Sandford and Hay Building Supplies Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 230 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SANDFORD AND HAY BUILDING SUPPLIES LIMITED (RE: M K ROBINSON) of Auckland Appellant (Appeal No. DCA 300/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 20th day of October 1998 APPEARANCE/COUNSEL JK Nathan for appellant J D Palmer for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant's employee (the worker) suffered a work injury in the course of her employment with the appellant. 2 On 1 August 1995 the worker lodged a claim with the respondent that her work for the appellant caused pain in her right wrist and forearm. The worker's general practitioner, Dr Herbert, made a diagnosis of right wrist tendonitis. The worker claimed that the injury had occurred over a period of time rather than on a specific occasion. The respondent had the worker complete a claimant questionnaire which is dated 31 August 1995. In that questionnaire the worker stated that her condition had developed over four months and was caused by working on a till all day. She said that the first symptoms were swelling of her right hand, pins and needles in her fingers and sore joints. She said that she had first noticed the symptoms two weeks before she became entitled to receive benefits from the respondent. She also noted that she had suffered a similar condition previously and this appears to have been recorded by Dr Herbert in the claim form where he made the note "similar injury in 1989? Recurrence of this". On 31 August 1995 Dr Herbert's diagnosis and prognosis was "(R) wrist and forearm overuse syndrome causing tenosynovitis flexor and extensor tendons of wrist - should (and is ) gradually settling down with rest". Dr Herbert stated that the condition had developed over several months and that the use of a "difficult" till had been a particular problem in addition to working in a cold and draughty area. In its questionnaire dated 1 September 1995 the appellant stated that it did not accept that the injury solely work related, particularly as the worker had suffered a fall on 2 August 1995 playing netball and that the pain in her wrist had started from that incident. The questionnaire also stated that the worker had suffered similar condition prior to her employment with the appellant, and that she had made no complaints about her condition while working with the appellant. The respondent then referred the worker to Dr J Kirk, a rheumatologist who issued a report which is dated 21 September 1995. In that report Dr Kirk noted that the appellant had a complicated case because of the 1990 injury to her right dominant wrist. He noted that when she re-entered employment following the apparent recovery from that injury she developed a diffuse overuse right arm syndrome. In the history recorded by Dr Kirk he noted that the worker had suffered a fall in 1990 onto her outstretched right hand when walking up wet steps, three days before the opening of the Countdown store where she went to work. She was in plaster for some three weeks but did not cease working at Countdown where she was a checkout operator. However, she did have considerable periods of time off work and gave up the position in July 1993 apparently because of a breakup with her fiance which prompted her to leave the country. She apparently saw a specialist at the Christchurch Hospital on a number of occasions in relation to the right wrist which was swelling and subsequent investigation demonstrated some traumatic ligamentous injury. The worker then went to Australia and found that her change from checkout operator duty brought about a rapid recovery in her right wrist. She undertook some work for a year in Australia but it was not repetitive, although she did some keyboard activity but had no problems with her right wrist. The worker returned to New Zealand in October 1994 and found that she only had twinges of pain in her 3 right wrist on vigorous activity. This was described as pins and needles in the arm. She took up employment with the appellant some five months after her return to New Zealand from Australia during which period she had been unemployed. The worker had been working with the appellant for approximately three months when she suffered a fall playing netball in a team made up of work colleagues. In his report Dr Kirk did not consider that fall to be significant so far as the appellant's complaints were concerned. In the course of his report he stated: "The current picture is that of Occupational Overuse Syndrome and the work description does not reflect what she was actually doing which was a good deal of lifting heavy cans of paint, 4 or 10 litres, tipping them over, lifting electric heaters on to a counter, working on a high till in a low seat doing pricing 5 hours a week using a gun and having to empty rubbish and sweep floors. It seems that the lifting of heavy objects on to the counter for the pricing operation, the customers having placed them there in the first place but she would then have to lift them to see under them where the price is held and also lift them into a trolley on some occasions, was the main part of the job which gave this young woman the Occupational Overuse Syndrome. It certainly seems that she should be treated by one of the physiotherapists who are familiar with the treatment of OOS as Dr Herbert has suggested. She does not require a splint because the right wrist is not a part of the clinical problem at the moment, the original 1990 injury seemingly having sealed in spite of a ruptured wrist ligament. It would not it seems have any major contributing part to the late development of Occupational Overuse Syndrome except that she feels she somewhat favoured the right wrist because of a remembrance of it having been previously abnormal but that she did not use her right arm differently except sometimes to spare it by using the left. The diagnosis, therefore, is occupational overuse syndrome right arm and shoulder, possibly neck. There are no pre-existing conditions of relevance as the right wrist injury had virtually healed before this problem and it is surprising it has done so as this kind of wrist problem is often longstanding when there is ligamentous damage. I should think that the condition is caused entirely by her occupation and not by any non occupational activities such as a fall on to the shoulder at netball before she went off work which seemed to play no part in her problem. The prognosis is only average with this degree of weakness of grip strength and in the presence of a litigious situation which will doubtless retard her progress." The respondent submitted Dr Kirk's report to its senior medical advisor Dr M Sinclair who did not examine the worker but concluded that by a reference to Dr Kirk's report he agreed that the worker had suffered a workplace injury for which she was entitled to cover under s.7(1). 4 The appellant notified the respondent on 19 January 1996 that it did not accept the decision that the worker had suffered a work injury and disputed Dr Kirk's description of the nature of the work undertaken by the worker. After an administrative review the respondent notified the appellant on 15 February 1996 that it confirmed its original decision. The appellant applied for a review of that decision. At the review hearing the appellant submitted evidence to the effect that the worker's job, while it included some work as a checkout person, also included work as a showroom assistant and also that the nature of the checkout work was not of the repetitive nature associated with her previous work as a Countdown checkout operator. The worker also gave evidence at the review hearing in which she stated that the checkout station was uncomfortable and that she was required to carry out repetitive lifting actions in a position which was draughty. While she made reference to the fact that some of the work involved lifting heavy cans of paint in order to put them through the checkout, this was disputed by the appellant's evidence which was that the cans were normally taken by trolley by operators in the paint section who presented them to the worker at the workstation without her having to lift them at all. The evidence from the appellant also indicated that the worker was involved at that work station for only approximately two and a half days each week and the balance of the time was spent as a showroom assistant. During the course of her evidence at the review hearing the review officer asked the worker whether she had had any problems in Australia which resulted in the worker saying that while she was there she had been to see a specialist. She said that in the course of seeing the specialist he had asked her about any problems she might have when she explained that she had a sore neck and twinges and pain in her right wrist. At that hearing the worker's reply was not taken any further but she was present at the appeal hearing and she told me she had seen the specialist in Australia in respect of a completely unrelated matter. She gave evidence before me confirming that. She said that it was only when the specialist asked her about her general physical condition that she mentioned the shoulder and wrist but her attendance with the specialist was on a completely unrelated matter. In her decision the review officer concluded that on the basis of Dr Kirk's report and the diagnosis by Dr Herbert all the elements of s.7(1) had been satisfied so that the decision of the respondent was upheld. It is against that decision which the appellant now appeals. Ms Nathan submitted that apart from his diagnosis that the worker suffered occupational overuse syndrome Dr Kirk had not a specific diagnosis of her problem. She submitted further that while Dr Kirk had provided his confirmation of Dr Herbert's diagnosis of occupational overuse syndrome, no effort had been made to check the workstation and Dr Kirk made his diagnosis on the basis of the appellant's description to him of the nature of the work she undertook which was seriously disputed by the evidence at the review hearing. 5 Ms Nathan referred to the decision in Click Clack International (M D Simpson) v ARCIC (61/95) in which Judge Ongley had noted that in the face of a dispute as to the nature of the work undertaken by a worker a specialist's report on the working environment was an essential ingredient before a decision should be made under s.7. She submitted that a similar situation arose here in that Dr Kirk merely relied on the worker's description of how her problem arose. Ms Nathan submitted further that there was doubt as to when the appellant's problem first arose because it is clear that she sought medical treatment for the injury to her wrist in 1990 and this was confirmed by Dr Herbert in the claim form. That was also confirmed by Dr Kirk in his report and that the pain in her wrist aggravated her work as a checkout operator at Countdown prior to her leaving that operation. Ms Nathan submitted that Dr Kirk's report confirmed that the worker's injuries were consistent with a work injury on the basis of the appellant's description of the nature of her work but it did not exclude the possibility that the injury occurred in 1990. Ms Nathan submitted that the evidence demonstrated the worker had suffered an injury at netball prior to her lodging her claim and while Dr Sinclair was prepared to exclude this as the reason for the worker's problem he did so only on the basis that he accepted what Dr Kirk had said in his report. A similar situation arose in relation to the issue of whether there was a greater likelihood of persons performing that work task in that environment than for persons who did not. However, Ms Nathan submitted that no workplace assessment was ever made in spite of the conflict in the evidence between the appellant and the worker. Mr Palmer submitted that on the basis of Dr Kirk's report the decision of the review officer was correct. In order for the worker to be found to have cover under s.7 all of the three elements under s.7(1) require to be answered in her favour. Section 7(1) provides: "7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - ) 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 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." In relation to s.7(1)(a) the issue is whether the task performed by the worker has a particular property or characteristic which caused or contributed to the personal 6 injury by gradual process. The only evidence available is the original diagnosis by Dr Herbert without any detail at all. Dr Kirk relied on the description of the nature of her work provided by the worker which indicated that she was sitting in a cold and draughty position at a checkout counter where she told him that on occasions she was lifting four litre and sometimes 10 litre cans of paint with her right hand in a stretched out position. She also claimed that from the same position she sometimes had to lift electric heaters from the floor to counter height. That job description is very seriously challenged by the appellant. The nature of the work according to the appellant did not involve very much lifting as most of the paint was presented on trolleys by workers from the paint department. Furthermore, the appellant disputes that the worker spent long hours at that work because her duties involved perhaps 21/2 days per week on the counter and 21/2 days in the showroom. Other evidence demonstrates that while working for Countdown the work involved in a much more repetitive type operation which she continued to do after the injury to her wrist in 1990. It is clear from Dr Kirk's report that while he had some doubts that an injury of the nature involved it had healed, apparently completely, before the worker went to Australia. On the totality of the evidence I think that injury in some way is the basic contributor to the appellant's problems, particularly when coupled with the work at the Countdown counter which would have been far more repetitive and demanding than in the appellant's operation. It also caused problems which only settled when the worker gave up that work while in Australia. The respondent made no effort to obtain a workplace assessment even after the nature of the work was in dispute. I must agree with the comments of Judge Ongley in Click Clack that in those circumstances a workplace assessment would appear to be essential. In relation to s.7(1)(b) the review officer accepted Dr Kirk's opinion that the netball injury prior to the claim for cover was not a causative factor in the problem. I agree with the review officer's finding on that issue that there is no other evidence of a property or characteristic found to a material extent in the worker's non employment activities which could be suggestive as causative. In relation to s.7(1)(c) the review officer relied on the evidence of Dr Sinclair. However, I agree with Ms Nathan's submission that all Dr Sinclair has done is said that he has accepted the statements made by Dr Kirk in his report and on the basis of those statements considered that the worker satisfied the requirements of s.7(1)(c). I disagree with that finding because again no workplace assessment was undertaken and the opinion of Dr Sinclair was based on the opinion of Dr Kirk who simply relied on the description of the workplace given by the appellant without any actual knowledge. This finding was made in spite of what now appears to be contradictory evidence from the appellant which has not been otherwise challenged. 7 Accordingly I do not consider that the evidence provided by the respondent satisfies the criteria of either s.7(1)(a) or s.7(1)(c) and accordingly the appeal will be allowed and the decision of the review officer revoked. There will be costs to the appellant of $850. DATED at WELLINGTON this 11 day of . November 1998 A W Middleton District Court Judge Dca30097.doc(rd)