Southpower Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 154 /97 HELD AT CHRISTCHURCH 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 SOUTHPOWER LIMITED Appellant (Appeal No. DCA 374/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of June 1997 APPEARANCES J Greene for appellant R Irving for respondent P E Piesse for the employee DECISION OF JUDGE D A ONGLEY This appeal concerned a gradual process injury and the sufficiency of evidence required to establish the elements of s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The claim for cover was made on 30 January 1996. The claimant's injury was described as "walking - developed pain in knee - prolonged walking at work". The accompanying medical certificate referred to left tibialis muscle strain. In a claimant questionnaire, the employee described his work task as involving walking eight hours a day over a period of seven years resulting in development of pain on the side of his left leg. The medical questionnaire completed by Dr Neil Averis diagnosed probable stress of upper tibia. The diagnosis was connected with his walking and stepping all day every day in his occupation as a meter reader. Dr Averis noted that he was certain this was 100% work related overuse. No non-work activities were identified that could have - 2. contributed to the development of the condition. In a letter of 21 March 1996 Dr Averis confirmed his view that the injury was "very much work related". The claim was referred to Dr Murray Sinclair, the Corporation's medical adviser. Dr Sinclair expressed the view that the injury in question was not a particular risk for meter readers and, while the claim fulfilled the requirements of s 7(a) and (b), it did not meet the requirements of s 7(c). Part of s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992 is set out below for reference: 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. At the request of the Corporation, the claimant was examined by Mr Gary Hooper, orthopaedic surgeon, who gave an opinion dated 5 June 1996. Mr Hooper found no abnormality on examination of the tibia. He said: "1. Diagnosis - The diagnosis is probably anterior tibial periostitis secondary to repetetive walking. 2. There is no obvious pre-existing condition. 3. Treatment - The use of orthotics and the modification of his walking activities is all that is required to treat this problem. 4. Prognosis - The likely prognosis is that this will continue to improve. 5. This appears to be directly related to his work as a meter reader and there are no other significant occupational causes." The Corporation issued a written decision on 28 June 1996 declining the claim because it had not been established that work as a meter reader put the claimant at a significantly greater risk of suffering from that condition than the risk to the general populace, and further that any activity such as walking and non-work tasks would significantly contribute to the condition. The decision refusing cover was taken on review. Before the review application was heard, Dr Kevin Morris, Medical Advisor to the Corporation expressed doubt whether there was any personal injury, in the absence of any abnormality shown on x-rays or on clinical examination. He suggested that the presentation of symptoms was no more than the aches and pains of everyday life. - 3. The review application, heard on 11 November 1996, was successful. The Review Officer had no difficulty in accepting that there was a personal injury and that it had been caused by the employment task of walking. She officer accepted evidence that the claimant would have walked on average 20 kilometres per day as a meter reader. There was no evidence of any relevant non-employment activity. In reaching her conclusion, the review officer set out her reasons as follows: "Mr Piesse said that Southpower has an agreement with the Union representing meter readers as regards medical examinations and the cost of recommended orthotics. I agree with Mr Piesse that this implies that risk of suffering a walking- related condition is greater for meter readers than for other Southpower employees. Although Dr Sinclair has indicated that meter readers are not recognised as being at significantly greater risk of developing such a condition, it is not clear how Dr Sinclair arrived at this conclusion as his comments were not supported by any references. Both Mr Hooper and Dr Averis appear to accept that the cause of the condition is Mr Wells' significant walking in his job as a meter reader, and I consider that it is likely that any person whose job involves such long distance walking would be at significantly greater risk of developing the injury than a person whose job did not involve such walking. I am reinforced in this view by the evidence given about the agreement between Southpower and the Southern Local Government Officers Union. For the reasons given above, I have been persuaded on the balance of probabilities that Mr Wells' claim satisfies the three criteria of Section 7(1) and that his claim for cover should be accepted. Accordingly, the application for review is successful." On the hearing of the appeal, Mr Greene for the appellant submitted that the review officer should not have taken into account any steps that the appellant had later taken to avoid the occurrence of walking-related injuries. Even if the appellant has conceded that meter readers may be at risk of walking-related injuries, it cannot be inferred that the appellant has conceded a risk in respect of the particular kind of injury suffered by the claimant. That submission is logical. It is to be noted that the review officer first accepted that a risk of suffering "a walking-related condition" is greater for meter readers than for other Southpower employees. In reaching her final conclusion, which she rested on the opinion of Mr Hooper and Dr Averis, she referred to "the condition" and "the injury" indicating the condition suffered by the claimant rather than walking- related injuries generally. She concluded that there was a significantly greater risk. That conclusion appears to be eminently reasonable. On the hearing of the appeal, however, Mr Greene submitted that it was based only on inference and not on any specialist opinion. He referred to my decision in Blumhardt 38/97 and submitted that the preferred method of presentation of evidence of risk is to obtain the opinion of an occupational specialist or specialists in order to understand the nature of the employment task, and the relationship between the employment task and the injury, and to give an opinion on the risk comparison required by s 7(1)(c). I think the difference in this case is that the task is an every day activity which is readily understood and evaluated. Assessment of risk is rather more easily approached in this case than in - 4 - cases where, for example, the risk of overuse syndrome involves evaluation of a repetitive keyboard task or stress connected with working posture. The doctors related the injury to walking. There is a clear implication from the medical reports that it is the extent of the claimant's walking that is the significant causative factor. It may be assumed that the claimant's non-work activities include walking. It could be said that the medical reports available to the Corporation do not explain what it is about the claimant's walking in the course of employment that is so significant in identifying the cause of his injury. Dr Hooper and Dr Averis were not asked to address the specific question of material non-work activities under s 7(1)(b) and they did not explain the process of development of the claimant's condition. There is some point in the appellant's argument that the Review Officer's conclusion was based on inference alone. However, Dr Hooper said there were no other significant occupational causes. The impression that can be gained from the medical reports is that the causative activity is simply excessive walking and the exact process does not require further explanation. On the evidence available it is proper to draw the inference that the claimant's condition was caused by the unusual extent of walking involved in his job and that the ordinary non-work activity of walking was not significant. The appeal is therefore dismissed. DATED at WELLINGTON this 4 day of August 1997 D A Ongley District Court Judge