NZ Post Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 224 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWE NZ POST LTD DCA 114/97 Appellant AND EZIBUY LTD Interested Party AND DAVINA M SAMWAYS Claimant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of October 1997 2 APPEARANCES: Mr P Drummend for appellant Ms M Woods for Ezibuy Ltd Ms D M Samways in person Mr P McBride for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the claimant's OOS pertaining to the muscles of her left thumb and the flexor muscles of her right wrist was a gradual process arising solely out of and in the course of her employment with the appellant or whether the claimant's secondary employment with Ezibuy Ltd was work also involving that gradual process for the purposes of apportioning the costs of the claims as provided by section 7 (7) of the Act. Background Facts The claimant commenced employment as a mail sorter for NZ Post Lid on 29 August 1994 on a casual basis and became a permanent part time employee on 3 July 1995. On 16 January 1995 she commenced secondary employment with Ezibuy Ltd as a Telephone Sales Assistant working from 9 am to 4 pm on the majority of Saturdays or Sundays. In October 1995 the claimant experienced pain in her right and left wrists and also her left thumb. On 5 October she consulted her General Practitioner, Dr Robson, and was diagnosed with OOS for bilateral wrist strain. On 5 October 1995 the claimant lodged a claim for cover with the Corporation. 3 Advice of the claim was given to both employers and input from them in the form of a gradual process questionnaire was obtained. By decision dated 12 December 1995 the Corporation advised "that all costs will be attributed to NZ Post. As the medical information supports that the employment at Ezibuy has not had any effect on Davina's hand (either in onset of the condition or ongoing effect) no costs will be attributed to their claim's history." The appellant lodged an application for review against that decision and the Review Officer concluded that the decision had been made in the absence of a full investigation of the criteria in section 7(1)(b) of the Act, and in particular the respective roles of employment by NZ Post and Ezibuy. The matter was referred back to the Corporation to investigate and issue a new decision. Following consideration of new information received by the Corporation including work site assessments, input from the Corporation's medical advisors and independent specialist evidence from Dr Keir Howard, a Specialist in Occupational Medicine, a further primary decision dated 11 November 1996 was issued, which attributed the costs of the claimant in full to the appellant NZ Post. The appellant sought a review of that decision and by decision dated 4 April 1997, the Review Officer concluded that a full investigation had been carried out as was required and that: "the employment task undertaken at NZ Post was the significant cause which gave rise to Ms Samways' symptoms and it follows I will not be altering the Corporation's decision, which confirmed the claim, would be classified as a work injury attributed 100% to NZ Post." 4 It is from that decision that this appeal arises. Relevant Facts Relating To Claimant's Employment The claimant's employment contract with NZ Post was for working 20 hours per week over five days. In addition to that, she would do 1 to 2 hours per day overtime on a regular basis. The work, she carried out, was solely mail sorting which required distinctive repetitive movements with her hands. She says that she was sorting up to 7 trays of mail an hour, roughly 2,000 letters. In January 1995 she began working in the weekends for Ezibuy Ltd as a Telephone Sales Assistant. This employment did involve some keyboard and data input work. Her task was to receive and record on database customers' telephone orders for goods which they had selected from a catalogue. This required her to take customers' details, access these on the computer, check them for accuracy and key in any alterations, then to record the details of the items being ordered. In the assessor's report it was stated that the keying is regularly interrupted by verbal interactions between the Operator and the customer and often by the need to refer to the catalogue or to retrieve samples to assist in describing a garment or other items. A record of her employment with Ezibuy indicates that she did not work consecutive Saturdays and Sundays, apart from two occasions. Thus, in the majority of cases she worked one 7 hour shift per weekend in this secondary employment. The assessor's report on her job with NZ Post indicated that it involved more repetition of small active movements over extended periods and under more pressure to process quickly, which increases the speed at which the actions are done. There is regular reaching, stretching, and lifting of moderate weights, with the potential for soft tissue injury from stretch or overloading 5 of tissues. It was stated that this was not the case with her employment with Ezibuy. Appellant's Submissions Counsel for the appellant submits that the Review Officer erred in not making an apportionment between NZ Post and Ezibuy. Counsel does not dispute the fact that NZ Post's environment had the property or characteristics which caused or contributed to the claimant's gradual process but contends that in terms of the tests required in sections 7(1)(a) to (c) the employment of the claimant at Ezibuy satisfied those same tests and accordingly there ought to have been an apportionment of the claim between the two employers. Counsel submits that the Review Officer was incorrect to simply hold that there was no causative link between the claimant's symptoms and the work she undertook for Ezibuy. It is contended that the Review Officer was also required to consider whether her employment contributed to the claimant's OOS. Counsel contends that there can be either a causal link or a contribution. He submits that the word "caused" is consistent with meeting the whole cause of the OOS whereas a contribution is consistent with it being partly responsible. Counsel contends that if it is found that the work at Ezibuy contributed to the OOS then that is sufficient for the purposes of Section 7(1)(a). 6 Respondent's Submissions Counsel submits that the question in this case is of narrow compass namely, "whether the claimant was employed by more than one employer in work involving that gradual process (Section 7(7))." It is submitted that section 7(1)(a) requires consideration of the specific gradual process causing the symptoms. Counsel contends that it is not enough that there is another recognised cause of a gradual process which might have occurred but rather the question is whether the same gradual process caused by the same property or characteristic occurs in more than one facet of the claimant's circumstances. It is submitted that if and only if that specific gradual process is present in another employment then the cost of the claim shall be divided between those employers. Counsel contends that in the case of the claimant's employment there were two distinct potential gradual processes: (i) that involving key board work for Ezibuy and (ii) that involving manual mail sorting for the appellant. Counsel contends that the medical evidence determines that the claimant was suffering only from OOS associated with the activities of the latter and that accordingly the decision of the Review Officer was correct. Submissions On Behalf Of Ezibuy Ltd Counsel submitted that in determining whether or not Ezibuy Ltd contributed to the claimant's injury a similar test to that outlined in section 7 7(1)(a) should be applied. That is, whether the properties or characteristics which caused or contributed to the personal injury by gradual process is found to any material extent in the claimant's employment at Ezibuy. Counsel submits that the evidence establishes that the claimant's employment at Ezibuy did not contribute to her injury or at the very most it did not contribute to the injury to any material extent. Relevant Law S.7(1) provides that: "Personal injury shall be regarded as being caused by gradual process, or infection arising out of and in the course of employment only if - (a) In respect of a period that ended on or after 31st 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. ( 7) For the purposes of this Act, the employer of the person shall be the last employer whose employment exposed that person to gradual process or the risk of disease or infection; but where 8 the person was employed by more than one 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." The appellant does not dispute that the claimant's employment at NZ Post has the properties or characteristics which could cause or contribute to OOS complained of and NZ Post does not take issue to there being a causative link between the claimant's employment at NZ Post and her OOS as diagnosed. I accept counsel for the appellant's submission that when the question of contribution between employers is to be considered, each employer must be put to the test set forth in section 7(1)(a) and (c). Having said that, however, I find that it is not sufficient to satisfy the tests contemplated in those subsections, by simply determining whether the second employment is one which is known to possess the property or characteristics which can cause a gradual process type injury and that if the answer is yes, then it must be regarded as being a causative or contributing factor. I agree with counsel for the respondent's submission that the wording of section 7 is specific and that the enquiry must be whether the particular employment task, or environment in which it was performed, have a particular property or characteristic which contributed to the particular personal injury complained off. OOS is simply a generic term covering a multitude of injuries which could be caused by repetitive use and strain of particular muscle groups. Thus, the enquiry must be whether the muscle strain complained of was caused by the 9 particular activity of the claimant's employment. There is no argument that insofar as NZ Post employment it did, but did the same characteristics which could cause the same injury (muscle strain) also arise in the Ezibuy employment. Counsel for the respondent put it succinctly. It is not enough that there is another recognised cause of a gradual process which might have occurred, the whole question is whether the same gradual process caused by the same property or characteristic occurs in both the claimant's employment tasks or environment. In this case there is the repetitive task of manual mail sorting 4 - 5 hours per day 5 days a week on one hand and on the other there is keyboard work incidental to telephone sales tasks for 7 hours 1 day per week. Dr Keir Howard, a Consultant Specialist in Occupation Medicine, examined the claimant and at the time of examination had the benefit of the two work place assessments carried out by an Occupational Therapist. After obtaining his own history and examination, he stated inter alia: "a part from the generalised soreness in the neck and shoulder muscles which can be largely put down to muscle tension and postural problems, Ms Samways presents with a very specific set of problems confined largely to the muscles of her left thumb and the flexor muscles of right wrist. In my opinion these are related almost entirely to the nature of the movements she has been performing, which she both described and demonstrated to me, related to her work as a mail sorter with NZ Post. The muscle groups involved are so specific that it is virtually impossible to relate her problems to any other set of activities. Certainly the nature of her work in data entry would not induce problems in her left thumb - this would be related almost solely to her right arm. Although there are some problems on the right, these again may much 10 more reasonably be related to her work in "flicking" the letters into the sorting boxes at high speed. It is my judgment therefore on the basis of the clear history that I have been given as well as on the basis of my examination that the predominant musculoskeletal problems in the left thumb and related muscles and the right wrist and forearm are the result of her work with NZ Post rather than with Ezibuy." The only other specialist evidence was that of Dr Robinson who was instructed by the appellant and presented at the review hearing not only as a medical witness but also as an advocate for the appellant. He did not examine the claimant nor did he have knowledge of her work environment at Ezibuy. The thrust of his evidence and opinion was that because the claimant had not worked at NZ Post since the beginning of November 1995 and did not recommence her employment there until 21 February 1996, and there is a medical certificate issued by her GP in mid January noting a deterioration to her condition, it was his assumption that the source of her OOS could not be NZ Post. As she had worked at Ezibuy until 20 December 1995, it must have been this employment which was the source. Dr Robinson went so far as to advise that it was his professional opinion, based on events as contained in the ACC file that NZ Post has no liability for this particular claim. The fact of the matter was that the claimant did not work at Ezibuy from 20 December until 4 February 1996 and it was during the period that she was working for neither that there was a deterioration. In addition to that fact there is the testimony of the claimant herself to the effect that at no stage after her work day at Ezibuy did she suffer any 11 discomfort. It was her assessment that the sole cause of her injury was the type of work she did at NZ Post as it was only after her work there that the discomfort and pain arose. It is to be noted that she was able to return to work at Ezibuy before being able to perform any duties at NZ Post and this fact I find supports the contention that her duties at Ezibuy did not cause her any difficulties. Having considered the evidence, I find that there is no evidence that the nature of the claimant's employment tasks at Ezibuy caused or contributed to the gradual process injury that was diagnosed by Dr Robson and confirmed and given weight to by the opinion of Dr Howard. I find that the gradual process injury which the claimant suffered namely musculoskeletal problems in the left thumb and related muscles in the right wrist and forearm are particular to the nature of the movements she was required to perform as a mail sorter with NZ Post and that her keyboard task with Ezibuy have not been shown in any way to have contributed to those specific injuries. Whilst I recognise that sustained keyboard work can cause OOS, there is no medical evidence to support a contention that the claimant's keyboard work affected the muscles specifically diagnosed by Dr Howard. I do not view the use of the words "almost entirely" in Dr Howard's opinion to allow the appellant to place Ezibuy in the frame. His opinion went on to state that it was "virtually impossible" to relate her problems to any other set of activities. By any view such statements do not satisfy the "balance of probabilities" test. 12 The medical evidence I find establishes that the claimant is not suffering from keyboard-use OOS and therefore, insofar as section 71(a) is concerned the elements necessary to provide an affirmative answer to the question posed in that subsection cannot be found and therefore the gradual process injury which the claimant undoubtedly suffers cannot be stated as arising out of and in the course of her employment with Ezibuy. Accordingly, for the foregoing reasons this appeal is dismissed. DATED at WELLINGTON on this loth day of November 1997 M J Beattie District Court Judge NZ Post.doc(gm)