Pidgeon v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 240 /97 HELD AT CHRISTCHURCH 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 RAYMOND BURT PIDGEON Appellant (Appeal No. DCA 46/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of June 1997 APPEARANCES Andrew Cadenhead for appellant Clare Taylor for respondent Jo Appleyard for employer DECISION OF JUDGE D A ONGLEY This is an appeal against a review decision declining the appellant's claim for cover for a gradual process work injury under s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The claim related to two hand injuries, one being an injury to the little finger of the right hand and the other relating to a general disability affecting his hands. The little finger claim has been dealt with separately and does not form part of the appeal. The remaining claim has been diagnosed as nerve entrapment and bilateral flexor tendonitis. The medical questions are complicated further by the fact that the - 2. claimant suffered widespread spinal spondylitis, but there is a clear diagnosis that the hand pain did not emanate from that source. The appellant was employed on a wool press for about 30 years. His work involved the lifting of wool into bales and shifting the pressed bales weighing up to 350 lbs He was required to sew the cap on the bales using a baling needle. Continual jerking tight of the baling string caused his right little finger injury. He experienced aches and pain in both arms and neck as well as his lower back. He said that while he was still working in the wool press he took physiotherapy and anti-inflammatories, but the pains increased. He applied for other work and in 1986 obtained a job as night watchman after he had been waiting for two or three years for the position to become available. Although the injury occurred in 1986 or earlier, the appellant did not obtain treatment for it until 1994. His claim was considered under s 7 of the 1992 Act, the relevant parts of which are as follows: 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. The Corporation referred the appellant to Dr W E D Turner, occupational physician. Dr Turner reported on 24 March 1994 diagnosing bilateral flexor tendonitis with carpal tunnel like symptoms. The effects are more pronounced in the right hand than the left. Dr Turner considered that the actions involved in tightening and breaking the baling string imposed a force on all the fingers of his right hand, first causing some stiffness in the third, fourth and fifth fingers, gradually becoming worse in the last five years of his employment until 1986. At the time of Dr Turner's examination, the appellant had some improvement in his symptoms but still experienced activity related numbness particularly in his right hand with power gripping. Dr Turner said: "... He still however experiences activity related numbness and tingling particularly in his right hand with prolonged power gripping. For instance if he is doing any hammering for prolonged periods, he will experience symptoms with this activity. In this respect he has also noticed a degree of weakness in his right hand losing the power of his grip so the hammer will fly from his hand. - 3- ANY SIGNIFICANT NON-OCCUPATIONAL CAUSES He advises he is currently carrying out alterations to his bach at Duvachelles which has been going on for some 12 months. This activity has involved the building of retaining walls, extending the bedrooms and lounge. This work had involved concreting and boxing with frequent tool use namely, hammers, shovels, screw drivers, wood planes etc. He finds he has to be particularly careful since he is unable to fully flex the fifth finger into his palm when carrying out this work for fear of catching his finger on a sharp object. He advises he fixes bikes at CFM in his spare time spending 6 hours in the weekends every 2-3 weeks which he carries out on a voluntary basis for the Company. After mending a puncture he has found some difficulty rolling the tyres back onto the rims. He also has some difficulty tightening nuts. RELATIONSHIP TO ANY PRE-EXISTING CONDITION He describes no pre-existing problems in his right hand since taking on pressman work stating that in the past he has been able to milk cows by hand, carry out all sporting activities without any problems. He describes stiffness in his neck for some 10 years with difficulty of restriction of movement particularly rotation when backing his vehicle. Restriction of rotation appears to be equal on both sides. He describes no cervical whiplash injury. There is a family history of osteoarthritis, his father and grandfather having the condition and one brother having psoriatic arthropathy. ROLE OF WOOD CHOPPING IN EXACERBATION In advises he splits firewood for home use, carrying out this activity for about 3 weeks a year. He describes some difficulty with jarring into the right hand with power gripping particularly finding there is reduced force of grip with his inability to fold the fifth finger into the palm. Clearly his grip strength has been diminished for these sorts of activities where there is power gripping required in the face of impact loading.' Dr Turner thought that the arm symptoms including his pins and needles were caused by cervical osteoarthritis. He considered that the prognosis was quite satisfactory and there was no need for the appellant to give up work. Although Dr Turner referred to wood chopping and other non-work activities, he did not suggest that they were causative. Mr Cadenhead submitted that it might well be inferred that Dr Turner did not think those activities were non-employment risks under s 7(1)(b). The appellant told the Review Officer that until 1986 he was always stiffening up, but in 1986 he began to get pins and needles in his hands which spread to two fingers on both hands and more recently spread all over both hands. He said that he tried to remain active because he found that he had a tendency to stiffen up even after sitting in a chair for a short time. His concern, when he sought medical advice, was to find out whether he suffered from arthritis and find out what treatment he needed - 4. Before delivering his decision, the Review Officer obtained a report from Dr Julian Kirk, rheumatologist. That report assisted in isolating various elements of the appellant's deterioration in health. Dr Kirk was able to state categorically that the appellant had cervical spondylitis and was able to say that it had nothing to do with his hand problem. He summarised his findings as follows: "The findings are as follows with regard to this man's health in general: 1. There are various nerve entrapments in both of this man's forearm and wrists, primarily wrists. The ulnar nerve is compressed at the wrist in the right hand and requires surgical decompression. Possibly the ulnar nerve at the level of the elbow also although this is less definite. The left ulnar nerve it seems requires treatment on electrical as well as clinical grounds with decompression at the elbow level. The electrical findings of the left median nerve indicate that it should be decompressed at the level of the wrist. 2. The claimant suffers from flexor tendonitis, especially of the right hand, 3rd and 4th fingers. This appears to be an overuse phenomenon and would be normally relieved by rest from right-handed gripping activity. 3. Unrelated to 1 and 2, this man has cervical, thoracic and lumbar spondylosis which occurring at a young age in relation to his type of work is probably occupational in origin. 4. This man changed his style of occupation in 1986 primarily because of the arm symptoms which do not arise from the neck. It is unexplained why the arm neuritis and flexor tendonitis has progressed since the claimant went on to the night shift from the heavy job he was doing prior to that. Either the condition has progressed naturally or more likely there could be extra work factors involved but in any case it seems the condition did arise initially out of the course of his employment working with wool bales. 6. It would seem that this man's apparently occupational spinal condition is not being claimed for. 7. The little finger right hand appears to have a good occupational cause from breaking string and I understand this is being considered separately. Whoever does assessments for this problem would need to see the enclosed nerve conduction testing finding. I hope this report helps you in determining this claim. The essence of it is that it seems that this man's arm symptoms did commence in relation to his employment but why they have progressed is uncertain and that the cervical spine which has spondylosis is a separate issue and is not the cause of the arm symptoms." The Review Officer upheld the Corporation's decision that any injury to the appellant's hands was not caused exclusively by reason of his employment. The Review Officer referred to the account of the appellant's non-employment activities which had been recorded by Dr Turner in his report and compared it with Dr Kirk's comments and the appellant's own evidence. The evidence for the appellant at the - 5- review had been given mainly by the appellant's advocate. That is a difficulty that occasionally emerges from transcripts of review hearings. In this case, the Review Officer may not have been in a good position to form an opinion of the appellant's credibility, because it appears form the transcript that the appellant either had very little to say or was given very little chance to say it. Dealing with the available evidence, the Review Officer considered that there were significant inconsistent statements about the appellant's non-employment activities and she concluded that the material characteristic of repetitive gripping was a risk present to a material extent in the appellant's non-employment activities. On the hearing of the appeal, leave was given to introduce a further report which the appellant had obtained from Professor Bill Glass, occupational medicine specialist, and the appellant gave further oral evidence. An affidavit was received also from a neighbour, Mrs M J Aitken, tending to confirm that the appellant engaged other people to do heavy work at his bach and confined himself mainly to fetching and carrying. The appellant said in his evidence that he engaged in physical activity because he felt that he had to do something to avoid stiffening up. He said that he could not do prolonged power gripping and that was why he engaged outside help for his bach. He said that he did very little wood chopping, only splitting the odd piece of manuka and doing some kindling. The information given by the appellant to Dr Turner was not intended to mean that he chopped wood for three weeks a year, but only that he engaged in that activity about once a week for three weeks. The bike repair work was voluntary and was not part of his employment requirement. He did that also to keep active and avoid stiffening up. The appellant appeared a forthright and honest witness. The difficulty lies in understanding the extent of non-employment activity to which he refers. Ms Appleyard submitted, with good reason, that the account of work activities given by the appellant to Dr Turner is likely to be more reliable than subsequent accounts that he has given since the question of material non-employment activity has become prominent. Dr Kirk found the appellant to show no signs of deviousness, but he said: "Dr Turner's thorough report refers to non-occupational factors and describes the work which has been happening at Mr Pidgeon's bach at Duvauchelle which the claimant states has been happening for 5 years. Dr Turner describes a good deal of hand related activity in connection with this but the claimant makes light of this as a cause of his symptoms and names two people from Okains Bay who come in as contractors when he can afford it who do the heavier work and he states that he does some hammering but no more hard work than any other man would do in his non-work capacity working the equivalent of weekends on his bach. His hands are quite heavily calloused and it is not possible without observing the activities carried on in renovating the bach as to how much his hands are used because this may be relative but it is difficult to explain how the neuritic condition which led to his ceasing heavier work at CFM in 1986 has progressed so that at times it is now severe without some ongoing cause." - 6 - In his evidence, the appellant explained that the calluses originated from softening of his hands with lanolin through wool processing many years ago. That explanation is of some small significance, but it does not remove the reservation which Dr Kirk expressed. In his evidence the appellant said "the less I do the worse I get", a general subjective observation of the apparent effect of his various injuries, but the medical view is that the particular injury affecting his hand is, unfortunately, not improved by working with his hands. The appellant specified the subcontractors he employed in work on his bach. He did a lot of painting and gardening but says that he did not do the heavy work and he spent a good deal of his time relaxing. The appellant's evidence does leave uncertainty about the extent to which his everyday occupations caused any further injury or aggravation of the tendonitis. In relation to the work which is suspected of causing damage to the appellant's hands after 1986, Prof. Glass said: "Some concern is also expressed at the perpetuation of his hand symptoms following 1986 when his job became lighter and an explanation has been sought by the Corporation in non-work activities. It is, in my view, not a relevant explanation. It can be better argued that Mr Pidgeon has, as a result of his widespread spinal spondylosis, damaged peripheral nerves. As a consequence relatively minor stresses to his hands, wrists and elbows which would occur in the course of normal daily activities will result in his continuing symptoms." Prof. Glass based his opinion on the appellant's own account of his activities at the bach in Duvauchelles. That was an account resembling the account which the appellant gave in his recent evidence. Prof. Glass formed the view, from the history which he obtained from the appellant, that there was absolutely no evidence that over the last six years Mr Pidgeon had worked away with a hammer, saw or screwdriver for eight hours a day six or seven days a week as if he were still at work. That amount of physical work involving gripping has not really been suggested, rather that the appellant has engaged in work involving gripping, to an extent which explains the questions raised by Dr Kirk and Dr Turner as to why the symptoms should have persisted between 1986 and 1994. Counsel for the respondent submitted that the account given to Dr Turner was more reliable. I bear that in mind, as well as my own reasonably favourable impression of the appellant as a witness and also the remarks by Dr Kirk that the appellant did not seem devious in his reporting. It is probable that the appellant did get heavy work done by others and did avoid too much strenuous work with his hands. There remains an area of considerable doubt. In doing up his bach it is likely that the appellant would have had to engage in the kind of activity that is causative of his medical condition. The inference to be drawn from the evidence is that he did some work involving gripping of tools and the fact that he engaged contractors from time to time does not really assist in determining whether or not he did a significant amount of work himself, that is to say a "material extent" of the causative kind of activity in terms of s 7(1)(b). I requested counsel to supply further submissions addressing the question of the date by which the injury occurred. There is evidence that nerve entrapment and flexor tendonitis had developed substantially by 1986 when the appellant left his work with the wool press. The appellant acquired his bach in 1988. He said that he did not begin doing it up for a year or so, but the work which he did on the bach certainly pre-dated his first known medical treatment for the specific nerve entrapment injury. The respondent and the employer have submitted that's 7(5) of the Act determines the date of injury. Section 7(5) provides: (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) That the person first received treatment from a registered health professional for that personal injury as that personal injury; or (b) That person injury first resulted in the incapacity of the affected person - whichever first occurs. It appears that the claim had proceeded on that basis throughout There was no cogent evidence that the appellant had actually suffered incapacity at the time of ceasing his employment on the wool press although it appears that he left because he was not able to keep up the pace of the rest of his team. Prof. Glass noted that the appellant explained that increasing aches and pains in both arms, neck and low back region brought about his decision to cease work, and that his general practitioner had recommended three years earlier that he should give up his work on the wool press Neither is there any evidence that he received treatment for the hand injury in question before 1994. The claim was lodged and accepted as a 1994 claim and that is the basis on which it should be dealt with on appeal. The date of injury fixed in accordance with s 7(5) of the Act must be some time after the appellant renovated his holiday home and activity in the course of the renovation work must be taken into account under s 7(1)(b) if it is material to the type of injury for which the appellant has claimed. A strong reason for considering such activity to be material is found in the reservations expressed in the medical reports made available on the appeal. Dr Kirk said in his report: "Mr Pidgeon has noticed since 1986 that there is crepitus in the flexor tendons in both the right middle and 4th fingers which lack full power and also in the dorsum of the muscle in a local area in the right forearm. Crepitus tends to implicate tendon overuse and it seems to be conceivable from the work pattern described by Dr Turner in his report, which is detailed, that sewing and then having to tip over with a hook 300 lb bales would be likely to cause flexor tendon overuse and that whilst one would expect this to settle down when the work pattern ceased in 1986, it is conceivable that it could have become established and permanent, particularly if the work which was being done outside his official working capacity at CFM was significant. Mr Pidgeon feels that his work on his bach is not a significant contributor but this may be because he is used to extremely hard work at CFM and that it might be relatively lighter and the only way one could find this out might be to have to just go by what he describes, because he is not at all devious in giving a history, and tends to make light of activities which might have been lighter than those he had in what was extremely arduous at CFM. At the same time his hands are quite calloused and one does get the impression that he probably is still involved in a significant amount of non-work activity when he is working on his bach." Dr Kirk was obviously troubled in explaining how the 1986 symptoms could have persisted. Prof. Glass dismissed that area of concern and said that it was not a relevant explanation because it could be better argued that Mr Pidgeon has, as a result of his widespread spinal spondylosis, damaged peripheral nerves and that, as a consequence of relatively minor stresses to his hands, wrists and elbows which would occur in the course of normal daily activities, continuing symptoms would result. I reach the conclusion that the appeal must be dismissed. There is convincing evidence that the appellant had an injury by 1986 that was caused by the manual gripping and jarring movements associated with a wool press. The evidence indicates that the injury was essentially the same condition that was apparent to Dr Kirk when he examined the appellant in September 1994, although it is possible that there may have been some further deterioration of hand function. The operation of s 7(5) of the Act means that the Corporation has to be satisfied that the characteristic of the appellant's work which originally caused the injury was not present to a material extent in his non-employment activities up to 1994 when he first received treatment. Even taking account of the appellant's own evidence, it appears that repetitive gripping was quite likely to have present in his non-work activities although he avoided particularly arduous work which he was unable to perform. It can be reasonably inferred, consistently with his own evidence, that he did what he could, and must therefore have performed repetitive gripping activity to some extent. The question whether it was a material extent is answered partly by the views of Dr Kirk and Dr Turner, both of whom were concerned that his ongoing activities played a part in the persisting symptoms of the earlier injury. On the whole of the evidence I cannot be satisfied that the requirement of s 7(1)(b) is established. The appeal is therefore dismissed. DATED at WELLINGTON this 2Ist day of NOVEMBER 1997 D A Ongley District Court Judge