Major v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 89 199 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 ROCHELLE MAJOR DCA 412/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 24th day of February 1999 APPEARANCES: Ms F Taylor, advocate for appellant Mr M B Mccarthy, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlements under the Act on the basis that her ongoing incapacity and condition was not as consequence of personal injury by gradual process in respect of which she had been granted cover. 2 Background The appellant is now aged 25 years. In 1991 she commenced employment with the Inland Revenue Department in a clerical position but after about six months she progressed to the position of an assessment officer and as such her work tasks involved a substantial amount of computer work. It seems common ground that the majority of her working time was taken up with keyboard work associated with a computer. About a year after commencing employment she began to notice aches and pains at the end of a working day, initially in the neck but subsequently in her shoulders and arms. The symptoms gradually worsened and by early 1994 she sought medical attention from her GP and in June 1994 a claim for cover under the Act was lodged in respect of an OOS injury to both arms and shoulders. The claim was considered under section 7 of the Act and the respondent carried out an investigation including work site visit and assessment. The outcome of that assessment was confirmation that her work tasks and her work environment were causative of her tension and strain in her fingers, forearms and shoulders. This assessment from an occupational therapist suggested certain improvements to her workstation and measures which the appellant should adopt to assist with the prevention of further repetitive strain. These included micro pauses and postural stretches and exercises. The appellant did continue on in her employment but on reduced hours because of the ongoing effects of her injury and she continued to receive treatment, principally by way of physiotherapy, for her injuries. I:\AUTHORIT\BEATTIE\R.Major.doc It seems that her condition did not sufficiently improve and in July 1996 she was medically retired from her employment with IRD, still suffering considerably from her injuries which were preventing her from carrying out her work tasks. Subsequently the appellant obtained part-time employment as a shop assistant and continued to receive weekly compensation with the appropriate abatement. In February 1997 the respondent sought to have the appellant's medical condition reviewed and directed that she be seen by Colin Hooker, Orthopaedic Surgeon, and Mr Hooker examined the appellant on 14 April 1997. Mr Hooker reported to the Corporation as follows: Miss Major is a 23 year old woman who, in my opinion, on the basis of her full-time clerical position with the use of a computer keyboard, developed symptoms that could be considered to be on the basis of irritation of the soft tissues in the arms and neck by the repetitive movement of those parts. Miss Major developed increasingly severe pain to the point where she had to go off work. The pain has subsided to a large degree, but not completely. Clinical examination at this stage reveals no objective abnormality. To address now the questions you have posed in your request for this report, the following additional comments are offered. 1. Miss Major's present condition is detailed above. There is no significant objective abnormality, but Miss Major continues to experience symptoms as described which, in my opinion, must be accepted as genuine and are limiting her physical capabilities, particularly in terms of work sitting at a desk using a computer. 2. The pain Miss Major experiences in her shoulders is a soft tissue reaction to the repetitive use of the limbs. It is not referred from her spine. 3. In my opinion, the alleged Schuermann's disease is not particularly relevant to this current condition. 4 . As has been indicated above, in my opinion, Miss Major, as seen by me today, is not fit for full time work as a clerk, particularly involving computer work. She is, however, in my opinion, fit for part time light work where she would not be required to use her upper limbs repetitively for more than short periods, and where she could get up and move about from time to time. I:\AUTHORIT \BEATTIE\R.Major.doc A 5. Miss Major was a person of small physique with poorly developed musculature and it is possible that this has been a contributing factor to her developing the symptoms described. There are not, to my knowledge, any other relevant factors. 6 . As indicated above, in my opinion, Miss Major, as seen by me today, is fit to resume part-time light work where there was not repetitive use of the upper limbs and where she could get up ad move about from time to time. In June 1997 the respondent sought further opinion on the appellant's condition and this time requested Dr Martin Robb, whose specialty was occupational medicine, to examine her and report. In his report dated 26 July 1997 to the respondent Dr Robb stated, inter alia, as follows: On examination she has 14 of the 18 tender points required by the American Rheumatology College for the diagnosis of fibromyalgia. These tender points include elbows, shoulders, upper back, neck, lower back, buttocks and right hip. In summary she has signs and symptoms consistent with fibromyalgia. Scheurmann's disease, previously noted on x-rays, has no relation to her present incapacity. The appellant's case was next referred to Dr Monigatti, Occupational Physician and Director of ACC Workwise. For the purposes of his opinion he had the reports of Dr Robb and Mr Hooker. It was Dr Monigatti's advice that the appellant's fibromyalgia was not in any way associated with her work, that there was no causal connection between work tasks and the development of fibromyalgia. He contended that it was a pre-existing state and that whilst at first these tender points may be latent and not spontaneously painful, their presence arises not from anthropometrics or ergonomics but from personality type, personal risk factors and individual responses to stress. He did state however that trauma or work which possesses various properties or characteristics such as repetitive or sustained/constrained postures can activate these points from their subclinical latent state. He said however that the triggering stimulis is incidental and is not pathological in itself, at least not as far as the fibromyalgia is I:\AUTHORIT\BEATTIE\R. Major.doc concerned as this condition is characterised by the absence of evidence of tissue injury. In summary Dr Monigatti advised that the predominant reason for the appellant's incapacity was chronic pain that cannot reasonably be attributed to the physical demands of her work. Her current condition should not be deemed an occupational injury and she was therefore not entitled to cover. On the basis of Dr Monigatti's advice the respondent did, by decision letter of 21 November 1997 advise that entitlements under the Act would cease on the basis that the appellant's ongoing incapacity was not related to her injury of 7 June 1994. The appellant sought a review of that decision and for the purposes of that review sought the opinion of Dr EW Dryson, Occupational Medicine specialist and Dr Dryson examined the appellant on 20 February 1998 and thereupon reported to the appellant's advocate. It was Dr Dryson's advice that it was a combination of her work tasks and ergonomic defects at her workplace which were causative of her injury and that initial injury has progressed to post-traumatic fibromyalgia. The respondent introduced two further reports from Dr Monigatti for the purposes of the review, such reports being dated 6 March 1998 and 8 July 1998 respectively. In that latter report Dr Monigatti answers various propositions propounded by Dr Dryson and in that latter report Dr Monigatti refutes Dr Dryson's contention that fibromyalgia can be allied to workplace factors and predicates an occupational cause. In support of his contention Dr Monigatti refers to the majority finding at the ACC sponsored symposium on fibromyalgia and that the majority opinion did not support a causative association between trauma and fibromyalgia. In her decision the Review Officer considered the competing arguments of Dr Monigatti and Dr Dryson and also considered the findings of the report of that symposium. She found that the medical evidence predominantly indicates that I:\AUTHORIT\BEATTIE\R.Major.doc 6 chronic pain syndrome or fibromyalgia has not been established on the balance of probabilities to be causally related to any occupational tasks. She stated she must be guided by the prevailing medical opinion and she ruled that on the balance of probabilities the ongoing incapacity of the appellant cannot reasonably be ascribed to a work overuse injury suffered in 1992 or 1993 that should have resolved within a matter of weeks. It is that decision which the appellant appeals to this Court. Submissions Ms Taylor, advocate for the appellant, submitted that the opinions of Mr Hooker and Dr Dryson, should be preferred. Both of them examined the appellant and made specific causative links between her original injury and her current symptoms and incapacity. She submitted that Dr Monigatti was simply giving his opinion generally on fibromyalgia rather than any specific evidence relating to the appellant. She further noted that whilst Dr Robb made a diagnosis of fibromyalgia he did not express any opinion on the relationship between the development of that condition and the injury sustained from the appellant's employment tasks and environment. Mr Mccarthy, counsel for the respondent, submitted that the opinion of Dr Monigatti should be preferred. He refers to Dr Monigatti's opinion being in accord with the majority consensus at the symposium on the work-relatedness of fibromyalgia and that the majority opinion did not support a causative association between trauma and fibromyalgia. Counsel further submitted that the condition of fibromyalgia simply has a temporal association with the appellant's work but not a causative link. It is on the basis of that submission that counsel submitted that the appellant could not be said to be suffering from personal injury as defined in section 4 of the Act. In written submissions counsel for the respondent submitted that even if the Court were to find that the appellant had suffered personal injury, then nevertheless the appellant I:\AUTHORIT\BEATTIE\R.Major.doc 7 was not entitled to cover under section 7 of the Act as she could not satisfy the criteria of the various subsections of section 7. Decision The Court has already identified the issue for determination in this appeal and has stated as such at the commencement of this judgment. I find that this matter needs to be emphasised as a considerable amount of the respondent's written submissions, and touched on as they were in counsels' oral submissions at the hearing of this appeal, were in support of the contention that the appellant had not suffered personal injury by accident, but if so, she could not satisfy the provisions of section 7 of the Act. This I find to be not the issue for determination before this Court. In 1994 the appellant made a claim for cover for bilateral OOS to arms and shoulders said to have arisen in the course of her employment with IRD. That claim was investigated and on an examination of the file I find that proper and sufficient investigation was carried out into the circumstances of the claim and the appellant was granted cover for that injury after that investigation. The file further discloses that for the next three years the appellant enjoyed the benefits of cover, both in terms of vocational and physical rehabilitation. It seems as though it was not until mid 1997 that the respondent first considered the question of whether the appellant's present and ongoing symptoms were a continuation of the injury for which she had been granted cover. It was at that time that the respondent referred her to Dr Robb for examination and opinion. The Court notes that following receipt of Dr Robb's opinion, and then that of Dr Monigatti, that the respondent did in its decision letter of 21 November advise that it was ceasing weekly compensation on the basis that the appellant's ongoing incapacity was not directly related to her injury of 7 June 1994. I:\AUTHORIT\BEATTIE\R.Major.doc 00 It is to be noted that the date of 7 June 1994 was fixed as this is the date stated on the original claim for cover. Although the letter does not say so, the Court can only assume that the decision to discontinue entitlements was made pursuant to section 73(1) of the Act. Certainly, the decision of the respondent was not a decision said to have been made pursuant to section 67A of the Act, which is the provision of the Act where the Corporation seeks to revise any decision it has made and which it subsequently finds it may have made in error. Thus the position must be that this appellant had a bona fide gradual process injury which was accepted as such by the respondent and in respect of which she received benefits and entitlements and it cannot be that the respondent can now seek to contend that the provisions of section 7 of the Act had not been met. In those circumstances I therefore find that considerations in this appeal of the applicability or otherwise of section 7 cannot arise and the only question is whether the appellant's ongoing symptoms and condition are causally connected with the gradual process injury for which she received cover. From that perspective the Court firstly has the opinion of Mr Hooker, an experienced Orthopaedic Surgeon who has given evidence on numerous occasions to this Court, many of which occasions have been at the behest of the respondent. Mr Hooker's opinion has been set out earlier in this judgment and the crux of his opinion is that the appellant developed symptoms that could be considered to be the irritation of the soft tissues in the arms and neck caused by the repetitive movement of those parts whilst carrying out her employment tasks. Thus Mr Hooker finds a direct correlation between the appellant's condition as he examined it in April 1997 with that which the appellant's GP had identified in June 1994. It is also to be noted that Mr Hooker has identified as a contributing factor, the appellant's small physique and poorly developed musculature. I:\AUTHORIT\BEATTIE\R.Major.doc 9 Dr Robb has advised that the appellant has signs and symptoms consistent with fibromyalgia. His narration of her history does not suggest that he identifies any cut- off or cessation of the injury which the appellant's GP and Mr Hooker identified and the symptoms which she displayed when he examined her in July 1997. It is to be noted that whilst he does not say one way or the other about her work tasks being associated with her condition, he does support her rehabilitative programme of work which involved alternative duties and gradual increase in that type of work. I infer from that that Dr Robb is in agreement with her not returning to any form of employment that involved keyboard or other repetitive work such as she formerly carried out in her employment with IRD. The main area of disagreement is that between Dr Monigatti and Dr Dryson over whether the condition of fibromyalgia can have its origin in some trauma such as this appellant had from her OOS injury. In this particular case two of the main protagonists in the fibromyalgia debate are in effect going "head to head" in propounding their respective viewpoints. As this case may have importance beyond that of the parties concerned I propose to set out the respective arguments of Drs Monigatti and Dryson so that the area of controversy can be clearly identified. Dr Monigatti, in his advice to the respondent of 17 November 1997, stated inter alia: It is usually argued that a work-related event causes a localised sprain or strain and that the fibromyalgia develops directly and progressively from there. This is concluded on the basis of persistence of symptoms from that time onwards. However, a temporal association is not, by itself, proof of cause and effect. It does not allow a distinction to be made between causation of a condition, and the disclosure or aggravation of a condition which is caused by something else. The provoking of symptoms does not equate to the causing of injury. A useful analogy is angina, which is exertional chest pain indicative of underlying heart disease. Heavy work may induce angina (a symptom) but one cannot conclude from this that heart disease (an illness) is caused or even aggravated by occupation. The prevailing view is that the tender points on which fibromyalgia is diagnosed are present as a pre-existing state, causally based on factors I:\AUTHORIT\BEATTIE\R.Major.doc 10 unrelated to the work environment. These points are at first latent and not spontaneously painful. Their presence arises not from anthropometrics or ergonomics but from personality type, personal risk factors, and individual responses to stress. Trauma, or work which possesses various properties or characteristics such as repetitive movement or sustained/constrained postures, can activate these points from their sub-clinical latent state. The triggering stimulus is incidental and is not pathological in itself, at least not as far as the fibromyalgia is concerned, as this condition is characterised by the absence of evidence of tissue injury. Therafter, the process is self-sustaining and progressive, and results in a state of heightened pain sensitivity. The fact that the condition usually crescendoes despite reduction of the provocative activity, and remains unresponsive to therapeutic modalities, supports the view that fibromyalgia is a separate condition unrelated to the work process. For the purposes of ACC cover, trauma or work must cause or contribute to injury, not just cause symptoms. The activation of latent tender points is not an injurious action, it is a symptom-provoking one, and as such should not qualify for cover. Even if fibromyalgia did arise from occupation, it is unlikely to compensable. A person who injures his or her lower back at work and subsequently has localised and/or radicular referred pain to a limb with limited movement is reasonably seen to have a compensable occupational condition. These are biomechanically plausible effect of the injury. Forearm extensor tendinitis is a credible consequence of prolonged computer work. However, the widespread pain and systemic symptoms often associated with fibromyalgia such as sleep disturbance, fatigue, circulatory disturbances and headache are not biomechanically plausible effects of such injury. This complex of symptoms may be the consequence of a medical or psychological illness or a psychological reaction to the injury, but none of these condition is compensable under current ACC legislation. The importance of psychological factors in the genesis of fibromyalgia is supported by the evidence-based medical treatment for the condition which is one of stress management, attention to sleep deprivation, introduction of a graduated cardiovascular fitness regimen and the preservation of musculoskeletal strength. Passive physiotherapy is ineffective. In order for sufferers to gain control of their symptoms they must conquer their fear- avoidance behaviours, modify their pain beliefs and make a paradigm shift towards positive health behaviours. I suggest that Ms Major's work injury in 1991 had a minor diminutive role in the development of her fibromyalgia, one of aggravation only and not causation. Her condition has arisen to a much greater extent from personality traits, personal risk factors and individual reaction to stress than from any properties or characteristics to which she was exposed in her work activities. The predominant reason for her incapacity is chronic pain that cannot be reasonably attributed to the physical demands of her work. Ms Major's I:AUTHORIT \BEATTIE\R.Major.doc 11 current condition should not be deemed an occupational injury, and in my opinion she should therefore be disentitled from ACC cover. When the appellant was referred to Dr Dryson he examined her and detailed the results of his examination in his report of 11 March. He then went on to state as follows: These findings are those of a fibromyalgia syndrome. There is a form of fibromyalgia termed post traumatic fibromyalgia where sensitisation of the pain tracts in the spinal cord follows an initial injury, the net result is that pain is more easily triggered on muscular activity and extends to wider areas of the body. From her description of her job it appears to me that Rochelle's job at the Inland Revenue was not only arduous, with some very long days, but that there were also ergonomic defects at the time when her symptoms came on. In addition there appears to be no non-work factors such as domestic stress or repetitive non-work activities which would be considered causative. In my opinion therefore her job has been the cause of her initial injury and subsequent post traumatic fibromyalgia. I have read the report by Dr Martin Robb dated 26 July 1997. He also diagnosed fibromyalgia syndrome. Dr Robb's report was subsequently commented on by Dr Monigatti of the ACC Workwise Clinic, on 17 November 1997. Dr Monigatti has however not actually seen Rochelle. It is fair to say that there is a dispute in medical circles as to the exact nature of fibromyalgia. Dr Monigatti for example argues that there is no tissue injury, that the situation is pre-existing and is really unmasked by the work activity and that psychological factors such as personality are paramount in the genesis of the condition. This is however only one side of the coin. There is increasing evidence in the medical literature that fibromyalgia and other pain syndromes are associated with wide ranging changes in the body including changes in levels of nervous system chemicals such as substance P, somatomedin C, hormones such ACTH, changes in regional cerebral blood flow, and altered sensation in pain pathways. In addition the tender points which are characteristic of fibromyalgia have been shown in research to be abolished by morphine and lignocaine but not by saline showing that they are in fact real entities and not merely imaginary. To say that they were there before is begging the question since if they are not noticeable prior to the unmasking event no-one can say that they were or were not there. The one study which has tried to explore the relationship between fibromyalgia and different occupations shows that, in that study at any rate, there were larger numbers of people in office work reporting symptoms than for example housewives. Although this may represent an element of reporting I:\AUTHORIT\BEATTIE\R. Major.doc 12 bias it is completely in line with experience of practitioners such as myself who see certain occupations dominating the patients seen in our clinics. The fact that people have apparently been completely normal, and then develop pain and stiffness of muscles following prolonged and unnatural repetitive activity certainly strongly suggests a work causation. Fibromyalgia syndrome is often associated with related conditions such as irritable bowel syndrome, irritable bladder, migraines, dysmenorrhoea, and Raynaud's disease, and these may precede the onset of pain by some years. If it were the case that these associated conditions preceded the employment related activity then there would be an argument for saying that there was a pre-existing condition. It should be noted however that none of these conditions were present in Rochelle's case prior to employment or indeed subsequently and that there is absolutely no evidence therefore to say that she had a pre-existing condition which was unmasked by the employment. The conclusion is that if she had not been doing that particular task in that particular job at that particular time she would not have developed fibromyalgia. In terms of cover under the Act therefore it is clear that Rochelle has in fact suffered an injury in the shape of painful, stiff, sore muscles to say nothing of altered pain sensation and the various other biochemical abnormalities which are known to be associated with fibromyalgia. She had a characteristic of her job namely electronic keyboard use which was excessive and completely out of proportion to any repetitive activities she may have been undertaking in her non work life such that there was clearly an increased risk of developing musculoskeletal symptoms and pain symptoms in this particular work. There are no non work activities which can be identified as being significantly causative. Dr Monigatti responded to Dr Dryson's report and it seems as though Dr Monigatti's criticism of Dr Dryson's report is that Dryson is giving his opinion as to a causal relationship when the actual facts of the appellant's injury do not allow for it. It seems as though Dr Monigatti's information as to the history of this appellant and her battle with her injury may not have been known, as Dr Monigatti states: Dr Dryson states that Ms Major's symptoms developed in 1992 and 'appeared to correspond to an increased workload'. He also states that the symptoms increased in severity over a six-month period' and that Ms Major ceased work on medical grounds in July 1996. No account is given of the intervening years to clarify whether the relationship between workload and symptoms was causative, aggravatory, or casual. Dr Dryson describes symptoms of pain in the neck and shoulder on the left, extending to the left arm and then moving to the right. The symptoms became I:\AUTHORIT\BEATTIE\R.Major.doc 13 progressively more severe over a period of months. This is a history of onset typical of many cases of chronic pain syndrome. Dr Dryson seems to view Ms Major's pain as implicit of overuse injury, but there is no history here to suggest a discrete antecedent injury that may have acted to sensitise Ms Major to a chronic pain syndromel Such sensitisation is the basis of the argument for entitlement under the ARCI Act, 1992. Pain by itself is not compensable, as it is a symptom, not an injury. The onset of pain in one or more parts of the body that then generalises, without any evidence of injury, cannot be a compensable outcome of keyboard work in isolation. The only way in which it would be possible to compensate someone with chronic widespread pain supposedly arising from an activity such as keyboard work would be if that pain were caused by an injury otherwise compensable under the Act. This was the majority view expressed at the recent Consensus meeting on fibromyalgia, upon which the Corporation has based its policy. Of the 21 attendees there were two dissenters, Dr Dryson and Dr Wigley. Their view was that chronic pain syndromes can exist as a result of sensitisation from peripheral stimuli (eg work factors) rather than from injury, and are in that respect compensable, as is being argued here. Dr Dryson cites a paper by Waylonis (1994), showing different rates of fibromyalgia in different occupations, as evidence that occupational factors are contributory. Waylonis himself makes no such claim, and I am afraid that there is more than an 'element of reporting bias' to be considered when evaluating Dr Dryson's use of this study for this purpose. ... Waylonis specifically cautioned against inferring cause from the data, and in my view, it is mischievous to do so. Dr Dryson omits to mention the large volume of research that has tried, unsuccessfully, to establish a causative association between work and fibromyalgia. Indeed, with time, the change of finding such a link become less, not more, likely. Dr Dryson supports his argument by referring to his own clinical experience, but his implication that is a collective one belies the outcome of the Consensus report. I note from these last statements by Dr Monigatti that he is giving his opinion on the basis that there is no evidence of a separate and identifiable injury from repetitive work tasks, or to use his actual words "there was no evidence of a discrete antecedent injury that may have acted to sensitise Ms Major to a chronic pain syndrome". It seems that Dr Dryson only had reference to Mr Hooker's report but not to the earlier medical evidence which identified an injury which was the strain to the extensor I:\AUTHORIT\BEATTIE\R.Major.doc 14 muscles in her forearms and shoulders. This was the identifiable and diagnosed injury in respect of which the appellant was granted cover. The pain and tenderness from those locations was identified by Mr Hooker when he examined her in April 1997. He identified the injury and whilst it may be said that he could find no clinical abnormality in her upper and lower limbs or thoraco-lumbar spine I find that this did not mean that he did not diagnose injury which can be regarded as a discrete. The respondent recognised that this discrete injury was one that was compensable under the Act and duly granted cover to the appellant in respect thereof. The history of this appellant from the diagnosing of that discrete injury was that she continued in her employment, adapting as best she could to new practices which were given to her in order to minimise any further aggravation of that injury, but that despite her no doubt complying with those practices her injury did not improve and the point was reached in 1996 where she was obliged to give up the employment which contained the tasks which were at the very heart of the matter. From that scenario Dr Dryson contends that there is a causal as opposed to casual, relationship. Dr Monigatti seems to be suggesting that the appellant's work injury in 1991 may have had a minor diminutive role in the development of fibromyalgia but one of aggravation only and not causation. It seems as though that opinion has been formed from incomplete information also as although the appellant gave evidence that she first began experiencing symptoms in 1992, these did not reach the stage where she could stand it no longer under 1994 when she consulted her doctor. After that there is the evidence of trying to adjust to the circumstances of her injury and then having to give up work in 1996. This seems to be a different situation than that upon which Dr Monigatti is basing his opinion. I:\AUTHORIT\BEATTIE\R.Major.doc 15 Another basic tenet of Dr Monigatti's opinion is that tender points upon which fibromyalgia is diagnosed are present as a pre-existing state causally based on factors unrelated to the work environment. He says that they are activated by any number of causes and he does say that repetitive movement for sustained/constrained postures can activate these points from their sub-clinical latent state. He says however that the triggering stimulis is incidental and is not pathological in itself. However he does go on to acknowledge that for purposes of cover under the Act trauma or work which causes or contributes to injury would be covered, but not if it just caused symptoms. In other words, he says the activation of latent tender points is not an injurious action. In this case there is no evidence that this appellant simply suffered the activation of latent tender points although it is acknowledged from the two specialists who examined her with particular fibromyalgia knowledge, that both indicated that the appellant did have sufficient of the tender points identified to come within the American Rheumatology College guide for diagnosis of fibromyalgia. As is noted by Dr Dryson, there is no evidence that these fibromyalgia tender points were in a latent pre-existing state prior to the onset of her injury. The debate which has occurred in this case between two respected experts in the field of occupational medicine has in fact highlighted the somewhat uncertain state of research and knowledge into the area of fibromyalgia and its relationship with occupational based repetitive strain injury. These two experts have conducted a debate of sorts within reports to their respective clients but in no case has their evidence been subjected to the scrutiny of cross-examination or elucidation in the courtroom. The debate on fibromyalgia and its relationship with occupation overuse syndrome has been considered by this Court in an appellate situation before, namely in the decision of Saddleton Decision 68/97, a decision of His Honour Judge Ongley. In I:\AUTHORIT\BEATTIE\R. Major.doc 16 that decision the Court had the benefit of the opinion of another person in the forefront of the fibromyalgia debate, namely, Dr WED Turner, a specialist in occupational medicine. I think it helpful to reproduce a passage from his evidence in that decision as I think that it is of general application, and indeed the factual circumstances of the appellant in that case are not dissimilar to those of Ms Major. On page 6 of the decision Dr Turner states as follows: As you quite correctly pointed out Julie's problem began with painful neck and shoulders whilst carrying out data entry and truck driving in 1991 the pain eventually spreading to involve both arms. In 1994 she came under significant work related stress the condition exacerbating markedly to the point where she was unable to continue working and has remained off work since this time. Despite this her condition has progressed so she now suffers from a fibromyalgia pain syndrome with widespread symptoms involving her shoulders, arms and entire back including the thoracic and lumbar spine. On examination I was able to confirm that she had a clinical diagnosis of fibromyalgia with 18 out of 18 Smythe tender points. The relationship of fibromyalgia and the occupational overuse syndrome were the subject of a conference held in June 1994 in Vancouver. The conference was attended by world experts the conclusion being that the precipitation of symptoms mostly follows stress from physical illness, trauma or emotional strain. The condition peaks in the 30-50 age group and no specific pathology is present. Major symptoms include sleep disturbance, widespread pain in a specific distribution, fatigue, morning stiffness, low tolerance to physical stress and treatment resistance. The condition is considered a complex connection of the psyche and soma producing a viscous (sic) cycle of psychological disturbance which in term (sic) produces inactivity, pain, sleep disturbance and further psychological disturbance. The actual cause of the condition is unknown but a genetic pre-disposition is often seen, patients presenting as self driven, intense, compulsive, over conscientious with over involvement in multiple activities. Laboratory studies show increased substance P, reduced serotonin and tryptophan levels with impairment of the hypotholamic - purtuity - adrenal [HPA] axis resulting in reduced corisol and growth hormone secretion and reduced ATP levels and skeletal muscles. In your letter you ask me to consider whether Julie is still incapacitated in part due to personal injury. I think it is extremely difficult to be totally definitive about the contribution to her symptoms from personal injury leading to the occupational overuse syndrome or the fibromyalgia pain syndrome. One can however say with reasonable conviction that the large majority of her symptoms are arising from the fibromyalgia pain syndromes and since there is a tenuous link between this and OOS one must conclude that fibromyalgia is I:\AUTHORIT\BEATTIE\R.Major.doc 17 the predominant cause of her current clinical state. Since fibromyalgia has an unknown aetiology, patients seem to have a genetic pre-disposition and are largely treatment resistant and more often than not precipitated by emotional stress it must be seen as a separate entity. In my view however the final decision as to Julie's eligibility for continuing earnings related compensation must rest with the Accident Compensation Corporation itself. It is noteworthy that Dr Turner also identified a number of symptoms which were noted by Dr Dryson to be not present in the case of Ms Major, such as sleep disturbance, fatigue, morning stiffness, low tolerance to physical stress. The experts seem to agree that the cause is multi-factorial and in the round I find that the current state of knowledge and evidence is that physical stress from occupational sources cannot be discounted and indeed there is the positive assertion by Dr Dryson and the statement by Dr Turner that there is a tenuous link between the two. There was sufficient evidence for Judge Ongley to find in favour of the appellant on the particular facts in Saddleton. The Court notes that the premises upon which Dr Monigatti based his opinion, namely that there was no identifiable discrete injury caused by workplace sourced physical stress, and that he was approaching the case purely and simply from the standpoint of whether or not cover should be granted to the appellant, are different from the position that this Court must take it from, namely that the appellant was granted cover for proper and identifiable personal injury by gradual process and that that discrete injury has progressed into a more generalised fibromyalgia condition, but nevertheless there is a link between the two. In the final analysis I find on the particular facts, and from a consideration of the standpoints from which the two principal protagonists have argued their view, and having regard to the factual background as this Court has determined it, that the appellant has established on balance that her present condition is causally connected to the personal injury for which she was granted cover. In those circumstances I find that the respondent was wrong to rule otherwise and to cancel her entitlement. I:\AUTHORIT\BEATTIE\R.Major.doc 18 Accordingly the decision of the respondent to so cancel entitlement is hereby revoked. The appellant is entitled to costs which I fix at $800. DATED at Wellington this 12 day of April 1999 Exalle M J Beattie< District Court Judge I:\AUTHORIT \BEATTIE\R.Major.doc