Gapuzan v Accident Compensation Corporation

IN THE DISTRICT COURT AT NELSON [2016] NZACC 124 ACR 585/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ROSAURO GAPUZAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 14 March 2016 Appearances: S Barclay for the appellant T Smith for the respondent Judgment: 29 April 2016 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This appeal involves a claim for a work related gradual process injury. [2] That means, that the test in respect of personal injury caused by a work related gradual process set out in s 30 of the Accident Compensation Act 2001 ("the Act") has application. [3] It is not in dispute, that the appellant has suffered a personal injury in terms of the Act, namely right lateral epicondylitis (also known as tennis elbow). The issue is whether the three part test set out in s 30 has been established by the appellant. [4] The relevant part of the test in s 30 is contained in s 30(2) of the Act namely: (2) The circumstances are - (a) The person - i) Performs an employment task that has a particular property or characteristic or (ii) Is employed in an environment that has a particular property or characteristic and (b) The particular property or characteristic - Causes, or contributes to the cause of, the personal injury; and ii) Is not found to any material extent in the non-employment activities or environment of the person; and (ifi) May or may not be present throughout the whole of the person's employment and The risk of suffering the personal injury - (i) Is significantly greater for persons who perform the employment task than for persons who do not perform it; or (ii) Is significantly greater for person who are employed in that type of environment than for persons who are not. [5] Generally the focus is on causation and, as Panckhurst J said in B v Accident Rehabilitation and Compensation Insurance Corporation in relation to s 7 of the 1992 Act which is in general the same as the present s 30: The essential focus of this section is upon causation. Hence it begins: Personal injury shall be regarded as being caused by a gradual process ... only f ... Then follows the three cumulative statutory preconditions which must be satisfied. First that the employment task had a particular causative property or characteristic. Next that such property or characteristic is not materially found in the person's non employment activities. Third that persons performing in the particular employment task are known to be at significantly greater risk of suffering the injury in question. It follows that the onus upon a claimant is a particularly heavy one. ... unless there was a known significant risk to persons performing the employment task the case will not be recognised. [6] There is no issue in this case, about non employment activities, so the focus of intention is on the first and third of the three step tests, namely an examination of the [2000] NZAR 385 alleged causative property or characteristic of the work carried out and the issue of whether there is significantly greater risk. [7] Cases which help explain the appropriate approach, include Atkins v ACC and Cullen v ARIC. [8] Those cases demonstrate, that the third stage of the test needs to be considered on an objective basis, and in respect of the first test needs to be looked at from the point of view of the person performing the alleged causative activities and will necessarily involve consideration of competing medical evidence. [9] Cullen in particular, explains that the significant risk test involves a comparison between all occupations involving employment tasks the same characteristics as those undertaken by the appellant and other occupations not involving those particular employment tasks. 10] The approach of the Court where, as here, there is competing medical evidence is explained in Martin v ACC where Ronald Young J said: In assessing the medical evidence the reviewer and the District Court's job will be to apply a traditional approach to an analysis of the competing expert evidence. For example, how do the medical practitioner's particular qualifications and experience relate to the claimant's disability? What is the quality of the medical report including the thoroughness of the detail? There will be a range of other factors will be relevant in individual cases. [11] The High Court case of Ellwood v ACC makes it clear that the Court is required to give reasons for preferring the view of one expert over the other [12] While there was initially some lack of clarity about the history of right elbow problems, and/or symptoms, whether epicondylitis or anything else, that largely seems to have been clarified by the time of the appeal. In particular, one of the experts that the respondent substantially relies on, Dr Strack, a specialist N [2011] NZACC 112 [2004] NZAR 481 2009] 3 NZLR 701 [2007] NZAR 205 occupational physician, in a report for the Court, which was not before the reviewer largely clarifies that history. [13] The substantial medical dispute in this case to be resolved, is primarily between the views of Dr Strack which, coupled with comments from Dr Souter, a company occupational physician, support the proposition of there being no causal link or enhanced risk, which are in conflict with the views of a Dr Bowles, also an occupational physician, based in Australia. [14] Although I will comment in more detail about their respective reports, the essence of the difference between them is encapsulated in the following extracts: Firstly, from the last report of Dr Strack dated 1 December 2015, just over three months after the review decision from which this appeal arises, where he said: In brief I am not of the opinion that Mr Gapuzan's work at the Christchurch Engine Centre had properties of sufficient forceful manual activity to an extent that it would place him at an increased risk of developing right lateral epicondylitis when compared with those not undertaking this type of work Mr Gapuzan was undertaking prior to the onset of his most recent right elbow symptoms. Key additional points he made in that report, which will be expanded on later, was to note a previous history of right lateral epicondylitis, whilst working for Saudi Arabia Airlines earlier in the century, and That lateral epicondylitis is a longstanding condition in many patients and It may well be that the onset of right tennis elbow in late 2011 represents an exacerbation of ... previous right tennis elbow ... [15] This can be contrasted with a brief extract from Dr Bowles, in his report of 18 July 2012, (which obviously was considered by the reviewer). In that report, Dr Bowles was responding in part to earlier observations of Dr Strack. He said: My view is that the tendinopathy at the elbow is a result of repetitive stress on that tendon which is borne out in the medical literature. It is a degenerative process but the reason for the development of that process is repetitive loading whether in an occupational or recreational sense. [16] And: Given the history today ... there was a sudden change in activity, that activity was of a significant manual nature, requiring gripping and holding, then I would see that there is compelling medical evidence to support that the right elbow complaint in late 201 1 was a consequence of work activities in that the work activities would be viewed as causal factors. [17] Those extracts largely define the boundaries between the conflicting medical opinion in this case and require analysis of the type described in Martin. [18] To set those reports in fuller context, and to some extent expand, on the reasoning process evident behind the reports, I will now traverse firstly the largely agreed chronology of relevant events and then go into some more detail about the respective, conflicting, medical assessments. [19] The agreed chronology much of which is usefully set out in an appendix to the respondent's initial written submissions includes the following: In 2006 the appellant commenced employment as a kitter at the Christchurch Engine Centre. 20 May 2008 - the appellant lodged a claim for left epicondylitis - work related gradual process. 29 September 2008, following an analysis by Dr Porteous, the respondent accepted cover for that. 15 May 2009, the appellant lodged a claim for right rotator cuff sprain for a specific injury event. On 17 September 2009 the respondent declined cover for that following a report from Dr Mark Floyd. 16 June 2010, the appellant's GP, Dr Ostrino writes expressing a diagnosis of stress, tension, back pain and left elbow epicondylitis and recommends a review of work tasks 2 December 2011 the appellant submitted a claim, to one of right lateral epicondylitis, after seeing his GP, Dr Ackermann. A general incident report recorded "pain in elbow-right probable cause repetition task lifting, kitting in awkward position"/ In December 2011, Dr Souter became involved, an employee questionnaire was received, and on 19 December 2011 the appellant resigned. 13 December 2011 a medical practitioner questionnaire noted "sometime last year (aboutJune2010) I complained of back pain and right tennis elbow pain which I attributed to be assigned to painting". 16 December 2011, an ultrasound/x-ray of the right elbow revealed a small 3 mm partial thickness tear of common extensors tendon. On 13 January 2012, after obtaining an employer questionnaire, and a further communication from Dr Souter, the respondent declined cover. After a Review was lodged, Dr Strack was consulted and produced a report dated 26 March 2012. On 18 July 2012 following a request from the Appellant, Dr Bowles produced a report, which has been already referred to, and will be discussed in more detail. On 23 August 2012, a review decision was issued declining review. On 26 August 2012, there was a further comment by way of email, from Dr Bowles to the appellant's solicitors regarding causation issues. 30 September 2013, Dr Erickson an attendance in May 2009 "with a complaint of pain in his right shoulder and right elbow" but "no record of right elbow problems between June 2009 and injury in 2011". Finally, on 1 December 2015, there was the further report earlier referred to from Dr Strack. [20] Although the primary focus in this judgment will be on the conflicting specialist reports surrounding 201 1/2012 claim and related symptoms, it is necessary to go back further than that, as part of the respondent's case is that right elbow issues go back several years prior. [21] On 24 September 2008, Dr Porteous provided an occupational medical assessment to the respondent, directed at the claim for left epicondylitis. In the course of that report he alluded to an episode of right lateral epicondylitis in Saudi Arabia. Relevant extracts from that report include: At that time the appellant worked for Air New Zealand as an overhaul engineer stripping down engine components, inspecting them and then sending them off for repair. He was temporarily seconded to a different job but on return to the overhaul engine work had an onset of the first symptoms in his left elbow. The appellant told him that the work reconditioning of the turbine blades to which job he had been temporarily seconded for three or four months) required a significant amount of sanding of the blades. Sometimes he would have to grind, drill out rivets and hammer on the blades. The sanding was the major part of the work and generally he utilised his right hand. A couple of weeks after returning to the overhaul engine area, he developed an aching discomfort in his left elbow. The appellant "had a right lateral epicondylitis six years prior in Saudi Arabia. He said at the time he was doing lots of hammering". He told Dr Porteous that it "settled and then he said he has had no right elbow problems for six years". 22] Nearly a year later, on 27 August 2009 Dr Floyd, a specialist occupational physician in a report to the respondent, focusing on a right shoulder complaint, commented amongst other things as follows: The appellant is right hand dominant and presents with a right shoulder complaint which emerged in about February of 2009. That pain started to spread down to the lateral aspect of the right arm over the lateral elbow. That the symptoms were "a little bit similar" to the left epicondylitis issue but the difference was that with the left elbow he did not have a shoulder complaint. That with continuing pain over the top of the right shoulder which was recurring throughout that he continued to have elbow pain localised to the lateral elbow which "comes and goes". He said that the appellant found that "it is brought on somewhat unpredictably and in particular the scrubbing, cleaning actions". That apart from some neck stiffness in his past there was no other specific accident. He said: Mr Gapuzan came to New Zealand around three years eight months ago and gained work at the Air New Zealand Engine Centre operated by Pratt Whitney. He works in a variety of roles and we spent some time discussing his moves around the various parts in relationship to his musculoskeletal complaint. His primary role is that of an overhaul engineer where he was involved in disassembling an engine and essentially inspecting the components. He did describe some degree of reaching but that this is not sustained. With this work he could not identify for me any sustained, repetitive, elevated or abductor shoulder actions and advised that with this work he was not getting too much aggravation. He described around the time of the development of his left elbow complaint he was working an engine inspection and overhaul. As he was having difficulty with his left elbow but wanting to gain some more work he gained work in the cleaning area. With this he was involved in some repetitive scrubbing actions with his right hand but again could not identify sustained, repetitive forceful above shoulder height activity. ... to his mind it is the scrubbing action in the cleaning area that has brought on his shoulder complaint and his right elbow complaint. The general practitioner provided a letter from Dr Tim Rumball, an occupational physician from 31 March 2009. There is a note of reviewing him with regard to his right shoulder which to him, looked like an impingement syndrome without any marked rotator cuff weakness suggestive of a large tear with no specific event leading to it. [23] On 31 March 2009, Dr Rumball, an occupational physician described meeting with the appellant "in regard to a sore right shoulder which on examination looks like an impingement syndrome without any marked rotator cuff weakness suggestive of a large tear. Rosauro was unable to recall any specific events leading to this". [24] In his report, he described examining the work that the appellant carried out. He said: Once a week for between one and two hours he removed metal pieces (around 150mm long and 20mm wide) from around aircraft combustion chambers. This involves undoing around 200 small metal nuts and Rosauro uses a small spanner to do so. He reports that it was hurting to reach over to undo nuts from the far side of the chamber and I've asked him to turn the chamber so he's always working close to his body. For the rest of the week Rosauro's job involves inspecting the pieces removed which he does working at a desk using a mounted magnifying glass. He then puts data into a computer. Recently Rosauro had been helping with cleaning the metal parts removed from the combustion which involved scrubbing then with a wire brush. This is done on a bench at waist height ... on a Saturday and the occasional time during the week and reports that this activity made his shoulder sore. Although Dr Floyd was unable to read the general practitioner's written notes, he could decipher from a 16 June 2009 note, tendonitis right shoulder, lateral epicondylitis right elbow with a note of being tender above the lateral elbow, right elbow. He noted an x-ray ultrasound of the right shoulder from 15 May 2009 noted on x-ray, no glenohumeral abnormality, mild AC joint narrowing with mild bony irregularity on the undersurface of the acromion. There is no note of soft tissue calcification. Ultrasound scan noted moderate bursal thickening with bursal bunching and comment of subacromial bursitis with intact rotator cuff with the bursal injection should be considered. Although he found the appellant to be a "pleasant gentleman" and, was "trying his best to help me understand the nature of his condition", he observed "somewhat concerningly, for the type of work he does he seemed to have great difficulty with answering direct questions. I am not sure if this is a cultural issue (the appellant is Filipino) but at times appeared evasive". His concluding diagnosis was, that with a history of right shoulder impingement, he believed that the appellant had evidence of a right lateral epicondylitis. He observed: Of note Mr Gapuzan was somewhat fixated on the nature of his right elbow complaint indicating that his general practitioner thought it was all coming from his shoulder. He said: Reviewing Mr Gapuzan's work exposures here in New Zealand I cannot identify any sustained repetitive above shoulder height activity of the type that would typically cause a shoulder impingement condition. I therefore believe it is more likely that internal inherent features are contributing significantly to his impingement and that the activities of work have acted to aggravate this and bring on symptoms ... of note the x-ray reports indicates mild AC joint narrowing with mild bony irregularity on the undersurface of the acromion which would suggest an anatomical predisposition". He went on to say: Considering what is known with regard to shoulder musculoskeletal disorders in occupation and in particularly with regard to impingement I would not consider someone performing such work place tasks to be at a significantly greater risk of developing such a condition compared to someone not performing such work place tasks. [25] On 17 December 2009, the respondent advised the appellant that, based on opinion from Dr Floyd, the claim for right rotator cuff sprain as a work related gradual process condition, would not be covered because "there is no work task or factor in your work environment that can be identified as having caused your condition" and "the work you do and/or your work environment is not recognised as placing workers at a significantly greater risk of developing your medical condition". [26] It appears that that claim went no further, but a rehabilitation plan was signed off in June 2010, in respect of "arm/back pain", also noting, that the appellant had been put on alternative work due to HR issues, and that lifting devices would be used to avoid undue bending. [27] The next day 16 June 2010 Dr Ostrino the GP of the appellant wrote a note: Mr Gapuzan who is a patient under my care has been diagnosed to be suffering from: 1. Anxiety and stress. 2. Tension headache. 3. Musculoskeletal lower back pain. 4. Epicondylitis left elbow. His symptoms are apparently exacerbated by his work as an aircraft engineer and more recently as a painter. I would recommend that his work situation be reviewed and perhaps be modified as necessary. [28] On 7 December 2011 Dr Souter wrote to Dr Ackermann as follows: I saw Ross briefly on site today in my role as company occupational physician. I was accompanied by the occupational health nurse Ingrid Barclay who has been to Ross's workplace in the past before he started in this role. He is concerned about his right elbow pain in the context of his work tasks. Our records show he has a long history of right elbow pain (and a diagnosis of probable epicondylitis) which flares up from time to time. Currently his role is very varied with no repetitive work and in particular no forceful repetitive work, he does do some lifting and we talked to him about correct lifting to minimise elbow pain today. [29] Dr Souter arranged x-rays and ultrasound to clarify a diagnosis, and noted that she was "keen to assist in managing his elbow pain most effectively, however there are limited options for further alternate duties as his work is already considered low risk from an ergonomic perspective". [30] On 14 December 2011, Dr Souter in an email to the Engine Centre, further updated the position following an onsite meeting to try and address better management of work tasks to reduce the aggravation that the appellant said he was suffering. Key extracts from that email include: According to the work place review notes on file, Ross has given a history in the past of symptoms in his right elbow of this current nature that occurred when he worked at Saudi Arabia Airlines and was hammering. He did not disclose these relevant problems on pre-employment in relation to this if that is indeed the history (the form specifically asked about tennis elbow and other conditions of this nature). The other notes from his past work do not give any detail about this. In an email to me recently, Ross said that the symptoms in his right elbow had been going on for a year now (he said when they started he was doing alternative duties painting). We have no record I am aware of in regard to his right arm in these duties however these notes may exist elsewhere. In July 2008 there was a complaint. in relation to symptoms in his left elbow which Ross felt were caused by work tasks ... a work place assessment was completed ... I understand an ACC claim was raised at this time which I believe according to the notes on file was declined subsequently ... a workplace assessment was completed ... before Ross started to work in the CX area in January 2011. The purpose was to identify whether there were any potentially aggravating tasks in the area which were felt to be unmanageable for Ross given his history. The work was described as a mix of kitting and work station work. No significant problems were identified and Ross agreed at the time of the assessment that the work was suitable ... I understand from Ross that he feels he is doing more kitting recently in the last few months and that this has caused his flareup of symptoms. The letter, after canvassing other relevant surrounding circumstances, including a perception that the appellant "views any of our involvement with suspicion as to the intentions of our service", then recommended that there be follow up in respect of the right elbow pain as to management and treatment options, an independent workplace assessment, and that investigations into possible causal links be followed up. [31] Following further x-rays, ultrasound, and completion of a medical questionnaire on 13 January 2012, the respondent formally declined cover "for right tennis elbow and diagnosis later confirmed for partial tear common extensor tendon", as a work related gradual onset condition. [32] A review was sought by the appellant for that and, as part of the preparation for that, a lengthy report dated 26 March 2012, was prepared by Dr Strack. Then, started the exchange of opinions, that are the primary focus of this appeal, between Dr Strack and Dr Bowles, most of which, apart from the earlier mentioned final letter from Dr Strack in December 2015, were part of the material before the reviewer. Key extracts from Dr Strack's first report of 26 March 2012 include: The history recounted to him was of a first onset of symptoms in late November 2011 which were reported early in December. That he continued with his normal work noting that he had to lift heavy items and that he felt this was not his usual job as he had been previously involved in inspection tasks rather than kitting. Dr Strack observed: Mr Gapuzan appeared to be quite focused on a number of work related and employment related issues, that appeared to be unrelated to his right elbow. He appeared to be quite upset that he was not being employed as an aircraft inspector and he repeatedly indicated that he felt that the job he'd been given that involved kitting as well as spray painting were not jobs that he had been trained for. He went into some detail about the appellant told him about the kitting work from January 2011 including: The kitting role involves putting parts in a kit. The parts may include nuts, bolts, bearings, hubs, blades etc. they varied from light weights to heavy items which may weigh 15 kg to 22 kg. There were approximately 100 carts which hold all the different components of various motors. He would inspect these parts, and then push the cart onto an elevator. If large parts were involved they would have to be lifted and put on the cart to put them on the carts, and if they were heavy he would get assistance. In or about October 2011 two kitters left and so over the latter part of October/November 2011 the appellant was involved in undertaking kitting work on a full time basis and his front desk inspection role undertaken by somebody else. That Mr Gapuzan said he was kitting on a full time basis for about 1- 2 months before he noted the onset of right elbow pain. That: After he had reported this problem to his work Mr Gapuzan had three days off work before returning to kitting again. Mr Gapuzan expressed significant unhappiness to me and he was put back on kitting and he apparently filed a personal grievance with his employer. It appeared that there was significant conflict in the workplace and at times it was difficult to get Mr Gapuzan to focus on the issues relating to his elbow as opposed to perceived employment relationship issues and problems. The appellant spoke of depression and stress and generally unfair treatment from his employer. The appellant gave him details about prior employment in Saudi Arabia which included sawing and hammering of metal using both elbows and development of left elbow pain treated with gel and medication. On further discussion ... he could not recall whether it was his left or right elbow that had problems over this period. Dr Strack noted that there was information from Dr Souter, that there had been a previous history of right elbow problems with Saudi Arabia Airlines, together with left elbow problems in New Zealand around July 2008. Mr Gapuzan was able to recall the left elbow issues which "gradually came right after time". [33] Endeavouring to sum up previous medical history, his conclusions included the following: There were no significant work injuries or illnesses identified save as mentioned. Diabetes had only recently been diagnosed. There had been depression over the last year or so with anxiety and stress. Has previously had elbow problems. From reviewing the provided information as well as the information Mr Gapuzan has provided me with at the time of consultation it appears this may have included: 2000 Right tennis elbow. 2008 left tennis elbow. 2010 June - left elbow (although Mr Gapuzan has indicated right elbow problems in 2010 in his claimant questionnaire dated 13 December 2011. 2011 - November/December right tennis elbow. [34] Dr Strack's opinion was, that the appropriate diagnosis included right lateral epicondylitis and previous history of both right and left lateral epicondylitis. [35] He noted that: Lateral epicondylitis is a condition of unknown aetiology. It is often associated with heavy manual work involving significant force. It is uncommon before age 18 years and most frequent in the fourth or fifth decade of life. Activities which are thought to precipitate this include gardening, use of screwdrivers, wrenches, turning a door knob or even operating vehicles without power steering. All these activities often require frequent rotary movement of the forearm. This condition although occasionally found in athletes, such as tennis players is most commonly found in non athletes and the majority of sufferers are not manual workers. Many patients are unable to describe any precipitating factors. 36] Dr Strack referred as a literature authority for his statement to Chard MD "The Elbow and Rheumatology" Klippel and Dieppe chapter 5. [37] Dr Strack discussed the underlying pathology of lateral epicondylitis and said that the cause is "imperfectly understood" but, that: The most common finding at the time of surgery is that of degenerative changes (tendinosis) affecting the common extensor origin ... in summary degenerative changes are the primary finding in this condition and it is probably best seen as primarily a degenerative condition in most cases". [38] Reference was made to a recent article by Stasionpoulos D - Lateral Elbow Tendinopathy - Medical Hypotheses 67. [39] When discussing causal factors and the relative significance thereof, he made reference to the NIOSH criteria (NIOSH Musculoskeletal Disorders and Workplace Factors - US Department of Health and Human Services) which concluded that: There is insufficient evidence to support an association between repetitive work and lateral epicondylitis. ... there is strong evidence for the relation between exposure to a combination of risk factors such as force and repetition or force and posture and epicondylitis. [40] Also, that diabetes is a risk factor, and "cannot be ruled out as a potential contributor to the ... recent right lateral epicondylitis problems". [41] He concluded: In assessing Mr Gapuzan's work activities as described to me by Mr Gapuzan and as described in the provided information I've reviewed, it appears that his work was primarily relatively light and varied when he was working in the kitting area, at the front desk undertaking audit type processes. It appears that the kitting activities were relatively varied and appear to involve primary light items which needed to be placed in the kitting cart. It does appear that there may have been occasional lifting of moderately heavy items and weighing between 10 and perhaps 20 kg ... I note that Mr Gapuzan was only undertaking work as a full time kitter for about a month before the onset of his right lateral epicondylar problems. [42] His overall conclusion is, that the work as a kitter or as an auditor did not have the properties or characteristics likely to have placed a significantly greater risk of developing lateral epicondylitis compared with those who do not undertake that type of work. [43] In summary therefore, Dr Strack concluded: There was only infrequent medial level lifting involved. He only worked as a kitter on a full time basis for about a month. A previous history of what appears to be right lateral epicondylitis problems dating back to 2000. A previous history of left lateral epicondylitis problems. A recent diagnosis of type II diabetes which could be an independent contributor. That Mr Gapuzan is a previous smoker and although he did stop smoking some years ago this is also a recognised independent risk factor. [44] On 18 July 2012, Dr Michael Bowes, a Western Australian Occupational Physician produced a report. Key extracts from that include: He noted the history as an aircraft both in Saudi Arabia and then with Air New Zealand. There appeared to be a history of right lateral epicondylitis six years previously although at consultation Mr Gapuzan felt that the complaint there was in fact his right shoulder and was confused why there was a reference to his elbow. He made reference to Dr Strack's report and that the appellant told Dr Bowes that the problems emerged in October or November 2011 when two full time kitters were laid off and the appellant's job nature changed to full time kitting with an increase in manual work. That the appellant thought it was the lifting of fan blades that was the major problem because they had to be lifted and pulled up in an awkward position and twisted. That he resigned in December 2011 because of health and safety issues and had three months off work. That he had subsequently been in Western Australia working on the assembly of oil rigs. [45] I will set out his diagnosis and opinion in full: In my experience, Mr Gapuzan's history is not unusual. Changes in activity, particularly in middle age workers can precipitate a tendinopathy usually around the elbows but on other occasions in shoulders. Analogy can be made to athletes who change equipment or training loads and may precipitate tendinopathy in knees or ankles or other joints which are loaded. I note reference to the assessments in New Zealand with the assessors providing a fair amount of epidemiological data with one feeling the data supported epicondylitis as a work related condition and the other not (?). My view is that the tendinopathy at the elbow was a result of repetitive stress on that tendon which is borne out in the medical literature. It is a degenerative process but the reason for the development of that process is repetitive loading whether in an occupational or recreational sense. Given the history today which corresponds with the history given to the recent independent review that there was a sudden change in activity that activity was a significant manual nature requiring gripping and holding then I would see that there is compelling medical evidence to support that the right elbow complaint in late 201 1 was a consequence of work activities, in that the work activities would be viewed as causal factors. The complaint has followed a natural history and all but resolved and is currently not creating significant disability in terms of avocational or vocational activity. [46] The review hearing took place on 26 July 2012 and, in dismissing the application the reviewer observed amongst other things: In relation to the onset of right elbow symptoms: I note there is a clear nconsistency in the history provided by Mr Gapuzan to Drs Strack and Bowes when compared to Dr Souter's reporting of an email he sent to her. However I note that Dr Souter's report of 14 December 201 1 is consistent with comments made by Mr Gapuzan in his claim and questionnaire dated 13 December 2011. I conclude this gives some weight to her comments. Then, commenting on the issue of whether the work had a particular property or characteristic causing or contributing to the cause of the condition she said: I find that the relevant property or characteristic includes a combination of repetitive force and repetition. I note that Dr Bowes refers to "repetitive stress" consisting of gripping and holding. He also considers the symptoms as being a consequence of the work activities. On the other hand Dr Souter noted that Mr Gapuzan received assistance for lifting heavy items and that while three connections were required there was little force because the items did not weight much. Dr Strack forms a similar view describing the work as relatively light and varied. ... after considering the reports I find the weight of medical evidence shows the causal property or characteristic is unlikely to have been present in Mr Gapuzan's work activities. In forming this view I place some weight on Dr Souter's observations as she is an occupational medicine specialist who is familiar with Mr Gapuzan workplace. Addressing the significantly greater risk test (part of the three part test in s 30) the reviewer said: I find the evidence from Dr Strack is that there is no evidence of increased incidence of epicondylitis in people in Mr Gapuzan's role. In addition, I do not consider that Dr Bowes addressed this test. Instead I note Dr Bowes' observation that Mr Gapuzan was prone to such a condition because of his age means he was more at risk of developing this condition due to factors to do with himself, rather than be at greater risk to external factors such as employment or work environment. [47] For completeness, before discussing the last piece of medical evidence, namely the letter of 1 December 2015 from Dr Strack prepared after the review, for the purposes of this appeal, I will refer to two other collateral pieces of the evidence that were put before me. [48] The first, is a letter which appears to be from Dr Souter, and follows a complaint with the Health and Disability Commission by the appellant, about certain activities whilst working in the occupational medicine practice of Rumball, Souter and Associates which was a contracted company doctor, for the Christchurch Engine Centre. There is little point in discussing it, or the lengthy explanations which appear to relate to some sort of allegation of inaccuracy in reports. The thrust of the complaints appears in a latter part of the letter: The complainant alleges that I did not provide an environment in which you could communicate openly, honestly and affectively. I do not accept that this was the case [49] For further completeness, I note that the appellant has tabled a statement from a Mr Saminton dated 20 September 2015 confirming that: He had worked with the appellant. That around October 2011 his duties and job responsibilities did change from front desk to kitting. That sometime in December 2011 he was called to the office and cited for disciplinary action because he refuses to follow orders to continue kitting or lifting engine parts due to the pain he felt on his right arm and elbow. He resigned from his employment on 21 December 2011. [50] Neither pieces of evidence are of relevance, other than to show that, as Dr Souter had observed earlier, the appellant was not happy with her involvement and to confirm that there were collateral Work related dissatisfaction performance issues going on. [51] I come now, to the final piece of relevant evidence, which is the letter from Dr Strack of 1 December 2015 to the solicitors for the respondent. [52] Essentially it was a review of his total prior involvement, and gave him an opportunity to comment on a number of documents that he had not seen at the time of his previous report on 26 March 2012. These included: Dr Floyd's report of 27 August 2009. Questionnaires in June 2009. Letter from Dr Rumball of 31 March 2009. Difficult to decipher medical notes September 2008 through to 18 June 2009. Ultrasound an x-ray studies. Client cover questionnaire of 12 June 2009. Other general practitioner notes. Dr Porteous's report of 24 September 2008. [53] When asked for his views on the causal factors and relative significance, in light of the totality of the information he said: Although the above documents clarify some of the dates in relation to Mr Gapuzan's various upper limb musculoskeletal problems they do not in my opinion alter the general picture of Mr Gapuzan's work at the Christchurch Engine Centre, involving repetitive relatively light with occasional medium physical demand activity. They do not alter my opinion as expressed in my previous report of 26 March 2012 with respect to whether or not Mr Gapuzan's work has had properties or characteristics likely to have attributed to or caused his right lateral epicondylitis. In brief I am not of the opinion that Mr Gapuzan's work at the Christchurch Engine Centre had properties of significant forceful manual activity to an extent that it would place him at an increased risk of developing right lateral epicondylitis when compared with those not undertaking the type of work Mr Gapuzan was undertaking prior to the onset of his most recent right elbow conditions. ... while some of the dates and uncertainties regarding Mr Gapuzan's previous right upper limb and left upper limb medical problems have been clarified with the information ... I am not of the opinion that this changes my previous opinion. One other point which I believe is important ... is that he has previously experienced right lateral epicondylitis whilst working for Saudi Arabia Airlines. ... there was a lot of hammering with that work and it sounds as though it was heavier than the work ... undertaken in New Zealand. It is important to note that the primary changes of lateral epicondylitis are those of tendinopathy with degeneration of the common extensor origin tendons. This may lead to ultrasound changes of alteration of the substance of the tendons and if the problem progresses it may lead to tearing of the tendon. Although various treatments may provide symptomatic relief for tennis elbow, it is unclear as to whether this resolves the underlying pathology. MRI studies have identified changes such as oedema on about one third of asymptomatic elbows in patients with tennis elbow of the contra lateral elbow (Mckay et al The Objective Diagnosis of Early Tennis Elbow by MRI - Occupational Medicine 2003). Tendinosis of the common extensor origin can be found in approximately 12% of the normal asymptomatic population. Asymptomatic tendinopathy of the common extensor origin on ultrasound does not appear to be particularly related to age, gender or body mass index (Ustune et al sonographic examinations of the common extensor tendon of the forearm at three different locations in the normal population - surg radio 2003 Feb 17. Lateral epicondylitis is known to be a longstanding condition in many patients and it may well be that the onset of right tennis elbow in late 2011 represents an exacerbation of Mr Gapuzan's previous right tennis elbow problems from when he was working at Saudi Arabia Airlines. The Respective Submissions [54] The appellant submits that the evidence of Dr Bowles should be preferred over that of Drs Strack and Souter in particular, as both Drs Strack and Souter, in the appellant's view, labour under a misapprehension regarding previous right elbow issues. [55] Further, that there is a strong temporal connection between what Dr Bowles thought was particularly significant namely a recent change in work tasks of a much more forceful nature, and the onset of epicondylitis. Further, that Dr Bowles has in his reports, identified a particular propensity or characteristic in the context of a recent change in work tasks that mean that the first and third legs of the s 30 test have been made. [56] The respondent's position is, that the medical evidence and particularly the reports of Drs Strack and Souter, demonstrate that there is an insufficient causal link between the specific actual work tasks, and epicondylitis, in terms of the first leg of the s 30 test and that generally, with respect to the risk assessment exercise in the third leg the work tasks do not create a significantly greater risk of epicondylitis. [57] The respondent's position is, that contrary to the submission of the appellant, there is, on the evidence, sufficient to conclude that there was a background of problems with the right elbow going right back to around 2000 and that at best, the events in and around 2009 to 2011 represent an exacerbation of an underlying precondition or as Dr Souter put it, a "flare up". 58] Although counsel for the respondent did not specifically in written submissions make the point, nevertheless coming through on the totality of the case for the respondent is a question mark as to the extent to which other non medical factors including work disciplinary/human resource issues in the context of a concern by the appellant of the general stress imposed on him through a change of work type with which he was not happy. Also a perception coming from the HDC complaint that Dr Souter was not objective. Analysis and Discussion [59] As the authorities referred to in the opening of this judgment make clear, all the steps provided in s 30, must be made out on the balance of probabilities, to succeed in a work related gradual process claim. The onus is on the appellant to make the case. In this case the focus is firstly, on whether there is sufficient evidence to conclude that the specific work carried out by the appellant at the relevant time did cause epicondylitis in the right elbow, or whether it is more likely to be wholly or substantially due to an existing underlying condition. [60] There is largely uncontested general specialist evidence from Dr Strack that epicondylitis generally tends to be a degenerative condition in most cases, albeit that if there is sufficient evidence of lengthy, forceful, repetitive work that can tip the balance. [61] Dr Strack concluded that, that was not the case, because there was only infrequent problematic lifting involved, the kitter work was only of short duration, there was a previous history of what appeared to be right lateral epicondylitis going back to 2000 plus underlying risk factors of diabetes and previous smoking. [62] The issue of pre-existing condition emerged as a primary focus of both parties. [63] With respect to whether there had been previous right elbow conditions, Drs Porteous, Floyd, Souter and Strack referred to problems in Saudi Arabia based on what the appellant told them, or what was in the work history. Even Dr Bowles, noted that there appeared to be right elbow issues six years or, so prior to his examination 1.e. around 2006. [64] There is no counter evidence available to this Court to rebut that, save for the oblique reference in the information about the HDC complaint about Dr Souter which seems to imply that her record taking was being challenged. [65] My conclusion on that point is, that the evidence does support the proposition that the appellant had spoken of right elbow problems going back to 2000 or certainly before 2011, to a number of the people who examined him. [66] That conclusion, coupled with a comparison of the respective views of in particular Drs Strack and Bowles, and applying the Martin principles leads me to the conclusion that the opinions of Dis Strack and Souter when weighed in the balance against those of Dr Bowles, should prevail. The Court was advised, (but did not see the relevant letter) that Dr Bowles, although an Australian doctor, had been appraised of the relevant parts of the Accident Compensation Act, yet, particularly with regard to s 30, did not address the relevance of that previous history, even though it appeared he was aware of it. I agree with the respondent's submission, that that, has significance, particularly as Dr Bowles, acknowledges, as with Dr Strack, that epicondylitis is generally a degenerative process. [67] Also, Dr Bowles' report does not address the research referred to by Dr Strack or provide research to support his view. Dr Bowles' focus seems to have been on a sudden change in activity of what he described as a "significant manual nature requiring gripping and holding" and not address the issue of the degree of force required. [68] With respect to the risk assessment exercise involved in the third leg of the s 30 test, the appellant is on even weaker ground. There is really nothing in the evidence for the appellant, which addresses the respondent's evidence that, on an objective basis, such a risk exists, bearing in mind where the onus lies. [69] Accordingly, I find that the appellant has failed to meet the burden of proof and the appeal is dismissed. There is no issue as to costs. Judge A N Maclean District Court Judge Solicitors: Zindels Nelson for the appellant Luke Cunningham Clere, Wellington for the respondent ACR 585-12-Gapuzan.doc