Southern Crown Health Enterprises Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. /48/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SOUTHERN CROWN HEALTH ENTERPRISES LIMITED Appellant (Appeal No. DCA 206/95) AND ELIZABETH COLEMAN Other Party AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of February 1996 APPEARANCES Mr A Isac for the appellant Mr P Sara for E Coleman Mr A Barnett for the Corporation DECISION OF JUDGE A W MIDDLETON This appeal came before me on 16 February 1996 when it was only possible to hear the evidence of witnesses who had not been heard at the review hearing. At the conclusion of the evidence it was agreed that Mrs Coleman should be examined by an Occupational Health Physician and after his report was received each counsel was given leave to provide submissions in writing. I have now received the report from Dr G C Hancock, an Occupational Health Physician, together with the submissions of all counsel. 2 The issue on appeal is whether Mrs Coleman is entitled to cover for personal injury caused by gradual process in terms of s.7 of the Accident Rehabilitation and Compensation Insurance Act 1992. Mrs Coleman lodged an application for cover on 30 August 1993 in which she claimed to suffer occupational overuse syndrome (OOS). At that time she was employed by the appellant as an Occupational Therapist Assistant. The respondent obtained a report from Mr P D G Wilson, an Orthopaedic Surgeon, on 3 December 1993. His description of the appellant's history was: "Mrs Coleman was originally referred to me by her General Practitioner, Dr Coxhead and I saw her at my rooms on 19 August 1993. At that stage she had pain in her right forearm and hand, her General Practitioner had investigated her fairly fully but was unable to come to a diagnosis. When I discussed the matter with Mrs Coleman she stated she was employed as an Occupational Therapy Assistant at Seddon Memorial Hospital, Gore, also a Housewife. She stated the onset of her pain started approximately four months before I saw her, at which stage, in her work as a Patch Work Quilter, she had been tearing sheets into strips so she could use them in the pattern of the patchwork. She had spent considerable time doing that and at the end of the day felt her arm was rather uncomfortable, mainly the right, but there was the occasional niggle in the left. It was further contributed to by the fact that in her work she frequently had to left and help people which she felt aggravated the situation. At that stage the question of diagnosis arose, either it was carpal tunnel syndrome or she had developed Occupational Overuse Syndrome. I felt the former was excluded the the (sic) most likely diagnosis was the latter. Mrs Coleman was about to depart New Zealand for Brussels where she was going to stay with her daughter and I felt it would be pointless to undertake any treatment until she returned. I wrote to her General Practitioner stating I felt she probably had Occupational Overuse Syndrome and if it did not settle, it maybe worthwhile her seeing Professor David Palmer, Rheumatologist. I felt he would deal with the condition more successfully." Mr Wilson reviewed Mrs Coleman's position and work history and concluded "I am certain this is a case of occupational overuse syndrome". On 11 January 1994 the respondent advised Mrs Coleman that it declined her application for cover "as it does not meet the criteria for personal injury caused by gradual process, disease or infection arising out of and in the course of employment". The appellant applied for a review of that decision. Prior to the review hearing Mrs Coleman's 3 counsel arranged for her to be examined by Dr W E D Turner, an Occupational Physician, whose report of 16 March 1994 states: "Thank you for your letter of 11/03/94 requesting a report on your client. I note that the Corporation have declined compensation on the basis of their consideration that the nature of her injury is non-compliant with criteria laid down under Section 7 of the ARCI Act 1992. I first examined Mrs Coleman on behalf of her general practitioner on 09/01/94 at which time I was able to obtain the following history. OCCUPATIONAL HISTORY She presented with a history of pain affecting both arms dating back to September 1992. Her occupation is that she is an occupational therapy assistant, her job description being that she assists patients with dressing, crafts, pushing wheelchairs, lifting patients, assisting them with writing procedures as regards the new health system, and also undertaking psychogeriatric music sessions as well as indoor sports, etc. Essentially the job is hand loaded involving forceful activities particularly with the handling of patients which involves both arm and hand loading. Her job is also repetitive from writing. This essentially relates to the handwriting of song sheets for music sessions but she also undertakes writing at home in respect of journal and letter writing. At the time of the onset of her pain she was writing at times at the rate of 3-4 hours per day for periods of 2-3 weeks, particularly as she was secretary for the Hyde Railway Accident Memorial. She describes hobbies of knitting, sewing and writing. She also described that around the time of the onset of her pain she was carrying out a considerable amount of sewing, having previously gone on a quilt making course which was encouraged by her employers since quilt making was a skill which could be used in the course of her employment. She described in September of 1992 the onset of pain in the extensor aspect of her left forearm occurring in relation to ripping material. As previously stated this related both to the ripping of fabric in her quilt making activity but also ripping paper which is a diversional activity for psychogeriatric patients. In terms of the material ripping she described working consistently for 4 days using a technique where the material is ripped away from her with a forceful left arm action. Following this the material was machined into a patchwork quilt and it was on the sixth day that she began to notice the pain. Subsequently she consulted her general practitioner who advised that she had RSI, recommending rest from the offending activity. She resumed normal duties after a period of a week returning to alternate duties avoiding lifting of patients as much as possible. She developed a ganglion cyst over the flexor aspect of her left wrist in December 1992 at which time she was beginning to notice that both arms were aching, the pain being worse towards the end of a working work with partial resolution over the weekend. In June 1993 she described having to undertake a considerable amount of writing as part of her secretarial duties with the result that there was 4 an exacerbation of symptoms on the right involving both the extensor and flexor aspect of her right forearm and wrist. She noticed the onset of a cramping sensation in the right hand after half an hour of writing forcing her to stop and exercise her hand. She was referred to Mr Wilson, Orthopaedic Surgeon, in August 1993 who confirmed the diagnosis of OOS [RSI] recommending referral to Dr Palmer. She was subsequently told by Dr Palmer's secretary that she would have to wait some 12 months before receiving a consultation. In the meantime she had 5 weeks overseas in Europe. Over the 5 week period she undertook strict rest, as much as was practically possible with the result that she was free of pain at the end of this time. On return to work on October 6 1993 she suffered a recurrence of symptoms in both arms mainly over the extensor aspect of her forearm, carrying out the normal duties of dressing patients [putting on socks] and lifting patients. She found it very stressful returning to occupational therapy assistant duties particularly as she felt she would suffer a recurrence of pain when she was still experiencing some activity related pain. Furthermore there were aspects of her job which were causing some dissatisfaction such as relationships with co-workers particularly the nursing staff which were never resolved, working in isolation [apart from 2 days a week]. There are also the concerns regarding the unproductive nature of the psychogeriatric work causing her to feel somewhat burnt out. In many ways she regards OT assistant work as interesting however aspects of it as previously described have caused her some considerable concern and she now feels a disquiet about returning. At the time of her examination she described that both forearms have settled essentially as a result of doing nothing with her arms however she had developed right shoulder pain as a new feature having considerable difficulty raising her right arm above the shoulder region. The pain which is centred over the anterior aspect of her right shoulder had resolved somewhat with a course of anti- inflammatory medication however she does continue to describe a stiffness in the region with reduced ability. She also described a sensation of swelling in the fingers of the right hand. PAST HISTORY She described in her past history recurrent depression over a number of years in relation to grief for her father and brothers as well as her son who died in 1980 as a result of an asthma attack. She has had marriage guidance counselling for some 12 months beginning 1993. She takes a small does of anti-depressant medication, tabs Ludiomil 50 mg nocte as well as Alprazolam 0.5 mg nocte to assist her with insomnia. She described a tendency to cold hands and cold feet particularly in the winter months, her daughter and aunt having full blown Raynauds phenomenon. She is on HRT [prem pack 0.625 mg] starting in October 1992. She has had varicose vein surgery, but nothing else of note. PHYSICAL FINDINGS Assessment of her upper limbs revealed a bilateral common extensor origin enthesopathy with trigger points apparent in the extensor carpi radialis brevis 5 muscle bellies. There were no tender points in the wrists or hands. She had a full range of pain free movement of the elbows, wrists and fingers. There was no evidence of muscle wasting. She had a minor tremor of the outstretched fingers. Sensation to pin prick was normal as was co-ordination using the five finger tap test. Assessment of muscle tone using the co-contraction test revealed some increase in tone particularly on the right. Assessment of her grip strengths using a Jamar dynamometer revealed a recording of 41 1b on the left as compared with 22 lbs on the right her dominant hand. Observation of her writing technique revealed that over a period of a minute there was a deterioration in handwriting and some loss of control. Examination of her cervical spine revealed a full pain free range of movement. Assessment of shoulders revealed that the left was quite normal however on the right there was quite marked restriction of movement with abduction to 550, forward elevation to 90', backward elevation to 40. Passive external rotation was recorded as 480 with internal rotation recorded at 75. Clearly she had the capsular pattern of passive movement. There was a ganglion cyst involving the flexor digitorum tendons of her left lower forearm. DIAGNOSIS Clearly this patient has developed an overuse syndrome essentially involving the extensor mechanism of her forearms, also developing a secondary frozen right shoulder as a consequence of hand, arm and shoulder loading over a prolonged period. There were elements of a focal dystonia evidence in the right hand as indicated by low tolerance to hand writing with deterioration and loss of control after a period of one minute. ACCEPTANCE UNDER SECTION 7 For a condition to have cover for a personal injury caused by gradual process arising out of and in the course of employment it must satisfy a three tier criteria. These three criteria are: 1. Employed task performed by the affected person or the environment in which it was performed must have a particular property or characteristic which caused or contributed to that personal injury by gradual process. 2. The property or characteristic is not found to any material extent in the non-employment activities environment of the person. 3. The risk of suffering personal injury is significantly greater than persons for performing the employment task in that environment than for persons who do not perform that task in that environment. 6 In the matter of determining causation therefore one must take cognisance of the inherent characteristics of properties of the work that is being performed as well as determining risk factors as being sufficiently greater in the occupational versus non-occupational environment. Traditionally in occupational medicine the risk of developing the occupational overuse syndrome can be determined by the rate of repetition of movements together with the exhibition of force. Risk is therefore highest in those occupations characterised by rapid repetitive movements performed over prolonged periods where there are also forceful exertions involved. On a descending scale one would then have: High risk work high repetition high force movements Median risk work high repetition low force movements Low risk work low repetition low force movements In determining causality one must also take account of the positions of use of the affected anatomical part since this will largely determine the onset of pain. By way of analogy a lathe operator in a Freezing Works developed a right shoulder rotator cuff syndrome through repeatedly and forcibly pushing on the locking mechanism of the tail stop on the lathe to lock it. This required arm extension over a back of the machine in order to repeatedly tighten the lever to lock the tail stop. Gradually he developed pain in his anterior shoulder region over a period of weeks. When he was taken off this job, the pain diminished markedly despite the fact that he was carrying out large amounts of painting often with the arms elevated at home. He returned to the lathe one month later and within days developed a recurrence of symptoms. Clearly the uninitiated here would attempt to incriminate painting as a potential cause of his problems however analysis of the history in terms of the movements of work and postures adopted during these movements revealed that it is work related gradual process. Using the same principles in relation to Mrs Coleman it is apparent from her history that initially she experienced symptoms from quilting which must however be regarded both as a non-occupational and occupational activity as she was encouraged by her employers to learn quilt making as a skill which was also used as part of her work process. Writing was also a feature of the onset of her problems again combining non-occupational activity when working as a secretary for the Hyde Railway Accident Memorial and also hand writing song sheets for music sessions. The symptoms here must be regarded as an early manifestation of overuse representing physiology rather than pathophysiology and arising through lactic acid accumulation. In other words this early onset can be regarded as normal consequences of prolonged repetitive activity without the application of force where discomfort and fatigue manifests early symptoms of overuse. Subsequently in September 1992 she developed what could be regarded as the first manifestations of a primary occupational overuse syndrome whereby she was 7 experiencing frank pain [as apposed (sic) to fatigue and discomfort] in her arms as a result of the ripping of fabric for quilt making but also ripping paper as a diversional activity for psychogeriatric patients. Therefore this can be regarded as the initiation of her occupational overuse syndrome. This particular activity combines a combination of repetition and force with the right arm held in extension away from the body and the left arm providing the force for the ripping action. Initially the symptoms were confined to the left arm which is biologically plausible in relation to the movements which initiated her symptoms. Subsequently with continuing exposure to hand loaded activity particularly in relation to lifting patients she developed bilateral symptoms which were worse towards the end of a working week with partial resolution over the weekends. This fact clearly demonstrates a relationship to work with a relief of symptoms when work exposure ceases. A further supporting act is that she had a period of 5 weeks overseas in Europe when she undertook strict rest and was pain free at the end of this time however on returning to work on 6 October 1993 she suffered an immediate recurrence of symptoms in both arms mainly over the extensor aspect of her forearm carrying out the normal duties of dressing [pulling on socks] and lifting patients. These activities combine both repetition and force being high risk spectrum movements. When determining the significance of contributing occupation/non-occupational factors one must determine whether exposure to the non-occupational environment would have been sufficient to maintain incapacity to the extent experienced by Mrs Coleman. I would have to conclude in my own experience that the non-occupational activities of knitting, sewing, writing and gardening described by Mrs Coleman are hobbies carried out on an irregular basis. Indeed, Mrs Coleman states she has not gardened for many years and done very little craft work in the past 5 years. Mrs Coleman also states that apart from the quilt [which is unfinished] she started in 1992 she has knitted 2 jerseys in the 3 years prior to 1992. This must be compared in the overall context of her overuse syndrome with a 5 year history of working for Southern Health as an occupational therapy assistant and the exhibition of rapid repetitive forceful movements through dressing, crafts, pushing wheelchairs, lifting patients and assisting them with writing procedures also undertaking psychogeriatric diversional activity, music lessons and indoor sports. Clearly her non-occupational activities/environment pales into insignificance in comparison with the movements to which she has been exposed in her occupational environment which is characterised by forceful repetitive hand loading on a daily basis. In my view, therefore, all the conjunctive provisions under Sub Section 1 of Section 7, i.e. the three tier criteria are satisfied in this case." After the respondent had received Dr Turner's report of 16 March 1994 it referred it to its District Medical Advisor who considered that the report confirmed Mr Wilson's opinion that the problem had begun over a brief period when the appellant had been involved in patchwork quilt making in December 1992. The District Medical Adviser considered that the claim did not therefore fulfil the requirements of s.7 as her injury 8 was caused by her non-employment activities. When Mrs Coleman's counsel was notified of this position he again referred the matter to Dr Turner whose further report of 23 June 1994 stated: "Thank you for your further letter dated 7 April 1994 enclosing the Corporation decision regarding this patient. Thank you also for sending me Mrs Coleman's written occupational history in respect of the onset of her symptoms. In the light of these new findings I must revise the indeed withdraw my initial statement regarding causation in my letter of 16/03/94. You will note in paragraph 4 page one I stated that, 'she described in September 1992 the onset of pain in the extensor aspect of her left forearm occurring in relation to ripping material'. It is now apparent that Mrs Coleman was experiencing a very painful left elbow before her quilting course which had been previously diagnosed by her physiotherapist as 'a tennis elbow'. This was confirmed in a reference to her written statement as reagrds (sic) her employment as an occupational therapy assistant working in a sole charge position at Seddon Hospital, Gore. The major part of this work was based in Ward 2 in the geriatric ward and she was involved in intensive hand loaded manual handling in the care of the elderly. Most of the patients were intensive strokes who could not fend for themselves and it was Mrs Coleman's task to assist them with the activities of daily living such as showering, washing and dressing. Here the patients had to be transferred from a wheelchair into a shower chair which involved repetitive power gripping in order to take the weight of the patient on both arms. Once they were seated in the chair she often had to reposition the limbs also reaching underneath the shower chair to wash their bottoms properly. Since the shower chairs were decades old [indeed one of them having no (sic) breaks whatsoever] she had to hold on to the back of the shower chair in order to steady it so the patient could stand up using the rail and then hold on to it again as the patient sat down. Furthermore she had to push the chairs requiring considerable force in the process. Perhaps one of the more difficult tasks was to manually move the patients from the supine position in bed into a chair which she usually had to do on her own. Indeed she had been advised by the nursing staff that they would only help her with a patient if it was 'absolutely impossible for her to solely transfer a patient from the bed to a chair'. As part of the process of undertaking ablution duties on behalf of the patient, Mrs Coleman would often find herself on her knees drying the patients feet making sure that between the toes was completely dry and helping the patient with their socks, trousers, stockings, shoes or slippers whenever they needed assistance. Once the dressing had been completed she would then assist the patient into a standing position steadying them with her left arm whilst the right would manoeuvre the wheelchair backwards so they were able to sit down again and then undertake personal grooming. Following this she was required to move the patient to the lounge or balcony which sometimes involved moving them into a lazy boy chair since they would be sitting for long periods of time and this would be more comfortable for them. The lazy boy chairs had no brakes and had to propped (sic) up against the wall and they were not very good chairs for getting 9 people into or out of which usually meant Mrs Colemen (sic) had to provide considerable assistance by way of manual handling particularly in the case of a stroke patient with paralysis. On occasions she was requested to undertake speech therapy with the patients by the speech therapist, which meant pushing the lazy boy chairs from a smooth hard floor onto a ridge and then over carpet and through into their rooms which took extreme effort and power in the arms. A further factor producing considerable stress to the arms was the fact that the wheelchairs were in a general state of disrepair, many veering to either the left or right, the patients themselves being unable to assist since many had had strokes. The shower chairs had small wheels which made them very difficult to push particularly when the patient was heavy which was often the case with men. Part of the problem in relation to this equipment was funding, the requisitions for correction of faulty equipment being left for many weeks before action was taken. In addition to the actual manual handling of patients Mrs Coleman was also assigned to give patients diversional therapy, an activity she usually undertook after lunch. Diversional therapy sometimes took place in the wards but usually in the OT Department which meant pushing the patients in their wheelchairs down a long corridor struggling through three sets of swinging doors all the while have to steer and correct the chairs which would not steer straight. In summary therefore Mrs Coleman's worked in the main psychogeriatric ward where she cared for some 12 patients involved repetitive manual hand loading in the variety of activities she was expected to undertake in geriatric care. As these patients became older and deteriorated more the work became more intensive requiring greater levels of exertional force in order to complete the appointed task. Furthermore up until 1990 there had been two OT assistants but after her co- worker left she was not replaced and therefore had to carry out the work single handedly. In February 1992 she recalls when caring for a cerebral palsy patient with intellectual handicap that her left elbow became sore particularly as a result of pushing this patient who was extremely overweight in a wheelchair. Mrs Coleman recalls one of the paths outside the main gate of the hospital was very rough and had weeds growing through it as well as having a slope to it, feeling pain in her left elbow when she had to push the wheelchair with her left arm in order to keep it from going into the gutter. A similar situation occurred when negotiating the driveway of the hospital. The driveway was curved and sloped to let water drain into the gutter and all the chairs she pushed had to be forced with more pressure on the left hand side to prevent the chairs from running down the slope. Initially the symptoms were mild, aching and trivial and she took very little notice of them as she expected them to go away. With the passage of time she found the symptoms continued on and in September 1992 she discussed the matter with a physiotherapist who told her she had 'a tennis elbow'. Naturally enough Mrs Coleman was extremely confused by this statement as she did not play tennis and being totally ignorant of the condition did not at that time relate it to occupational overuse. She continued to complain of left elbow symptoms and in discussions with registered staff in Ward One was advised to have a cortisone injection into it. In addition to left elbow symptoms she described right shoulder pain which had previously become stiff and sore particularly as a result of the 10 manual handling patients. A further basis for Mrs Coleman not taking specific action in respect of the pain in her right shoulder and left arm was the fact that she simply perceived physical pain as part of being a female as well as part of the job thinking that eventually it would go away of its own accord. It was therefore with this background that chronic aching work related pain in the left elbow which was sufficiently severe to have caused her to discuss it with a physiotherapist and a charge nurse but not sufficiently severe to induce her to undertake further treatment, that she undertook the quilt-making court in September 1992. This was a five day course, the first day involving learning the techniques. The three middle days involved actually doing the work and in the fifth day winding up and packing up the gear. She continued with some of the sewing when she got home for two days and it was one morning when she woke up with an acute exacerbation of pain in her left arm which necessitated her taking time off work. She subsequently resumed alternative duties after a period of a week off work avoiding lifting of patients as much as possible. She developed a ganglion cyst over the flexor aspect of her left wrist in December 1992 at which time she was beginning to notice that both arms were aching, the pain being worse towards the end of a working week with partial resolution over the weekend. In June 1993 she described having to undertake a considerable amount of writing as part of her secretarial duties with the result that there was an exacerbation of symptoms on the right involving both the extensor and flexor aspect of her right forearm and wrist. She noticed the onset of a cramping sensation in the right hand after half an hour of writing forcing her to stop and exercise her hand. She then had 5 weeks off work in Europe over which time she undertook strict rest, as much as was practically possible with the result that she was free of pain at the end of this time. On return to work on October 6 1993 she suffered a recurrence of symptoms in both arms mainly over the extensor aspect of her forearms, left worse than right, as a result of carrying out the normal duties of lifting and dressing patients. In conclusion therefore there is little doubt in my mind that Mrs Coleman's occupational overuse syndrome condition does indeed fulfil Section 7 criteria in that it arose out of and in the course of her employment as an OT assistant. Clearly her condition has arisen in relation to personal injury at her place of employment and arose whilst performing the employment tasks. Her employment tasks possess properties or characteristics, ie. repetitive and intensive hand loaded manual handling using power and pinch gripping which have caused personal injury by gradual process. In addition, she was required to push patients in dilapidated wheelchairs causing undue strain especially to the left arm through the fact that the wheelchairs tended to veer from the midline. The quilt making course in the light of her prolonged exposure to cumulative trauma as an OT assistant should not be construed as possessing a property or characteristic that is shared with her employment activities. Clearly the risk of suffering personal injury through gradual process through a five day quilt making course is minuscule and therefore insignificant in comparison with the high force repetitive movements involved in manual handling of psychogeriatric patients. A further clue to causality and confirmation that her work was the cause of her condition 11 was the fact that her symptoms waxed and waned in a temporal relationship to her work process after the period of time off work in September 1992 and again in October 1993 when she returned to work from holiday. There was complete resolution of her symptoms when she was away from work on holiday in October 1993. I must apologise for the confusion this may have caused your good self and Dr Murray Sinclair. This case clearly underlines the necessity to take a meticulous occupational history and the need to draw a distinction between employment and non-employment activities in the determination of causality." At the review hearing the appellant gave evidence in which she described the nature of her work at the hospital all of which is detailed in Dr Turner's reports. Mrs Coleman explained to the review officer that the quilting course which she had undertaken was done while she was on annual leave and for which she received no recompense from the appellant. She stated that the course took place in September 1992, but that she had previously complained to the hospital physiotherapist that prior to undertaking that course she had experienced pain in her elbow which the hospital physiotherapist attributed it to "tennis elbow". The appellant said that this took place before she undertook the patchwork quilting course. She also told the review officer that she had spent quite a considerable time writing as secretary for the Hyde Railway Accident Memorial. She said that this work had been completed in February of 1991. The review officer gave a very considered decision in which she outlined the history of the appellant's complaints and the nature of her work and considered the reports of Mr Wilson and Dr Turner and concluded that she should accept Dr Turner's specific diagnosis that the appellant's problem satisfied all the criteria of s.7. It is against that decision which the appellant now appeals. At the hearing the appellant adduced evidence from Irene Henderson, a Manager at Gore Hospital who had worked with Mrs Coleman for a period and from Raymond Thomas Browning, also a Nurse Manager at Gore Hospital, a position he has held for 8 years and from Yvonne Marie Stewart, a Health and Safety Officer employed by the appellant and from Nicola Therese Kitson, an Occupational Manager employed by the appellant. While all the additional evidence appeared to be directed at explaining the nature of the work which Mrs Coleman had undertaken at the hospital and appeared to be directed at saying that the work was not as heavy or as concentrated as Mrs Coleman had indicated, cross-examination appeared to me to take away some of the gloss of that evidence. In my view, the result was that each one of the persons who gave evidence before me conceded that they did not have a full knowledge of all Mrs Coleman's activities at the hospital and that much of what she said could have been correct. Mrs Stewart who is the Health and Safety Officer, when asked whether she was aware that Mrs Coleman had complained of a sore left elbow before she undertook the quilt making course said "I was aware that she complained of a sore elbow 12 at about the same time as they got the ACC gradual process (inaudible). Because I went and saw Mrs Coleman and spoke to her about it." Mrs Stewart acknowledged that it was her opinion that the appellant had not suffered as a result of a work related process. Mrs Stewart conceded that it could be possible that Mrs Coleman had had serious pain in her elbow prior to the quilt making course. In her evidence Mrs Coleman stated that she had had a sore elbow for several months prior to the quilt making course, but had not mentioned it in the application for cover which had been completed by her husband. However, during cross- examination she said that the pain became very significant after attending the quilt making course and initially she had attributed the pain in her arm to the effects of that course. While Mrs Coleman had also stated that she had told the physiotherapist on a number of occasions about her sore elbow, the physiotherapist told her that it was only " a tennis elbow". She said that this occurred before the quilt making course and, as at that time she was ignorant of OOS, she took no further steps to inquire about it. She also said that she had mentioned it to one of the registered staff in Ward One prior to the quilt making course and the suggestion of that person was that a cortisone injection might relieve the problem, but she again did nothing about that. While this evidence was given at the review hearing, there has been no evidence from the staff at the hospital which in any way contradicts it. Dr Hancock has prepared a very comprehensive report which states: Introduction I saw Mrs Coleman in Invercargill on 9th May 1996 at the request of Mr Sara. This report is based on my findings at that consultation and some of the details of the previous reports of Mr P Wilson and Dr W Turner. Overview It is important to establish from the outset that Mrs Coleman's clinical picture is consistent with an overuse syndrome. As I understand it, the matter in question is whether the condition can correctly be classified as an 'Occupational' overuse syndrome (OOS), i.e. acquired in the course of Mrs Coleman's paid employment as an Occupational Therapy Assistant with Southern Health or was acquired as a result of domestic and recreational activities. I feel it is important to point out, that in every case of 'bona fide' occupational overuse syndrome, unless the sufferer does absolutely nothing outside of work hours, he or she will inevitably carry out some non-occupational activities than can or will contribute to or aggravate the condition. Like most things in medical practice the issue is not an absolute 'black and white' one but a matter of degree and proportion. Because an OOS sufferer might comb his or her hair, drive a car to the shops or even carry out some manual recreational activities, it does not necessarily mean that the condition is not predominantly or occupational aetiology, I reiterate that it is a question of degree and proportion. Another important consideration is that OOS is by definition a 'gradual process' and is not caused by a single incident or 13 developed over a short period of time but, as the term 'gradual process' implies, develops slowly and insidiously. When a sufferer is first aware of symptoms these may be of a minor nature, transient and ill defined and are generally not recognised as the early manifestation of a serious condition but are dismissed as 'everyday aches and pains'. In my experience of treating many patients with OOS, there is often a delay of several months between the first onset of symptoms and the patient seeking medical advice. A common story is that the individual, who has suffered symptoms for a substantial period, does something that rapidly escalates the severity of the symptoms. This may be related to a new activity at work, a change in workload or some new or increased activity outside of work. It is this rapid escalation of the condition that leads the patient to first seek medical advice and often the entire condition is ascribed to the activity that has led to the escalation of the condition when a careful history will clearly indicate that the symptoms have been developing over a much longer period as would be expected with a 'gradual process'. The issue is, did the patient become 'ill' at the time the symptoms first developed or at the time when the symptoms were first reported to a doctor? While these general considerations outlined above are, in my experience, common to very many OOS cases they are specifically of relevance to Mrs Coleman's case. Employment Activities The occupational activities I have been asked to comment on are as follows - Lifting patients My impression is that the work activities Mrs Coleman undertook are more properly described as assisting patients. The sort of patients she was dealing with were what might be described as 'semi-ambulatory' in that they could often get around themselves but required some initial assistance with getting from a seated to a standing position or could transfer themselves from say, a chair to the toilet but would need some steadying and support. Mrs Coleman's role would be to provide the support rather than the actual 'motive power'. Providing support in such circumstances would require the arms to be held tense so that the muscles would be working anaerobically leading to the lactic acid build up that is thought to be the basic cause of OOS. Had Mrs Coleman been actively 'lifting' patients her muscles would have been working aerobically and she would have been at greater risk of more acute back strain. In carrying out these steadying/supporting activities the flexor muscles of the upper arms, i.e. biceps and the extensors of the forearms would be used. Pushing wheelchairs Pushing a well maintained wheelchair on a good surface would not be expected to cause OOS, the arms normally would only steer the chair, the motive power would come from the pusher's legs and back as they propelled themselves. As I understand it, the wheelchairs Mrs Coleman had to use were not ideal and tended 14 to veer off course. In such circumstances, considerable force would be needed to be exerted by the extensors of the forearms in keeping the chairs on course. Once again, this would require the muscles to be used in a tense anaerobic fashion. Writing statistics The muscles used in writing and the forces required depend greatly on the person's writing style and the type of pen used. Generally, however, writing uses the small muscles of the hand and to a lesser extent the flexors of the wrist and forearms. Running diversional activities These would be various in nature and would in all probability involve all muscle groups, the more 'craft' orientated activities perhaps specifically involving the small muscles of the hand. Cleaning and clothing patients Once again, Mrs Coleman's activities in relation to this aspect of patient care were more in the line of assisting patients rather than doing everything for the patients. She would need to support the patients whilst transferring from a wheelchair to a shower chair and reposition them into the chair in order that they were washed thoroughly. She had to frequently get into awkward postures in order to ensure the patients were properly washed and dried. Clothing patients would also involve some work with awkward postures and some sustained gripping such as in doing up buttons and putting on the patients socks. Overall, the nature of Mrs Coleman's duties, especially those related to personal patient care involved a considerable amount of activity requiring sustained tension of the wrists and forearms, particularly with the extensor muscle groups. This, I believe, would significantly increase the risk of Mrs Coleman suffering DOS over a person not performing those tasks. Non-employment activities I have been asked to comment on the following non-employment activities. . Writing for the Hyde Railway Memorial I have already commented on handwriting under 'writing statistics' - essentially my comments are the same in that the small muscles of the hand are mainly involved. Shopping and grocery purchase Shopping involves a variety of activities from the large muscles of the legs to walk around the shop to the small muscles of the hands to get money from a purse or 15 wallet. An activity specific to OOS might be pushing a supermarket trolley that refuses to go in a straight line in much the same was as the Gore Hospital wheelchairs. Unless Mrs Coleman's shopping lists were very long, however, then trolleys would not be expected to be as heavy as a wheelchair with a patient in it. Another activity might be carrying bags of shopping - this would involve tension in the flexors of the forearms. Shopping is generally only carried manually over short distances for short periods of time, much of the carrying being in a trolley or in a car. Driving Generally, OOS sufferers find driving is a particular problem for the neck muscles although the extensors and flexors of the forearms will be used in steering. The forces required will depend on how heavy or light the steering is. In my experience, driving is not a significant factor in OOS in the hands and arms. Ironing and household cleaning This is so diverse a group of activities that virtually all muscle groups would be involved. Ironing specifically would involve the flexor muscles of the forearm in gripping the iron, the movement of the iron coming from biceps and triceps working aerobically. Pushing a vacuum cleaner might involve some sustained tension in the extensors of the forearm, wringing out dishcloths would involve some tension in the flexor muscles of the forearm and the pronators and supinators at the wrist. Knitting and sewing Again, this is dependant on the intricacy of the work and whether mechanical aids such as sewing machines are used. Particular muscle groups involved would be the small hand muscles, the extensors of the forearm and supinators and pronators of the wrist. The quilt making course Much of this would have been related to sewing, discussed above. A particular feature of the course was the ripping of fabric which would involve tension of the extensor muscles of the forearms. . Household tasks These have been discussed under household cleaning above. 16 Food preparation Using spoons and knives might involve use of both extensors and flexors of the forearms. The activities are so varied, however, that all muscle groups would be involved at some stage Holding the telephone Holding a telephone to the ear for a prolonged period can result in prolonged tension of upper arm flexors and the forearm extensors. Much has been made of the 'non-work' factors in Mrs Coleman's condition. This may be that she was unusually honest when she completed her ACC Gradual Process questionnaire in listing every possible non-work activity that might have contributed to her condition. It could be argued that every OOS sufferer will in the course of their daily non-work activities write, shop, use the telephone, prepare meals, carry out general household tasks and most will drive a vehicle. A majority will also follow some sort of recreational activity such as knitting, sewing or gardening. If every person who carried out such activities outside work were deemed eligible for an ACC claim for OOS then no such claim would ever be successful. Mrs Coleman was more diligent than most in actually listing these everyday activities on her questionnaire. Opinion I believe Mrs Coleman's condition is OOS. There is no evidence that any other illness such as arthritis plays any part in her condition. Whether non-physical stress plays a part in OOS generally or specifically in Mrs Coleman's case is difficult to speculate as OOS is such a debilitating condition that sufferers frequently manifest 'emotional stress'. Whether that is a cause or a result of the OOS is a matter of conjecture. In Mrs Coleman's case I can find no evidence that non-physical stress was in any way implicated. I believe the properties and characteristics of Mrs Coleman's employment tasks that led to her OOS namely those activities of patient care and transfer that involved sustained muscle tension in the forearms - especially the extensors - were not found to a material extent in her non-employment activities which essentially were those of a 'regular' housewife. Two specific issues in Mrs Coleman's non-work activities do deserve particular attention, however. One issue is that of the writing involved in her work for the Hyde Railway Memorial. This was, I believe, over and above the activities of a regular' housewife. Handwriting, however, tends to cause a particular type of OOS - long recognised as 'Writers Cramp'. This tends to involve the small muscles of the hand and is not consistent with Mrs Coleman's pain in the elbows, forearms and wrists. For this reason I do not believe that this particular non-work 17 activity, albeit out of the ordinary, materially contributed to Mrs Coleman's condition. The other issue is that of the quilt making course and particularly the tearing of material. This, in my opinion, did play a part in her condition in that it led to the escalation' of her symptoms that caused her first to seek medical advice. For that reason her condition may have been wrongly considered to be entirely caused by that activity. That is not the case as Mrs Coleman clearly relates a history of pain in her left elbow from much earlier in 1992 than September when she attended the quilt making course, indicating that OOS was gradually developing (as a 'gradual process' would be expected to) before September 1992. I have little doubt that given the nature of her work, her symptoms would at some stage have become severe enough for her to seek medical advice even if she had not attended the quilting course." After Dr Hancock's report had been received I have received submissions from each counsel. Mr Isac has submitted that Mrs Coleman's initial statement in the claim questionnaire was that it had been the attendance at the quilt making course which brought about the symptoms of her condition and that this is confirmed in Mr Wilson's report. He submitted further that the expert reports provided some conflicting testimony, in particular that the hand writing involved with the Hyde Railway Accident Memorial could have been a causative contribution to her problem. He submitted that on the balance of probabilities it could not be said that Mrs Coleman's non-work related activities are not of a property or characteristic which was to be found to a material extent in her employment activities, but that this is a question of degree and proportion. He submitted that the trigger event which precipitated the onset of significant discomfort was the quilt making course and that on that basis she failed to satisfy the test in s.7(1)(b). Mr Sara submitted that on the basis of Dr Hancock's careful analysis of Mrs Coleman's problems when considered in relation to the criteria of s.7 clearly established that she was entitled to cover. Mr Barnett conceded that Mrs Coleman clearly satisfied the criteria in respect of s.7(1)(a) & (c). He submitted that the critical issue is whether it satisfies the provisions of s.7(1)(b) that the property or characteristic in her employment which caused or contributed to the personal injury is found to a material extent in her non- employment activities. The question in his view was whether the OOS had developed prior to her undertaking the quilt making course. Section 7 states: "7 . Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment --- 18 (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 (6 ) 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." I agree with Mr Barnett's submission and the concessions of all counsel that the critical issue is whether or not Mrs Coleman's condition satisfies the provisions of s.7(1) (b). As I have already said the question of whether or not the appellant's statement that she had made complaints to two of the appellant's employees, being the physiotherapist and the charge nurse prior to her undertaking the quilt making course, has not been challenged and I must accept her evidence on that issue, namely that she was suffering pain in her elbow at that time which she accepted was "a tennis elbow" and for which the charge nurse had suggested could be remedied by a cortisone injection. Mrs Coleman had undertaken a considerable amount of writing for the Hyde Railway Accident Memorial, but that had been completed quite some time before the elbow pain arose. Furthermore, writing was an integral part of her job. I am impressed by Dr Hancock's very comprehensive report which confirms the diagnosis made by Dr Turner. This report was specifically requested to assist me in making a decision and Dr Hancock was aware of the purpose for which it was required and has approached it on that basis. In my view a question of whether or not Mrs Coleman has suffered an injury within the scope of the criteria in s.7 is essentially a medical question and the Court must be guided by the medical evidence. The review officer was satisfied on the evidence before her which required her to make an assessment between the reports of Mr Wilson and Dr Turner and in her view the appellant satisfied all the criteria of s.7. While Mr Wilson stated that the problem arose following the quilt making course he only made that statement as a result of what the appellant then told him. I accept Mrs Coleman's evidence that at that time she did not fully understand the implications of her earlier complaints of pain in the elbow. 19 While I heard additional evidence called by the appellant I do not consider that this takes the issue much further because the report of Dr Hancock, coupled with the reports of both Dr Turner and Mr Wilson satisfy me that the decision of the review officer was correct. The appeal is dismissed. The question of costs will have to be considered and accordingly I invite counsel to make submissions on this issue. DATED at WELLINGTON this 2 day of December 1996 A W Middleton District Court Judge dc206-96(rd)