Warwood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 216 /98 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 BETWEEN RAEWYN WARWOOD DCA 135/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND EDAC SYSTEMS LTD Second Respondent HEARD on the 9th day of September 1998 APPEARANCES: Mr A Cadenhead, counsel for appellant Ms J A Cheyne, counsel for first respondent Miss N J Robinson, counsel for second respondent 2 RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether the appellant is entitled to cover for personal injury caused by gradual process arising out of and in the course of her employment, pursuant to s 7 of the Act. Background In August 1996 the appellant lodged a claim for cover for an occupational overuse injury affecting her right wrist. She was then aged 35 years. The claim stated that the injury had been caused by "continual bending of wrist while loading circuit boards". The appellant was employed by the second respondent as a locater operator and her duties involved the operation of a semi automatic component loading machine making up electronic circuit boards. The machine operated by the appellant is described as a cut and clinch machine. The operator places components from a rotary bin located to the left of the table into the board guided by an overhead light. For each component the machine moves the board into position so that the target holes on the board for each component are at the same location. The operator takes the component from the bin, the overhead projector projects two light spots on the exact target hole on the board and the operator then places a component in the target hole and with a foot switch operates the cut and clinch mechanism and then starts the next cycle. It was stated that the machine has a cycle time of 2-3 secs but this time is exclusive of the operator picking up and placing a component on the board. A best cycle time would likely be 4 secs per component. 3 The appellant worked an eight and a half hour shift and whilst evidence of the exact number of components fitted in the course of a working day varied between the appellant and the employer, it is a fact that several thousand placements of components per day are carried out. That number increases when overtime is worked and at material times the appellant was working longer hours doing overtime. The appellant was referred by her GP to Dr J O'Donnell, specialist in Rheumatology and his report to Dr Milford, the appellant's GP, dated 19 August 1996 stated, inter alia, that two months ago she developed pain in her right hand and arm, that it later became more severe and began radiating into her shoulder. It was Mr O'Donnell's opinion that the symptoms she displayed were consistent with reflex sympathetic dystrophy (RSD) involving the right arm. He arranged for her to undergo physiotherapy. In September 1996 the Corporation sought opinion from Dr O'Donnell in relation to her claim for cover and he reported to the Corporation on 16 September 1996. He restated matters which had been contained in his earlier report to Dr Milford but indicated that x-rays had now been taken which showed no significant abnormality. In conclusion Dr O'Donnell stated: "The prognosis of reflex sympathetic dystrophy (RSD) is quite variable. Many view this disorder as part of the spectrum of chronic diffuse and chronic regional pain syndromes. In Mrs Warwood's case I could find no pre-existing conditions of relevance, however, that is generally the case with such diseases which may be associated at their onset with very minor trauma or in some cases no direct relationship to trauma at all. I could not directly relate Mrs Warwood's condition to her occupation or any other non occupational activities although many would ascribe a cause and effect relationship between work of a repetitive nature and the development of such a disorder. As the cause of this condition is basically unknown, it is not possible to give advice as to what measures could have prevented it. Many consider adverse ergonomic factors play a part however the presence of such factors has little predictive value in the development of RSD. Many studies point to psychosocial factors as playing a significant role in these disorders. 4 Evaluating such factors is not easily done and requires more in depth and prolonged assessment." As a result of the advice received from Dr O'Donnell the Corporation advised the appellant by letter dated 1 October 1996 that it was declining cover on the basis that the medical evidence could not relate the injury complained of to her employment tasks. The appellant lodged an application for review of that decision and for the purposes of that review the Corporation sought the opinion of Dr Alchin, a specialist in Occupational Medicine. Dr Alchin reported to the Corporation on 5 December 1996, a report of some eight pages. It is as well to note that as part of the appellant's history, as noted in Dr Alchin's report, is the fact that she had commenced her employment with the second respondent in August 1995 and prior to that had been employed for the previous six years at Mcdonalds restaurant in Merrivale working up from a cleaner, to a trained server and eventually manager. Dr Alchin's report contains a thorough description of the appellant's work tasks and it is evident from that description, which accords with the description given by the employer, that the appellant was engaged in a very repetitive task using her hands in particular ways. As Dr Alchin stated: "Thus this movement entails leaning forward, and very repetitive movements with her right arm (external/internal rotation at the shoulder with extension of the elbow to insert the part with her right thumb). In an eight hour day she was loading nine sheets per day. Each sheet consisted of 12 boards and there were 50 items per board. The appellant ceased her employment with the second respondent in August 1996 and as late as March 1998 when she was examined by Professor Burry 5 she was still experiencing pain in her right shoulder and some tingling feeling on the ulnar border of her forearm and hand. As previously noted the Review Officer had Dr Alchin's report and in addition the appellant submitted a report from Professor Bill Glass. The Review Officer's decision delivered on 16 April 1997 held that the appellant had not satisfied the requirements of s 7(1)(a) of the Act and therefore confirmed the Corporation's decision to decline cover. For the purposes of the appeal to this Court the appellant sought leave to introduce further medical evidence by way of a further report from Professor Bill Glass and secondly a report from Professor Hugh Burry. In addition the Court was provided with a report dated 17 October 1996 from Mr John Lester, Hand and Orthopaedic Surgeon, which had been obtained by the appellant's insurer. The Court also received further briefs of evidence from the appellant and Mr Riedinger, the second respondent's Production Engineer, who gave evidence of the work tasks carried out by the appellant. This appeal concerns the provisions of s 7 of the Act which provides as follows: 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. 6 The nature of this appeal requires the Court to consider the medical evidence as the matters requiring determination in s 7 are largely medical matters requiring expert medical opinion. The Medical Evidence In addition to the first report from Dr O'Donnell dated 19 August 1996 and referred to above, he provided a second report at the request of the Corporation dated 16 September 1996. In this report he further commented on the diagnosis of reflex sympathetic dystrophy (RSD) which he had diagnosed and he stated as follows: "The prognosis of Reflex Sympathetic Dystrophy (RSD) is quite variable. Many view this disorder as part of the spectrum of chronic diffuse and chronic regional pain syndromes. In Mrs Warwood's case I could find no pre-existing conditions of relevance, however that is generally the case with such diseases which may be associated at their outset with very minor trauma or in some cases no direct relationship to trauma at all. I could not directly relate Mrs Warwood's condition to her occupation or any other non-occupational activities although many would describe a cause and effect relationship between work of a repetitive nature and the development of such disorder. As the cause of this condition is basically unknown it is not possible to give advice as to what measures could have prevented it. Many consider adverse economic factors play a part, however the presence of such factors has little predictive value in the development of RSD. Many studies point to psycho-social factors as playing a significant role in these disorders. Evaluating such factors is not easily done and requires more in-depth and prolonged assessment." The next report is the first report of Professor Bill Glass, Occupational Medicine Specialist, dated 15 November 1996. Professor Glass had the benefit of Dr O'Donnell's reports and after conducting an examination of the appellant and also obtaining a detailed description of her work tasks he stated: 'Raewyn Warwood gives a clear and detailed history of work related right thumb, arm and shoulder pain developing an association with an intensely 7 demanding repetitive and forceful thumb movement while sitting in a constrained posture. The symptoms were exacerbated and became established as a consequence of overtime during the pre-Christmas 1995 period. Raewyn is a conscientious and hardworking person, who loved her job, and who as a consequence continued to work through the pain (apparently under some supervisor threat or pressure) until the pain became unbearable. Since stopping work she has shown some gradual improvement. Her attitude is positive and she is carrying out graduated home activities. Dr O'Donnell has diagnosed reflex sympathetic dystrophy, what Caillet calls the Shoulder Arm Hand Syndrome or minor classification of RSD, although there is an overlap between the minor and the major category (which includes causalgia). The sympathetic nervous system is of course involved with pain the primary causative factor and varying degrees of reflex physiological reaction to external noxious agents. Raewyn has developed a right shoulder, arm and hand condition (Reflex Sympathetic Dystrophy) directly as a result of working in a static constrained posture with associated forceful repetitive finger (thumb) movement and right arm pressure. This is a classically described condition and is causally related to her case to the repetitive trauma of her work." The next report is that of Dr Alchin, Specialist in Occupational Medicine dated 5 December 1996. He states: "Her condition, however, is also consistent with regional pain syndrome, a form of chronic pain. Dr O'Donnell correctly points out, however, that these conditions can be considered to be part of a spectrum of one condition, with RSD as the extreme form. Viewed in this light, which in my opinion is probably correct, mild RSD merges with regional pain syndrome. Mrs Warwood certainly does not have the textbook features of advanced RSD with atrophy of the skin, underlying musculature and bone (SUDEKS) atrophy, a patchy osteopenia. In cases without these advanced features diagnosis is more difficult and uncertain. Thus it would be reasonable to accept that Mrs Warwood has a mild form of RSD, or a regional pain syndrome: these conditions probably overlap, ie probably the same thing On the basis of the history obtained, of clinical experience and of the medical research literature, it is reasonable to conclude that Mrs Warwood's initial right trapezias and right thumb based discomfort were due to her occupation. 8 However, on balance, although it is impossible to be certain, it would be reasonable to accept that these initial discomforts were more likely to have been caused by her work, rather than simply being precipitated and exacerbated by work. Mrs Warwood has, however, developed the distinct condition of SD/Regional Pain Syndrome. Is this condition caused or contributed to by Mrs Warwood's work task? My understanding is that Dr O'Donnell is correct, in that the cause of RSD and Regional Pain Syndrome is not known. It is impossible to answer this question with certainty because of the uncertainty that exists scientifically about the cause or causes of such conditions. It can, however, be said that it has not been shown that the development of RSD or Regional Pain Syndrome is due to ergonomic or work related factors; I believe that Dr O'Donnell thus states the orthodox medical opinion in his report. Thus, like Dr O'Donnell, I believe that it is not established that either RSD or Regional Pain Syndrome is caused by Mrs Warwood's work task, although I would accept that the work factors are the most likely cause of her initial acute right sided trapezias and base of thumb pain. There is no evidence that non work activities have contributed to her condition. As stated above, I believe that work factors (activities and posture) are the likely cause of her initial acute pain, rather than non work activities. Therefore non work activities are even less likely than are work place factors to have caused her regional pain syndrome or RSD. However there are probably non work factors which have contributed to her condition ie the individual factors (as yet completely elucidated) which cause conditions such as RSD and other regional pain syndromes. Three fairly comprehensive literature reviews on the relationship between occupational factors and shoulder, shoulder/neck or neck and upper limb conditions, make no mention of RSD being related to occupational factors in any studies. This implies that the authors were unable to locate studies dealing with the relationship of RSD to occupational factors and that therefore it would be difficult at the moment to accept that RSD was more common in Mrs Warwood's type of work. Summary: Work is the most likely cause of Mrs Warwood's initial acute symptoms, although pain of a spontaneous and idiopathic origin being exacerbated by work cannot be excluded. The subsequent development of pain 9 affecting the whole or her right arm and shoulder girdle with altered neurovascular physiology has not been established to be due to workplace ergonomic factors." The report of Mr Lester, Orthopaedic Surgeon, dated 17 October 1996 stated: "With respect to the musculo-skeletal condition itself, it appears to me that the basic problem which first arose was that of pain in the carpomedicarpal joint of the right and dominant thumb associated with the type, of work that she was doing pushing components into boards. Subsequent to this she developed a pain in her shoulder. She then had the physiotherapy which she found aggravated the shoulder to a considerable extent. She therefore now has a combination of problems both in the hands and shoulder and to some extent the neck resulting from this course of events. Although she does not have any gross radiological changes showing in the carpomedicarpal joint of her thumb, on clinical grounds I would feel this lady to have early carpomedicarpal osteoarthritis which had been substantially aggravated by the recent events as have been described. Her subsequent problems in her shoulder would appear to be those consistent with rotator cuff calcification and she may well have some mild spondolytic symptoms from the cervical spine as well. In respect to the diagnosis of Reflex Sympathetic Dystrophy which has been made previously, there does seem to be some history of swelling and perhaps colour change in the hand, but I would still feel that from her history the original problem consisted of the condition in the carpomedicarpal joint of her thumb. This is now associated with the ectopic calcification in her shoulder. With respect to the musculoskeletal condition itself, it appears to me that the basic problem which first arose was that of pain in the carpometacarpal joint of the right and dominant thumb associated with the type of work that she was doing pushing components into the boards. Subsequent to this she developed the pain in her shoulder. She then had the physiotherapy which she found aggravated the shoulder to a considerable extent. She therefore now has a combination of problems both in the hands and the shoulder and to some extent the neck resulting from this course of events. Although she does not have any gross radiological changes showing in the carpometacarpal joint of her thumb, on clinical grounds I would feel this lady to have early carpometacarpal osteoarthritis which have (sic) been substantially aggravated by the recent events as have been described. Her subsequent problems in the shoulder would appear to be those consistent with a rotator cuff calcification and she may well have some mild spondylitis symptoms from the cervical spine as well. 10 In respect to the diagnosis of reflex sympathetic dystrophy which has been made previously there does seem to be some history of swelling and perhaps colour changes in the hand, but I would still fee (sic) that from her history the original problem consisted of the condition in the carpometacarpal joint of her thumb. This is now associated with the ectopic calcification in the shoulder." In his second report, dated 26 August 1997, Professor Glass stated: "The diagnosis. Dr O'Donnell made a diagnosis of Reflex Sympathetic Dystrophy in his report (19.8.96). The treatment he prescribed worsened Mrs Warwood's condition and in particular physiotherapy. In my report of 15.11.96 I accepted Dr O'Donnell's diagnosis although with the reservation that it was a minor (stage one) form and clearly work related. The question, therefore, must be asked and with hindsight: Did she have Reflex Sympathetic Dystrophy? What is Reflex Sympathetic Dystrophy (RSD)? It is a chronic painful condition predominantly involving the limbs (distal rather than proximal) and characterised by burning pain and, later, skin changes and loss of function. There is localised sweating, skin colour and temperature changes. In one study, trauma in 45-65% was a presenting cause. The explanation for the involvement of the sympathetic nervous system is not clear and some authors prefer the term 'sympathetic maintained pain' (SMP). The three stages described by RSD are by no means agreed upon and cases do not easily fit into the different categories. Physiotherapy is an effective treatment. On reviewing Raewyn's history, her initiation, presentation and her poor response to physical therapy make it less clear that the original diagnosis can be sustained. An alternative view: Mr Lester, in his report of 17.10.96, clearly did not subscribe to the diagnostic label. I am of the view that the situation concerning diagnosis is more clear now than it was initially as the sympathetic nervous system signs have resolved. Mr Lester's initial view is preferred as it reflects more clearly the nature of Raewyn's work and the consequences, that is a shoulder condition with some calcification in the rotator cuff. Such disorders are brought about by over-use or repetitive strain (which are described in detail in my earlier report). Conclusion: Raewyn Warwood's thumb and shoulder problem were a consequence of her work. Her thumb pain has gone and activity is now pain- free. Her shoulder pain is much improved but care with heavy work is still necessary. 11 (a) Did her work task have a particular characteristic which caused or contributed to her condition? The answer is yes. It is clearly described in my original report in which her right hand, arm and shoulder was involved in 11,000 more forceful repetitive actions a day. (b) Is this characteristic found in non-employment activities? The answer is no . (c) Is the risk significantly greater to persons performing this task? The question is not answerable in terms of reference to the literature. There are so many different tasks carried out in assembly work by so many different shape and size and age individuals who do it in varying ways that one can only say that in this situation, with this woman, working as she did under the time pressure in the circumstances described, there was a significantly greater risk of developing her right wrist, shoulder condition. Finally there is the report of Professor Hugh Burry dated 23 March 1998 which states: "There can be no doubt that Mrs Warwood was carrying out work of a type that would put her at risk of developing a Regional Pain Syndrome, there being a combination of high frequency repetitive thumb and forefinger movements and a need to sustain a particular shoulder posture throughout the day's activity which would favour the onset of muscle pain of a fibromyalgia type. It is possible that her condition was complicated by Reflex Sympathetic Dystrophy although the description of the clinical features presented at the time of her consultation with a rheumatologist who diagnosed the condition is not particularly convincing. Mrs Warwood now has evidence of the type of localised fibromyalgia which develops in persons who have been exposed to excessive static loading of postural muscles and dynometer recordings of her grip strength, which is a good overall indicator of upper limb function, reveals that there is significant functional disturbance. I have no doubt that Mrs Warwood still has a substantial impairment of function apart from persisting pain. No features of Reflex Sympathetic Dystrophy were evidence (sic)in my examination. Mr Lester has set out the facts of the history accurately and other than the possibility that the calcification that he noted in the rotator cuff was relevant, I would agree with his comments. 12 Professor Glass has set out the facts related to the occupational health issues accurately and I agree with his conclusion that her disability is the result of her repetitive work and postural constraints in the workplace." Submissions Mr Cadenhead, counsel for the appellant, submitted that medical opinion is such that it is not correct, as Dr Alchin stated, that the cause of Regional Pain Syndrome or RSD is not known. He refers firstly to the opinion of Dr O'Donnell who states: "Although many would describe a cause and effect relationship between work of a repetitive nature and the development of such a disorder." He then submitted that both Professor Burry and Professor Glass found that the nature of the appellant's employment was the cause of the disability she now suffers. He submitted that in the first instance this was specifically in the thumb and trapezius, but that it now manifested itself as a Regional Pain Syndrome in some form. He submitted that their opinion was that Regional Pain Syndrome can flow from a person's work characteristics. Mr Cadenhead further submitted that where there appears to be a conflict of evidence amongst experts the quality of the evidence must be weighted in terms of assessing which is to be preferred. He submits that the evidence of Professor Glass and Professor Burry should be preferred, given their vast experience, qualifications and academic study carried out in this field. Counsel observes that Dr Alchin promulgates no other factors which could have caused the appellant's difficulties and observes that at least Dr Alchin, Professor Glass and Professor Burry are at one in that there are no other factors such as psychological or constitutional factors or learned illness behaviour which might be a cause. 13 Mr Cadenhead also referred to the decision of this Court in Saddleton (decision 68/97). In that case the claimant had developed OOS in her arms from keyboard work but later more serious symptoms developed. The later symptoms were diagnosed as fibromyalgia syndrome. The issue was whether the symptoms found in fibromyalgia were a complication or a progression of the initial OOS or which existed independent from the OOS and were due to factors unrelated to the claimant's employment. The Court found that on balance it was probable that the claimant had suffered fibromyalgia symptoms because of her OOS combined with a generic predisposition and accompanying stresses. Counsel submitted that this decision, in which expert evidence from an occupational physician and a rheumatologist was considered, had no difficulty in being able to link work characteristics or environment to fibromyalgia. Counsel also referred this Court to a decision in England of Alexander v Midland Bank PLC where again medical evidence was found to have established that a repetitive process of keying in at an encoding desk was the root cause of the ongoing Regional Fibromyalgia Syndrome which the claimant suffered from. Again the medical opinion supported the fact that there could be a progression to a more Regional Pain Syndrome from the initial specific OOS complaint. Finally Mr. Cadenhead submitted that in reality Dr Alchin's position is neutral. He is not able to provide any other reason for the appellant's ongoing RSD or Regional Pain Syndrome whereas Professor Glass, Professor Burry and to a lesser extent Mr Lester, all find that the characteristics and environment of the appellant's workplace caused or contributed to those problems. 14 Ms Cheyne, counsel for the first respondent, submits that the Review Officer reached the correct decision on the medical reports before her. She submits that there is nothing in the additional medical opinion which would affect that decision. Counsel further submits that it is more likely that the most reliable diagnosis about cause is that made by specialists who examined the appellant at an early stage rather than that of Professor Burry, made as it was some one and a half years after the appellant's claim was lodged. Counsel submits that the diagnosis of the appellant's current condition as a type of localised fibromyalgia is a matter which is not relevant to the question as to what the appellant was suffering from at the time she left her employment, and to the question of whether she has entitlement to cover under s 7 of the Act. Counsel also raises the credibility of the appellant herself and refers to various statements which are attributed to the appellant in the various reports and which are not accurate. She further says that some of these inaccuracies have formed a basis for opinion, particularly that of Professor Glass when he was led to believe that she would be required to carry out up to 11,000 movements a day. In that regard counsel submits that the opinion of Professor Glass, insofar as the criteria for $ 7(1)(c) is concerned, must be questionable as the evidence would establish that the number of repetitions performed by the appellant in a day were considerably less than that which Professor Glass relied on. Counsel finally submitted that if the Court was not satisfied on the evidence relating to s 7(1)(c) then it was open to it to remit the matter back to the Review Officer for further expert opinion and assessment. 15 Miss Robinson, counsel for the second respondent, the employer, submitted that neither Dr O'Donnell nor Dr Alchin attributed a causative link between the appellant's employment and her condition. She submits the reports and conclusions of Professor Glass and Professor Burry as to a direct attribution of the appellant's condition to her work are not tenable. Counsel places emphasis on seeming inaccuracies in the information provided by the appellant to the various medical specialists, particularly as to the amount of repetitions each day and the number of hours per week worked. Counsel submits that the specialist opinion of Professor Glass and Professor Burry ought to be looked at in the light of the fact that they did not visit her employment nor view her work set up. Finally counsel submitted that the findings of Dr O'Donnell and Dr Alchin that there was no causative link between the appellant's condition and her employment ought to be accepted. The greater weight should be attached to their reports rather than those of Professor Glass and Professor Burry based as they are, she contends on incorrect historical data provided by the appellant. Decision Appeals to this Court under the Accident Rehabilitation & Compensation Insurance Act 1992 are by way of rehearing. Section 92 of the Act says that where any question of fact is involved in any appeal the evidence taken before or received by the person hearing the review bearing on the subject shall be brought before the Court. In addition this Court has the power to hear such other evidence as it thinks fit. 16 In terms of s 92 of the Act I find that this Court is able to make its own findings of fact based on the evidence given before it or at the review hearing. Where any question of fact is involved this Court can make its own determination based on the evidence taken before the Review Officer or before the District Court. Thus in this present case I put to one side the findings of fact made by the Review Officer. She was in no better position to make findings of fact than this Court is, particularly as this Court has also had the opportunity of seeing and hearing the appellant in person. The appellant's claim for cover falls to be considered under s 7 of the Act. Section 7(1) poses a three-fold test, (a) and (c) being required to be answered in the affirmative and (b) in the negative. The appellant's history does not disclose any prior problems of the nature which she suffered during the time of her employment with the second respondent. Her previous employment would suggest that she was not involved in any highly repetitive activity. The evidence is clear that her employment task did have a significant component of repetition and both Dr O'Donnell and Dr Alchin accepted that her initial pain and discomfort to her right trapezius and right thumb were caused by that repetitive movement she was required to carry out in the course of her employment tasks. Thus I find that without even considering the opinions of Professor Glass and Professor Burry there is a clear evidence of a causative link between the appellant's employment tasks and the injury she sustained in the first instance. Following on from that initial pain Dr O'Donnell and Dr Alchin have diagnosed the appellant as having developed the distinctive condition of RSD/Regional Pain Syndrome. Dr O'Donnell's opinion, which he states is 17 the orthodox medical opinion, is that uncertainty exists about the cause or causes of such conditions and that it has not been shown that RSD is due to ergonomic or work related factors. Dr O'Donnell does say that such disease is associated at the onset with minor trauma and that whilst he could not directly relate the appellant's condition to her occupation or non occupational activities, he went on to state: "Although many would ascribe a cause and effect relationship between work of a repetitive nature and the development of such a disorder." Thus there is the established trauma of the right trapezius and right thumb base caused by her work but thereafter those two experts are somewhat "fence-sitting" although they accept that a cause and effect relationship between work of a repetitive nature and the development of the RSD disorder may be acknowledged. Professor Glass, in his first report, is prepared to ascribe a direct link between her RSD and her work. He stated that it was a classically described condition and causally related in her case to the repetitive trauma of her work. Whilst the second respondent's submissions as to some of the factual matters upon which Professor Glass based his opinion is noted, I find that when it comes to the essential issue, the fact that he may have believed that the appellant was engaged in a greater amount of repetitive activity than might have been the case, does not affect the validity of his opinion as the medical opinion from all specialists was that her employment tasks had caused the initial trauma as evidenced in her trapezius and right thumb. Thus it matters little whether in fact that trauma was caused because she did 5,000 18 or 10,000 repetitive movements a day. The number she actually did was sufficient to cause the strain and pain that was diagnosed. Professor Glass retreats somewhat from acceptance of the diagnosis of RSD and is supportive of Mr Lester's opinion and Professor Glass considered that Mr Lester's view is preferred as it reflected more clearly the nature of the appellant's work and the consequences, that is a shoulder condition with some calcification in the rotator cuff. He drew the direct causal connection that such a disorder was brought about by the particular repetitive activity the appellant undertook. Professor Burry similarly is of the opinion that the nature of the appellant's employment would put her at risk of developing a Regional Pain Syndrome and he similarly is not particularly convinced of the diagnosis of RSD. However whatever tag that is sought to be placed upon the appellant's condition, Professor Burry is clear that her injury is the result of her repetitive work and postural constraints in the workplace. He similarly has identified the particular property or characteristic that has caused her particular injury. If one adds together the combined wisdom of the medical experts who have given evidence on this question of causation then I find that it is established on the balance of probabilities that the requirements of s 7(1)(a) have been met. Insofar as s.7(1)(b) is concerned, the general opinion was that there were no non work activities carried on by the appellant which had the property or characteristic such as she experienced in her workplace to any material (or causative) extent and therefore I find that the test required to be satisfied in 7(1)(b) has been answered in the negative. It is noted that counsel for the first respondent accepts that the criteria has been met. 19 Insofar as 7(1)(c) is concerned, the only experts to directly address this issue were Dr Alchin and Professor Glass. Dr Alchin stated that whilst Regional Pain Syndrome and other chronic pain syndromes can occur spontaneously in the general community unrelated to work tasks, it can also occur in the workforce and in that sense he states that it is more likely to occur in people performing the appellant's type of work. Professor Glass posed the question, is the risk significantly greater to persons performing this task and answered: "This question is not answerable in terms of references to the literature. There are so many different tasks carried out in assembly work by so many different shape and size and age individuals who do it in varying ways, that one can only say that in this situation with this woman working as she did under the time pressure and circumstances described there was a significantly greater risk of developing her right wrist/shoulder condition." I interpret that answer to be giving an affirmative answer to the proposition that the risk of suffering the injury which the appellant suffered is significantly greater for persons performing the appellant's employment tasks in the environment that she did perform it than for persons who do not perform that employment task in that environment. That I find is the test and I find that the answer given by Professor Glass can be clearly construed as being an answer which satisfies the criteria of 7(1)(c). For the foregoing reasons therefore I find that the Corporation and the Review Officer were wrong to rule that the appellant was not entitled to cover under the Act. Those decisions are hereby revoked and the appellant is entitled to cover accordingly. Further, the appellant is entitled to costs which in this case I fix at $1,200, it being a case of some complexity involving considerable expert evidence. 20 Although the second respondent took an active part in this appeal I find that it was the decisions of the Corporation which brought about the necessity of an appeal to this Court and therefore I direct that the costs payable to the appellant be paid by the first respondent. DATED at WELLINGTON this > day of October . 1998 MJ Beattie District Court Judge .- warwood.doc