Prime Range Meats Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT INVERCARGILL Decision No. 1/ 96. UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN PRIME RANGE MEATS LTD of 91 94 / 0077 Invercargill Appellant (Appeal No. DCA 195/93) 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 February 1996 APPEARANCES A M Forde - Managing Director on behalf of appellant A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON This appeal is against a decision of the respondent that the appellant's employee, Mr Hamlin suffered an occupational injury. The file discloses that on 17 February 1993 Mr Hamlin lodged a claim for cover in which he stated: "For 4 years recurrently lifted and flexed elbows resulting in pain over the inside of the elbows." 2 He stated that the injury occurred on 23 December 1992 and the certificate from his doctor noted: "Occupational overuse syndrome both elbows causing tendernitis of the medial epicondyles." After work injury questionnaires were completed by the appellant and Mr Hamlin the respondent referred the file to its District Medial Officer who concluded that the claim should be accepted. His comments were: "1. The employment tasks had a particular property or characteristic which caused or contributed to the injury. 2. The particular property or characteristic which caused or contributed to the injury was gradual process. 3. That non work activities did not significantly contribute to the condition. 4 That the risk of suffering the injury was significantly greater for persons performing Mr Hamlin's work tasks than for others who did not. 5. Recommended that the claim be accepted." As a result of the respondent's acceptance of the Medical Officer's advice the employer, Prime Range Meats Limited, applied for a review. At the review hearing Mr Forde submitted that the appellant's first knowledge of the incident was the receipt by it of the employer's questionnaire form from the respondent. He submitted that no incidents had been reported to the appellant but after it received notification of the claim it made its own investigation and provided its submissions to the respondent. Mr Forde submitted that Mr Hamlin's workload did not alter to the detriment of his condition and that it was not unduly onerous. Mr Forde submitted that Mr Hamlin's duties were routine and typical of all occupations of the nature performed by Mr Hamlin and could not be considered more hazardous than any other daily functions. Prior to issuing his decision the review officer obtained confirmation from Mr Hamlin's General Practitioner that Mr Hamlin had had no problems with his elbows until he was first seen on 17 February 1993. The review officer upheld the respondent's primary decision against which the appellant has now appealed. After the appeal was lodged the respondent arranged for the appellant to be examined by Dr Gordon Hancock, an Occupational Physician who issued a report on 24 January 1996. In that report after outlining the appellant's medical history, Dr Hancock gave as his comment and opinion: "Mr Hamlin's history and the clinical findings of Dr Hill and myself leave me in no doubt that he suffered a specific inflammatory condition of muscle and tendon around the elbows- most noticeably the right. This confirms to me that his 3 condition very clearly fits into the diagnostic category of "Occupational Overuse Syndrome"(OOS) rather than a more ill-defined, non-specific condition. Given that his condition was related to overuse, his occupational history, involving repetitive handling of heavy loads, frequently associated with prolonged muscle tension in the forearnis strongly points to his occupation as being the cause of his condition, especially as this work was carried out in an environment (albeit self- imposed) of pressure to get his work completed as quickly as possible. Furthermore, no out-of-work factors could be identified in the development of his condition. The fact that Mr Hamlin's symptoms improved very considerably when he moved to a job where heavy manual handling was largely replaced by mechanisation also indicates that his previous work was implicated. While it is of course difficult to be absolutely definite about the occupational nature of his condition so long after the condition developed, my opinion is that his condition was caused by his work at Prime Range Meats." Mr Forde submitted that immediately upon becoming aware of Mr Hamlin's claim the appellant had made a thorough investigation of the working conditions which applied to Mr Hamlin. The result of that was that it was concerned that it had had no prior notification from Mr Hamlin that he had a problem and that in its view there was nothing in the workplace which could give rise to a complaint of the nature of that suffered by Mr Hamlin. The report also indicated that there had been no significant change in work practices and that Mr Hamlin was not in any pressure to undertake his work. The appellant was concerned that it had not received any background information which would have prompted it to consider the position prior to the claim being made nor did it have any medical information which could assist its investigation. Mr Forde submitted that the appellant prides itself on the responsibilities it has to its employees and is conscious of its duties in relation to industrial accidents. Mr Forde submitted that in the appellant's view no accident or incident took place in Mr Hamlin's place of employment which could be regarded as having caused his problems. The appellant doubted the nature of Mr Hamlin's problems and had no medical detail to assist it in its investigations. Mr Barnett submitted that section 8(2)(b) provides cover for personal injury which: "is caused by gradual process disease or infection arising out of or in the course of employed as defined in section 7 or section 11 of this Act". He submitted that section 7 is applicable to this appeal and that it raises three requirements which must be established they being: 1. That the employment tasks had a particular property or characteristic which caused or contributed to the injury. 2. The property or characteristic is not found to any material extent in non- employment activities or environment of that person. 4 3. The risk of suffering personal injury is significantly greater for persons performing the employment task than for persons who do not perform the task. In support of the first proposition Mr Barnett referred me to Dr Hancock's report in which he detailed the repetitive task in which Mr Hamlin was engaged and confirmed that there were no non-work activities which were identified and which could have been contributed to the condition. He submitted that Dr Hancock's comments completely supported the views of the respondent's District Medical Officer. In relation to proposition 2 he submitted that the evidence of Mr Hamlin was supported by both Dr Hancock and the Corporation's Medical Adviser. In relation to proposition 3 he submitted that Mr Hamlin's evidence was that he was involved in the repetitive activity of lifting. Mr Forde acknowledged to him that the job was repetitive but in his view was not of the same nature as that of a person engaged at a machine and doing a repetitive job for eight hours per day. In issues such as this the Court must always be guided by the medical evidence. While Mr Forde disputes the nature of the work undertaken by the appellant the evidence of both doctors is that the work was of such a nature that it did in fact cause the problem from which Mr Hamlin now suffers. While I accept that the appellant is conscientious in endeavouring to provide a safe workplace and safe work practice, I can not go behind the medical evidence, which in this case is uncontradicted. The appeal is dismissed. DATED at WELLINGTON this day of MARCH 1996 percinadentsin A W Middleton District Court Judge dc195-93.doc (nr)