Lagahetau v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 260 /97 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 SIFA LAGAHETAU DCA 146/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND WRAGGS PRODUCTION LTD Second Respondent HEARD at CHRISTCHURCH on the 11th day of November 1997 APPEARANCES: Mr S van Bohemen for appellant Mr J S McHerron for first respondent Mr D White for second respondent DECISION OF JUDGE MI BEATTIE 2 The issue in this appeal is whether the particular property or characteristic found in the employment task performed by the appellant and which caused or contributed to her personal injury by gradual process, was also found to a material extent in the non-employment activities of the appellant. Background Facts The appellant then aged 41 years commenced employment with Wraggs Production Ltd, the second respondent, as a machinist on the 17th of May 1995. She ceased her employment on the 30th August 1995. The second respondent manufactured shirts and the appellant's task was to machine sew the garment to the stage where it was ready for finishing by the addition of buttons and button holes and any other trimmings that may be required. Her work task required her to be seated at a machine sewing up the arms, attaching the sleeves to the body and then attaching the collars, cuffs and front bands. If the cloth did not align correctly when sewn she would unpick it and repeat it. She held a small pair of clippers in her right hand with the finger ring of the clippers looped over her right ring finger. Using this she would cut around the collar using pressure between her flexing thumb and her index and middle fingers with the wrists in ulnar deviation. She worked 9 hours a day at this task. After about a month or so at work the appellant started to develop pain in her right forearm and this pain gradually increased and got to a stage where she felt she needed to see a doctor and did so consult Dr Karen Lamb on the 18th August 1995. Dr Lamb indicated that the diagnosis was "tendonitis and inflammation at insertion of wrist extensors interlateral epicondyle of right elbow". Dr Lamb certified the appellant as being unfit for work for 14 days. 3 At or about this date the appellant lodged a claim for cover specifying a gradual process injury. The Corporation investigated the claim and on 5th September 1995 received a gradual process questionnaire from the appellant and in addition the employer similarly completed an employer questionnaire. In that questionnaire the employer stated "Sifa is a power lifter and is currently training intensively for the NZ Powerlifting Championships." He concluded by stating "The type of work Sifa is doing is not repetitive enough to cause the injury. I strongly suspect her weightlifting.' The file was then referred to a District Medical Adviser with the Corporation who recommended that the claim be declined as powerlifting appeared to be a contributing cause. A decision declining the claim was issued on the 18th September 1995. The appellant applied for a review of that decision and the matter was heard in December 1995 but the appellant did not appear at the review hearing. However the Review Officer did give her the opportunity to comment on the evidence presented by Mr White for the employer but she did not take up that offer. The Review Officer's decision was issued on the 29th of June 1996 and noted that in order to have cover under the Act three separate criteria specified in s.7(1) need to be satisfied. The Review Officer accepted the Corporation's submission that the appellant's employment tasks had a particular property or characteristic which caused or contributed to the personal injury and secondly he accepted the Corporation's submission that the provisions of s.7(1)(c) could be satisfied but then stated: "However the Corporation submit that non-work factors have caused or significantly contributed to the appellant's condition and as a consequence cover should be declined. It is clear in this instance that the appellant has extensive 4 involvement in power building and as a consequence I agree with Mr Lyons' submissions and the recommendation of Dr Sinclair that powerlifting could have significantly contributed to Mrs Lagahetau's condition such that her claim does not fulfil the requirements under (b)." For this reason the review was declined. For the purposes of this appeal both the appellant and the second respondent have provided further evidence and in addition there are two medical reports from Dr Alchin, a specialist occupational physician. The relevant statutory provision is s.7 which is as follows: "7 . Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment - (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if (a) In respect of a period that ended on or after the Ist day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. UI (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment." As previously mentioned the Review Officer held, as had the Corporation in its own earlier deliberation, that the circumstances of the appellant's case satisfied the criteria required of s.7(1)(a) and (c). These findings were made despite the claims made by Mr White, a director of the second respondent at the review hearing, that the appellant's employment tasks did not involve any repetitive work which could cause such an injury. In addition he had emphasised her non- employment activities of powerlifting and in particular stating that at the time when the injury occurred she was involved in intensive training for the New Zealand Championships. In the course of the hearing before this Court Mr White, representing the second respondent, sought to revisit the question of whether or not the appellant could have sustained the type of injury she undoubtedly did from her employment tasks. He stated that the appellant had exaggerated the amount of trimming she did. That the amount of unpicking and resewing required would be minimal. That for trimming work she would use scissors not clippers. Any trimming required was through three thin layers of fabric and not up to five as had been stated by the appellant and the action was not repetitive - at most 25 times a day or once every 25 minutes. Essentially Mr White stated that the appellant was required to use scissors for all trimming work and the clippers were to be used solely for snipping or unpicking threads. 6 This evidence was in contradiction with the appellant's evidence of how she personally worked and her evidence was that she used the clippers, that is the smaller cutting object, rather than the scissors for most of the trimming as well as unpicking. It is to be noted that for all these tasks she used her right hand only. Having considered the evidence of the employer and employee I have come to the conclusion that each is telling the truth from their respective perspectives. The appellant gave clear evidence of how she performed her employment tasks both to this Court and previously to Dr Alchin. The employer in the person of Mr White gave evidence of how he believed the task ought to be performed and may well be performed by other members of his staff. The fact of the matter is that he cannot, nor did he attempt to give evidence of, what the appellant actually did. There is no evidence that is able to contradict the appellant's evidence of how she performed her employment task. At most Mr White would spend about 15 minutes a day on the "shop floor" and was in no position to say how the appellant did in fact perform her tasks. For this reason I find that the subsequent visit to the workplace by Dr Alchin and for him to be shown how another employee conducted the same employment task is of little help, as the report of this in Dr Alchin's second report indicates that that employee performed the task in a different fashion to that which the appellant had stated had been her practice. Accordingly then I find that the medical evidence from Dr Lamb, the physiotherapist Mr Elliott and Dr Alchin all confirm that the employment task carried out by the appellant did have a property or characteristic which caused or contributed to the appellant's personal injury by gradual process, namely, right lateral epicondylitis, being caused as a consequence of the repetitive contraction of the right wrist extensor whilst using the clippers when carrying out her clipping, trimming and unpicking tasks. 7 I find nothing in the evidence that has been adduced subsequent to the review hearing which could alter that finding. Similarly there has been no evidence or any suggestion that the risk of suffering that personal injury is not greater for persons performing that employment task than for persons who do not perform that task in that environment and accordingly the provisions of s.7(1)(c) are similarly satisfied. This then means returning to the issue which I identified at the beginning of this decision as being the issue for determination. At the review hearing the Review Officer heard evidence from a Mr Lyons representing the Corporation which consisted simply of him stating that it was the Corporation's opinion that powerlifting would have contributed to the development of the condition to a material extent. No evidence or reasons to back up that opinion were tendered and the only evidence additional to it was that of Mr White who stated that at the time when she was supposedly developing this injury at the workplace she was heavily into training for the New Zealand Powerlifting Championships. Again no medical evidence to establish any co-relation between the workplace task and powerlifting which could establish that each had the same characteristic or property was given. For these reasons I find that the finding of the Review Officer to have been made without any proper basis in fact and is a conclusion that ought not to have been drawn in the absence of medical or other specialist evidence to substantiate it. For the purposes of this appeal medical opinion was sought and it was from Dr Alchin. In his first report dated 7th April 1997 he recites the particular work action which the appellant said she carried out in a repetitive fashion and which I have set out at the beginning of this decision, including it in the "Background Facts" 8 Dr Alchin confirms the diagnoses previously given by Dr Lamb and Mr Elliott the physiotherapist and he quoted as follows: "Mrs Lagahetau had right lateral epicondylitis. Although she did not have this when I saw her and on her account it has been better for over a year, this diagnosis is pretty much certain for the following reasons: 1. Her description of the pain and its site to me was entirely consistent with this diagnosis; 2. Your letter to me states that Dr Lamb at the time diagnosed it as 'inflammation at insertion of wrist extensors into lateral epicondyle of right elbow' - this is lateral epicondylitis; 3. The physiotherapist at Sports Med (Mark Elliott) also told Mrs Lagahetau that this was the diagnosis. Note that this condition is common and is readily diagnosed by physiotherapists and general practitioners. So there is no real doubt regarding the diagnosis. " Dr Alchin then goes on to state that the usual cause of lateral epicondylitis is repetitive contraction of the wrist extensors resulting in micro-trauma at the common extensor origin. Ms Lagahetau demonstrated with her clippers the particular action she carried out and Dr Alchin confirmed that that action utilised the extensor muscles. He did not consider that other actions involved in the employment task such as feeding material through the sewing machine, would cause stress to the common extensor origin to anywhere near the same extent. He went on to note that "in addition this action was performed with both arms equally whereas her condition was in the right elbow - the arm in which she held the clippers." Dr Alchin then went on to consider the actions of the appellant in her various powerlifting exercises and stated "the position of wrist dorsiflexion while doing 9 bench presses and squats, and neutral position for dead lifts, entails a more sustained contraction without particularly stressing the common extensor origin; once again as with feeding cloth into the sewing machine this exercising would affect both arms equally." He further added "Therefore on bio-mechanical grounds I would suspect that the clipper use was likely to be a significant factor not only because of the effect of this action on the common extensor origin but because this is the only action which was performed with the affected right arm only." Dr Alchin was also influenced by the fact that the injury only occurred after she had commenced this particular employment whereas she had been powerlifting for some four years without injury and at the particular time when the injury flared she was not involved in any intensive training competitions but simply doing off season training. This state of her powerlifting activities was confirmed by the appellant and was quite different to the statement about it that was given by Mr White to the Review Officer. The second report of Dr Alchin dated 7th August 1997 was made after Mr White had requested him attend at the workplace to see a person carrying out the particular work tasks carried out by the appellant. As I have already observed where there are differences in the way that task were carried out Dr Alchin's opinion can have little relevance. In his second report he simply states that he would not hold to his earlier opinion if the work task were as he had seen it. I have already found that the evidence of the appellant is accepted and on that basis the opinion expressed in his report of the 7th April is entirely valid. As previously stated it is significant to note that it is only in the appellant's right arm that her injury occurred. There is no suggestion that any action carried out in the various powerlifting modes is done with other than the same action for both hands. The appellant had been a powerlifter for several years before this particular employment without any difficulty. She resumed her powerlifting 10 after recovering from her injury and again has experienced no further problems. This Court is entitled to regard those as significant factors which point strongly to the employment task as being the significant causative or contributing factor to her injury. The onus is on the appellant to establish on the balance of probabilities that the property or characteristic which caused her injury is not found to any material extent in her non-employment activities, and I find that that onus has been discharged. Accordingly I find that all three criteria of s.7 have been satisfied in favour of the appellant and the decision of the Review Officer is revoked. Counsel for the appellant advised that the appellant was on legal aid but in any event I find that the appellant is entitled to an award of costs. I fix the sum of $800 costs to be payable by the first respondent as to $400 and the second respondent as to $400. The reason for apportioning costs between the two respondents is that in this case the first respondent did in fact support the appellant's claim and counsel argued that the decision made by the Review Officer could not be sustained. The matter could therefore have been dealt with by consent were it not for the second respondent requiring the matter to proceed to a hearing and be fully argued. For this reason I consider that the second respondent should bear half of the costs that are properly payable to the successful appellant. th DATED at WELLINGTON this I- day of December 1997 M J Beattie District Court Judge Lgahetau.doc KD