Penter v Accident Rehabilitation and Compensation Insurance,Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 375 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NOELEEN MARGARET PENTER of Christchurch Appellant (Appeal No. DCA 313/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 19th day of October APPEARANCES/COUNSEL A J Cadenhead for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under section 7 of the Act. The appellant is a Music Teacher by occupation and lodged a claim for cover with the respondent on 22 April 1996. In that claim her General Practitioner gave as his diagnosis "occupational overuse syndrome. Neck arms shoulders." The appellant stated that the injury had occurred in November 1994 and that the cause "was 2 playing piano a lot & doing a lot of conducting as music teacher. Got pain in arms/neck/shoulders." Her visit to her doctor was made on 2 November 1994. The appellant completed the usual questionnaire form in which she stated that she was employed as a Music Teacher which involved teaching music in class and taking extracurricular lessons in which she was involved in piano playing and conducting. She said that she was occupied in these tasks for approximately four hours per day, a job which she had been doing for some 16 years. She stated that the pain had come on over a long period of time and affected her shoulders, arms, wrists, elbows, hands, hips, buttocks and knees. The appellant stated that her non-work activities had included some family tennis and that at the time of her claim she was the Musical Director for a Christchurch band. She also said that she enjoyed gardening. She stated that the symptoms were first noticed in 1982. The Headmaster of the appellant's employer, Cashmere High School, raised some doubts as to whether the work at the High School was the cause of her problem as he considered it appeared to be a gradual process condition over a number of years. The appellant's General Practitioner submitted a report from Dr WED Turner, dated 8 March 1996, in which he gave as his opinion: "In my opinion in the light of this patients long pain history going back some 15 years together with non musculoskeletal symptoms of sleep disturbance [at least in the past], morning stiffness, headaches, anxiety, prior depression, urinary urgency and dysmenorrhea plus my clinical findings of 18 out of 18 Symthe tender points above and below the diaphragm; I would assess her as having a chronic fibromyalgia pain syndrome. Clearly there are a multitude of modulating factors including physical activity [piano playing as well as gardening, house work, carrying objects], stress, noise, anxiety and cold." On 11 June 1996 the respondent notified the appellant that her claim for cover for a gradual process injury was declined because "it has not been established that your condition is due to your employment tasks as a Teacher. It has been established that many non work factors has (sic) had a significant contributing effect on your condition." The appellant applied for a review of that decision. At the review hearing the advocate for the respondent submitted that while the appellant had been teaching for only five years at Cashmere High School, she had been a Music Teacher for some 37 years and that this work had contributed to her injury. The appellant gave evidence that the problems had first been noticed in 1982 at a time she was practising for a Music Diploma but that the pain had become more severe by 1995. The Review Officer concluded that she was not persuaded that the appellant satisfied the test under section 7(1)(b). It is against that decision which the appellant now appeals. At the appeal hearing the appellant was granted leave to adduce in evidence a report from Dr Turner dated 15 June 1998 together with various reports regarding the appellant's work at the Cashmere High School. The appellant also gave viva voce evidence. Similar leave was granted to the respondent to adduce in evidence a 3 memorandum from Dr K Bremner, a memorandum from Dr S Dawson, a report from Professor D F Gorman, a job description from Cashmere High School, and a copy of the Minutes of the Consensus Meeting on fibromyalgia. In her evidence the appellant stated that she had completed her letters for ATCL in 1978 and that it had taken some six years to complete. She said that she then carried on in order to obtain an LTCL which was completed in 1982. She said that she had entered the Christchurch Secondary Teacher's Training College in 1980 to carry out a one year Secondary Teacher's Training Course. Her ambition was to obtain a position teaching secondary school music and in order to complete the Secondary School Teacher's Training Course, it was necessary for her to obtain the LTCL from Trinity College. She said that she commenced the LTCL course before entering the Teacher's Training College and continued her studies while in employment after leaving Teacher's Training College. She said that during the time at Teacher's Training College, she received a teacher's training allowance. On completion of the Teacher's College Course, she obtained employment with Rangi Ruru Girls School and Riccarton High School. She said that prior to 1970 and from then onwards, she was also involved in private music tuition which she carried out at home in the evenings until 1992 when she obtained employment at Cashmere High School. The appellant told Mr Corkill that while she was undertaking the LTCL course she would practise about an hour per night after leaving school but in the weekends would do approximately seven hours practise. She said that she considered she would not have got into Teacher's Training College had she not agreed to undertake the LTCL course. Mr Corkill indicated that it was proposed to raise the issue of whether or not the appellant had suffered an injury in terms of section 4 of the Act, in addition to the question of whether she could satisfy the criteria of section 7(1)(b). While Mr Corkill provided me with further evidence, including the report from Professor Gorman and the Minutes of the Consensus Meeting on fibromyalgia, I have already taken issue with the findings of that meeting in my decision in Teen (335/99). I consider that the same situation applies in this appeal in so far as section 4 is concerned. I accept Dr Turner's finding in his report of 15 June 1998 in which he stated: "In conclusion therefore whilst I can not provide you with a definitive opinion that damage has actually occurred at the fascicular or molecular level in Mrs Penter's nerves I can confirm however that there is at the very least dysfunction in her peripheral arm nerves particularly the median and radial nerves which is an integral part of her work related myofascial pain syndrome condition. Dr Janet Travell who carried out the original research on the myofascial pain syndrome concludes that acute muscle strain overloads the muscle contractile elements causing tissue damage and the release of stored calcium. This calcium along with ATP causes the fibres to remain in a contracted state, provide a reflex response involving the central nervous and sympathetic nervous systems. Nerve 4 sensitising substances such as histamine, serotonin and kinins may be released in the trigger point zone as a result of this trauma which would mediate some of the pain responses through the CNS. Clearly much more research however needs to be done to confirm this. The inability to actually prove injury at a molecular level from the work process is not evidence against such causation. Given that one can not prove the absence of an effect [ie. a negative] the possibility of occupational causation can not be completely discounted. In my view at the very least there is compliance with three subsections of Section 7 which does point towards occupational causation." As I found in Teen, I consider that the dysfunction brought about by the repetitive work is a personal injury and the manifestation of pain is a symptom of that injury. The issue on which this appeal depends is whether or not the appellant can satisfy the criteria of section 7(1)(b) of the Act. I consider that the evidence establishes that the appellant's problem had its beginnings during the time the appellant was undertaking the LTCL course. It is clear, from the evidence which she gave, that at that time she was attending the Teacher's Training College with a view to become a Secondary School Music Teacher. She was aware that the qualification of LTCL was a necessary prerequisite to obtaining a position as a Second School Teacher. I agree with Mr Corkill's submission that the appellant was not contracted to undertake the course as a part of an employment task but that it would have been a necessary qualification in order to obtain the proposed teaching position. She was not being paid to carry out the course of study and accordingly I do not consider that she could be held to have been in employment at that time. Accordingly, I agree with the Review Officer that the appellant has not satisfied the criteria of section 7(1)(b) and the appeal must be dismissed DATED at WELLINGTON this \ "day of December 1999 A W Middleton District Court Judge dca313-96.doc (nr)