not one jot of evidence or reasoning to show how those opinions were formed, how those conclusions were reached or even as to the expertise of those who were giving those opinions. In contrast to that there is the evidence which this Court has heard from experts in occupational medicine, backed up as it has been by detailed evidence of the type of work which Mr Willcocks undertook for the two appellant employers. Nowhere has there been any attempt to identify the property or characteristic. Much was said of the hammering that was required when working with some copper piping but there is no evidence that that hammering, interspersed as it was with a wide range of other duties, was the property or characteristic that could have contributed to the gradual process. Certainly that cannot be implied into the brief statement of Dr Clatworthy. Dr Paterson talks of "handling", not of hammering. Those views are rejected by the two occupational medicine experts. Then there is the fact that Mr Willcocks suffers from bilateral CTS and whilst he said that as a normally right handed person he would change to his left hand to do some tasks when his right hand got sore, I do not regard that of itself to be sufficient to give rise to the necessary intensity of use which could cause bilateral CTS from occupational tasks, in the absence of expert evidence stating so. As was submitted by counsel for the appellants, the burden of proof to establish that Mr Willcocks' injury comes within the provisions of s.7 of the Act is upon the Corporation and I approve and adopt the statement made by Judge Ongley in South Pacific Tyres Limited v ARCIC (47/96) where he stated: 11 "Acceptance of a claim as a work injury is a decision affecting the Corporation, the claimant and the employer. As between the Corporation and the claimant the matter is satisfactorily resolved, but it does not follow that the onus of showing the injury was not a work injury then rests entirely on the employer. If the Review Officer has changed a decision on the basis of adequate evidence and a correct view of the law, the employer would have to persuade the Court to reverse the decision on appeal. However. in this case, where there is no real evidence before the Corporation or the Review Officer sufficient to resolve the question that is disputed by the employer, the question now on appeal is at large. The Corporation carries the substantive allegation that this was a work accident affecting the appellant's experience rating. The burden of proof therefore lies with the Corporation and I find that it has not been discharged." As I have noted, the efforts of the Corporation to determine whether the requirements of s.7 had been established in my view were less than satisfactory, witness the inclusion of Plumbing World. I find that a further observation made by Judge Ongley in the decision of Click Clack International (decision 61/95) to be relevant in the present case. In that decision he stated: "The classification of a gradual process employment injury has repercussions for an employer by way of experience rating and premium loading. Before making such a classification the Corporation must be satisfied on reasonable grounds that the requirements of section 7 of the Act are established. It follows that the Corporation must make reasonable enquiries before making a decision affecting an employer. I think that in this case Dr Turner's report has exposed the deficiency in the process although the difficulty was not so apparent earlier as it is now. In the fact of Dr Kirk's report and the other medical information a need arose, either before or at the time of the review hearing for the appellant to provide expert opinion concerning the conditions other than work environment that may have caused occupational overuse syndrome." In this case the two experts' reports have exposed that deficiency, but I find that they have gone further in this case in that they have thrown up a sufficient negativity for this Court to take a different course than that which Judge Ongley took in the Click 12 Clack case. Both counsel for the appellants, when making their submissions, argued that the matter should be finally determined by this Court on appeal rather than being remitted back to the Review Officer. They cite the considerable expense that has already been incurred and the compelling evidence that is favourable to them. I agree with those submissions and decline to remit the matter back for further investigation . Accordingly then I find that there was insufficient evidence upon which the Corporation or the Review Officer could safely determine that the criteria for s.7 of the Act had been established. The decision of the Review Officer is therefore revoked. In view of this determination it is unnecessary for this Court to consider the second issue. I award each appellant the sum of $850 costs together with disbursements as may be fixed by the Registrar. DATED this 30n day of January 1998 M J Beattie District Court Judge DCA81-97.doc(19)