Lobb v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 24 / 199 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 SUSAN LOBB DCA 486/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of July 1999 APPEARANCES Mr A R Rowlett, advocate for appellant Mr JD Palmer, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant's current symptoms and condition, being diagnosed as chronic generalised pain, is causally connected to the gradual process injury of left lateral epicondylitis (tennis elbow) in respect of which the appellant was granted cover, thereby entitling the appellant to continued entitlements under the Act for that condition. N Background The appellant is now aged 41 years and was until July 1998 receiving weekly compensation and other entitlements in respect of cover which had been granted to her in May 1993 in respect of left lateral epicondylitis. At the time that claim was lodged the appellant was employed as a meat grader by the Ratanui Bacon Company Lid. Whilst the claim was undoubtedly in respect of a gradual process injury the respondent's file would indicate that the usual gradual process questionnaires were not undertaken and there seems to have been no investigation as to whether the criteria of section 7 of the Act could be satisfied and indeed it seems questionable whether the employer was ever advised of the claim. The appellant's GP, Dr Young, who had diagnosed her condition, certified her unfit for three days although it seems no further claim for entitlements were made at that time, save for the granting of cover. In February 1994 Dr Young referred the appellant to Mr Lander, Orthopaedic Surgeon. At that time Mr Lander confirmed the diagnosis of left lateral epicondylitis. The appellant had given him a history of developing pain on the outer side of the elbow while lifting packages of meat at her work in May 1993. He advised that the signs and symptoms in early 1994 were consistent with epicondylitis and the only treatment he suggested was that her GP arrange for the Occupational Health Service to become involved and consider work practice modifications. The evidence is that no further treatment was provided at that time, namely February 1994. In July 1995 the appellant was again referred to Mr Lander with symptoms suggested of left carpal tunnel syndrome. A claim for cover in respect of this injury was made and the appellant underwent carpal tunnel release on 12 September 1995 Following 3 that surgery it was noted by her GP that the appellant was continuing to experience pain in her neck, shoulder girdle, elbow and hand. It was determined that the problem was not carpal tunnel syndrome and that the surgery for it had not resolved the appellant's problems. The appellant was certified as unfit to return to work and the medical certificate issued by Dr Lander stated: Persisting left shoulder and elbow pain with the diagnosis being OOS left shoulder girdle and arm. In 1996 the pain experienced by the appellant extended to her shoulders, chest, neck and back and then into her legs. It was also in both arms and hands. The appellant's problem seems to have been worsening and she was referred by her GP to Mr Wigley, Consultant Rheumatologist. He advised that she had multiple tender points of fibro- myalgia including the ribs and he confirmed treatment with relaxants and the anti- depressant Prozac. A possible diagnosis of ankylosing spondylitis was discounted after laboratory tests and Mr Wigley advised so accordingly. Throughout 1997 the appellant continued to be unfit for work and she continued to receive weekly compensation. It seems that the respondent was prepared to accept the continuation of cover on the basis of it being OOS of left shoulder girdle and arm. In December 1997 the respondent undertook a review of the appellant's file and to that end referred her to Dr Harry McNaughton, a rehabilitation specialist. On 14 May 1998 Dr McNaughton reported to the respondent as follows: The following is an Independent Specialist Assessment of Susan Lobb based on history and examination obtained from her today along with copies of various reports including a Work Capability Assessment from Justice Dineen-Smith of ADAPT Occupational Therapy Services dated 16 April 1997, a letter from Dr Richard Wigley, rheumatologist, dated 13 February 1997, a letter from Tina Russell, occupational therapist, dated 21 January 1997 and 17 December 1996, a letter from Mr Richard Lander, orthopaedic surgeon, dated 22 December 1995, and a letter from Dr Young, general practitioner, dated 22 December 1995. Previous Function There was some confusion over the dates in the various reports. It appears from the ADAPT report and a file note from an ACC case manager on 24 January 1996, that the initial claim was in 1993 while she was working full-time for the Tatanui Bacon Company limited, although Susan herself thinks this might have been 1994. Whatever the exact date, she says her first symptoms occurred the Christmas before this (? 1992, ? 1993) where she had a week off work with some discomfort in the left forearm. This resolved completely. Prior to these initial symptoms she denies any other arm symptoms or time off work with similar symptoms. Description of Symptoms Some time early the following year, perhaps March or April, when she was working for Venison Packers packing meat which was effectively a part-time job which she supplemented with hours at the Manawatu Beef Packers so that she as working in total around 40 hours a week, she developed symptoms in her left hand and arm. She sad (sic) that at Venison Packers she was working in very cold temperatures in overalls with bare arms packing meat. She describes tingling in all the fingers of the left hand and pain in the left forearm, elbow and upper arm. The symptoms in the hand were not localised to the median nerve distribution and the symptoms around the elbow were also general and not lateralised. There were some aches and pains in the right arm as well. She worked with these symptoms for a couple of months before seeing her doctor. On the day that she saw her doctor she woke up with what she describes as 'terrible pain' and was put off work for two weeks. From that time she has never returned to work as her symptoms have never resolved. She eventually had a carpal tunnel release on the left side in September 1995 without nerve conduction studies to confirm the presence or absence of a median neuropathy. She says the carpal tunnel release had no effect on her symptoms. In the intervening two years or so the pain has been getting worse in her left arm and neck and the right arm and by February 1997 when she saw Dr Wigley she also had pain in her back and legs. Current Function The main problems currently are pain in the left arm more than the right arm, pain in the neck, pain in the lower back and aching in the legs. She also describes some numbness and tingling in both hands when driving, especially when it is cold. She denies any swelling of the joints. She is independent in activities of daily living and lives alone. She does the cooking and housework herself but sometimes has a friend to help with the shopping. She says hanging out washing is difficult. She is only able to walk about 10 minutes. She has done no memorable activity over the last 2-3 weeks. She is currently taking Prothiaden 50mg at night along with Amitriptyline 50mg at night and sleeps for around 5 hours. She also takes Disprin and Codcomol when required for pain. Examination She was generally tearful during the interview. Palpation of the neck and shoulder muscles shows general tenderness with occasional tender spots and the tenderness is also present in the arms and forearms bilaterally as well as the lower back. There are no swollen joints. There is dermatitis in both palms but no other rashes and the carpal tunnel release scar is well hidden in the left palm. Neck movements are slightly restricted in all directions. All other joints have full range of motion. Neurological examination of the arms and legs is entirely normal apart from the left ankle jerk which is more difficult to elicit than the right, although it is present. Forward flexion of the lower back is possible to 900 and straight leg raising is pain free to 900 bilaterally. Gait is normal. There is no evidence of specific tenderness over eight lateral epicondyle in the arms and no evidence of sensory or motor loss consistent with carpal tunnel syndrome on the right or left ad (sic) Tinel's sign is negative bilaterally. Assessment of Symptoms Susan has chronic pain syndrome principally affecting the left arm and neck. There is widespread pain and tenderness and I am sure that some rheumatologists and occupational physicians would use the term fibromyalgia' to describe this syndrome. I don't find this a useful term and prefer the more general 'chronic pain syndrome'. I think the evidence for lateral epicondylitis at any stage in Susan's case is weak and I think it unlikely that she ever had carpal tunnel syndrome. The evidence for work relatedness of any of the symptoms is weak and I would not be prepared to use the term 'occupational over-use syndrome'. Apart from pain there is no measurable impairment excepting minor restriction of neck movement. The disability is out of proportion to this. Susan is obviously very distressed by the symptoms and verbalises her fear of increasing activity prolonging the symptoms and making them worse. Fear of activity is a poor prognostic factor for recovery in people with chronic pain syndromes generally. Nevertheless, recovery is possible. Ultimately the decision about ACC's ongoing responsibility needs to be made by one of the ACC medical advisors and I am happy to discuss this if necessary. On the basis of Dr McNaughton's report the respondent considered that the chronic pain syndrome could not be attributable to the left lateral epicondylitis and advised her therefore that her entitlement to continued entitlements under that cover would cease. 6 The appellant sought review of that decision and for the purposes of the review she obtained a report from Dr Richard Seemann, Rehabilitation Specialist. His report dated 14 September is as follows: Thank you for asking me to review Mrs Lobb in respect of a review against ACC's decision to cancel her entitlements on the grounds that medical information indicates she is suffering from a chronic pain syndrome, examination reveal (sic) did not reveal any abnormality, and there is no evidence that the ongoing pain is related to occupational overuse. In completing this report, I had access to letters from Dr Harry McNaughton, Dr Ngaire Schmidt (Medical Adviser to ACC), Mr Richard Lander (Orthopaedic Surgeon), Occupational Therapy Assessments, Dr Jane Grant's Clinical Notes from the Rehabilitation Centre Palmerston North Hospital and a written statement from Mrs Lobb detailing her work activities. In order to answer the questions as laid out in your letter, I would like to fully review the history and current examination findings. Mrs Lobb had worked at the Ratanui Bacon Company Lid for nine years, until made redundant in September, 1994. During that time, her duties varied, mainly involving cook house and smoke house duties as well as slicing and packaging small goods. In mid 1993, she was transferred to dispatch duties which involved making up orders for the delivery trucks. In October, 1993 to March 1994, Mrs Lobb was involved in the processing and packaging of an average of 150 hams on the bone daily (average weight 10 kg). This involved lifting the hams, packaging them and also lifting the cartons into which they had been packed. At this time, Mrs Lobb's left arm became sore and progressively worsened just prior to Xmas when the Xmas rush was on. However, early in the New Year the workload lessened greatly and the pain also improved at that time. The factory subsequently closed in September, 1994 and Mrs Lobb did have a brief holiday before being employed in October, 1994 at Venison Packers in Fielding. This position involved working in freezing temperatures, dicing meat by hand as well as vacuum packing meat in approximately 10kg amounts. She was also involved in rolling and tying roasts. Mrs Lobb states that the cold was a major factor in the development of symptoms because they were required to have bare 7 arms and to stand in the draught of large air conditioners which kept temperatures very cold. Pain and numbness occurred in the left hand and arm at that time. Mrs Lobb then added a job at the beginning of 1995, at Manawatu Beef Packers, to her current work load. She was hoping at that time to leave the Venison Plant and work in what she considered to be more healthy surroundings. She was then working 50 hours a week and during that time the pain deteriorated in the left arm and began to involve the shoulder and the neck. In July, 1995, Mrs Lobb went to her GP and was put off work for two weeks but her symptoms did not ease and indeed the numb feeling in her left hand appeared to worsen. She was then referred to Mr Richard Lander, Orthopaedic Surgeon, in February of 1994, for left lateral epicondylitis. No surgical treatment was offered. In July, 1995, she was referred back with numbness in the left hand and carpal tunnel syndrome was diagnosed. There does not appear to have been a nerve conduction study carried out. Mr Lander performed a left carpal tunnel release on 12 September, 1995. Mrs Lobb considers that this eased the numbness and tingling in her fingers but her pain problems in other areas persisted. She has also been reviewed by Dr Dick Wigley in February 1997, and he reports that the laboratory tests were normal and x-rays of the cervical spine unremarkable. He also comments in his letter 'she has multiple tender points of fibromyalgia'. The current situation is that Mrs Lobb has ongoing pain mainly in her left arm but also involving the right arm, the neck, upper and lower back and in the past she has had some aching in the legs. She still has some intermittent numbness in both hands, although less than previously. Any physical activity with resistance, such as pushing or lifting, causes increased pain and cold weather is also an exacerbating factor. Despite these problems she manages to accomplish most of her housework at a slow pace and she is able to walk short distances i.e. a matter of a couple of blocks, before she has to return home. Sleep is disturbed and she generally wakes early in the morning at 4 or 5am. Her mood has been depressed although she feels that it is less so at present. Mrs Lobb is currently taking Amitriptyline 50mg at night for sleep. She was taking Temazepam but is trying other remedies. On examination she was tearful at times throughout our interview. There was no deformity or obvious joint swelling present in the arms and back. Tinel's 8 Sign was negative in the wrists and ulnar nerve at the elbow. The scar from carpal tunnel release surgery on the left wrist was non tender. There were no focal neurological signs in the arms. A number of myofascial tender points were noted in the flexor and extension muscle insertions in the forearms and the base of the right thumb, mid belly of both biceps muscles over the deltoids, upper borders of both trapezius, the rhomboids, upper neck and lower back. Gait was normal. Opinion: Why (sic) may have started as a localised problem in the left arm i.e. left lateral epicondylitis, has now become a very generalised pain disorder. She fits the diagnostic criteria for fibromyalgia syndrome with chronic generalised pain, more than 13 myofascial tender points, significant sleep and mood disturbance. From the history, it appears like this has been triggered by work ie when the physical load dramatically increased, her symptoms appeared. When she was able to rest, the symptoms settled but subsequently the symptoms have become entrenched and in all likelihood this will be a longlasting (sic) chronic pain problem. It is considered that the prognosis for this disorder is generally quite poor in terms of the likelihood of improving function. It is associated with quite marked mood disturbance and this may need specialised treatment. Dr Harry McNaughton has recommended that she attend a Pain Management Programme and I would be happy to refer her again to the Pain Management Team. I note that this offered to her last year but she refused because her pain levels at that time were very high. You also asked the question as to whether Mrs Lobb has suffered lateral epicondylitis or carpal tunnel syndrome at any stage. Lateral epicondylitis is a clinical diagnosis and I am not aware of any way of verifying this by x-ray or other means. Mr Lander has made this diagnosis and I would accept it on that basis. The diagnosis of carpal tunnel syndrome however, is verifiable by nerve conduction studies. I can find no record of this in her Palmerston North Hospital notes and suspect that the diagnosis was made at a clinical level without any specific investigation. It is therefore not possible for me to verify. Certainly there is currently no evidence of wasting or weakness or sensory loss in the left hand that would fit with carpal tunnel syndrome. I suspect that the grounds for this diagnosis are relatively weak. In a second report obtained by the appellant from Dr Seemann on 12 October 1998 he reported: 9 From the history taken from Mrs Lobb, I am convinced that the epicondylitis and chronic pain disorder developed contemporaneously. While her pain problems are now quite wide spread the epicondylitis was, in my view, a definite triggering factor. Fibromyalgia is not a particularly well understood disorder in medical terms. In my experience there is often a triggering factor eg an epicondylitis or whiplash injury and in other cases the triggering factor is clearly stress or depression. In Mrs Lobb's case, it is the former cause. In her decision of 9 November 1998 the Review Officer confirmed the respondent's decision to cancel entitlement and gave as her reasons: (i) Diagnosis in 1997 consistently focussed on the generalised shoulder areas and implicated the neck, back etc. as did the requests for approval of treatment. Did not focus on the left elbow/arm. ii) Following lodgment of the elbow claim Ms Lobb continued to work up until the carpal tunnel claim was lodged and no medical certification of incapacity had been presented apart from the initial three days in 1993. (iii) Ms Lobb's home activities have been implicated in the ongoing problems (when on holiday they abated). (iv) There is no measurable impairment except a minor restriction (Dr McNaughton). For the purposes of her appeal to this Court the appellant produced a further brief note from Dr Seemann, firstly explaining a grammatical interpretation which is not relevant in this appeal and secondly his statement that the appellant's condition was initially localised and then became more generalised and this was not an uncommon feature of Occupational Overuse Syndrome. Submissions Mr Rowlett, advocate for the appellant, submitted that the issue hinged on the weighting of medical opinion, in particular the respective opinions of Dr McNaughton and Dr Seemann. He stated that whilst both agreed that the appellant's current diagnosis was chronic pain syndrome/fibromyalgia, it was Dr Seemann's opinion that 10 this condition was a progression of the epicondylitis. He further submitted that the respondent had adopted a policy which recognised fibromyalgia as being sourced from OOS, specific incidents of trauma, or spontaneous onset and he submitted that as the respondent had accepted two claims from the appellant which are recognised in the sub-group of OOS then those must be regarded as the source and her condition is an extension of that. Mr Rowlett submitted that Dr Seemann's opinion was to be preferred as it had been based on all the clinical notes including the occupational therapy history that he had obtained from notes from Palmerston North Hospital. He submitted that his assessment of the history identified that he condition was a natural progression from the initial left lateral epicondylitis. Mr Palmer, counsel for the respondent submitted that the chronology of the appellant's condition is important in determining this appeal. In that regard he submitted that the information given by the appellant to Dr Seemann was incorrect as no mention is made of her lodging her claim in May 1993 for epicondylitis and of the fact that it was resolved with periods of rest. Counsel submitted that the epicondylitis was not a major event and it was not the condition that triggered her chronic pain syndrome. He submitted that it was most likely the misdiagnosed carpal tunnel syndrome in September 1995 which was the spontaneous onset of her chronic pain syndrome. Counsel further noted that Dr Seemann had not originally diagnosed left lateral epicondylitis or carpal tunnel syndrome nor was he responsible for treating the appellant and therefore he was not in any better position to judge the cause of the appellant's pain than Dr McNaughton. 11 Decision As was submitted by Mr Palmer I find that an examination of the chronology of events commencing with the appellant lodging her first claim is extremely important in determining the answer in this appeal. The evidence is that the appellant lodged a claim for cover in respect of left lateral epicondylitis in May 1993. The claim indicated that her elbow had become sore with lifting at work. As noted this claim seems to have been dealt with irregularly by the respondent when cover was accepted without the usual gradual process investigation that the respondent's procedures prescribe. It is noted that the appellant had three days off work, being so certified by her GP Dr Young, and thereupon she resumed her employment. The evidence from Mr Lander, Orthopaedic Surgeon, is that she continued to have trouble with her left elbow and Mr Lander diagnosed it as left lateral epicondylitis in February 1994. He advised conservative treatment and to have the Occupational Health Service carry out work practice modifications. The evidence is that she had no more time off work and continued working until August 1995. There is no evidence that she continued to suffer epicondylitis and in fact when she was referred again by Dr Young to Mr Lander in September 1995 he diagnosed a different condition, namely left carpal tunnel syndrome. His report at that time makes no mention of her continuing to have epicondylitis. Mr Lander carried out surgical release of her carpal tunnel which he had identified as being the cause of her then symptoms. It is noted that the appellant did not resume work after her operation and it seems that thereafter her symptoms of regionalised pain became more extensive and more acute. Her GP provided certificates indicating that the pain had spread from her left hand to her arms, shoulders, chest, neck and back. 12 In February 1997 Mr Wigley, Rheumatologist, diagnosed the appellant as having multiple tender points of fibromyalgia. Again there is no suggestion of her having epicondylitis. In May 1998 the appellant is examined by Dr McNaughton and in his examination he advises that there was no evidence of specific tenderness over eight lateral epicondyle in the arms. That is there was again no evidence of epicondylitis which is, of course, the inflammation of the epicondyle. It is also noted that Dr McNaughton could find no evidence of sensory or motor loss consistent with carpal tunnel syndrome and this led him to form the view that it was unlikely that she ever had carpal tunnel syndrome. He noted that prior to her surgery for same she had not had any nerve conduction studies to confirm the presence or absence of a median neuropathy and that the diagnosis seems to have only been clinical. It is of course at this stage that Dr McNaughton confirms Mr Wigley's earlier diagnosis that the appellant is suffering from chronic pain syndrome, which term he preferred to the term used by Mr Wigley of fibro-myalgia. Dr Seemann examined the appellant in September 1998 and he similarly identified the appellant as fitting the diagnostic criteria for fibro-myalgia with chronic generalised pain, she having more than 13 myofascial tender points and significant sleep and mood disturbance. In his report Dr Seemann notes that lateral epicondylitis is a clinical diagnosis and he would accept that diagnosis as it was made by Mr Lander in February 1994. Equally it must be said that he did not make any similar diagnosis at the time he examined the appellant. He was also suspicious of the diagnosis of carpal tunnel syndrome in the absence of verifiable nerve conduction studies. He noted there was no evidence of wasting or weakness or sensory loss in the left-hand that would fit with the carpal tunnel syndrome and as with Dr McNaughton he considered that diagnosis to be relatively weak. 13 The appellant obtained cover for left lateral epicondylitis and then subsequently carpal tunnel syndrome. This latter diagnosis now appears to be questionable in the light of the evidence of Dr McNaughton and Dr Seemann and at the very least their evidence discounts it as being a continuing feature of the appellant's present condition. Neither specialist is suggesting that the CTS has progressed to the current state of fibro- myalgia. This leaves only the epicondylitis as a possible and potential source for the current condition. However if one looks at the history I find that the progression of epicondylitis has in fact not been demonstrated. The Court accepts that Dr Young diagnosed that condition in May 1993 and that he referred the appellant to Mr Lander in February 1994 and he similarly diagnosed that condition. The only treatment suggested was rest and change in work practice. It is to be noted that the flare up of her epicondylitis came after the Christmas rush, that is Christmas 1993. It is also to be noted that the appellant changed her employment in September 1994 and commenced working at Venison Packers in Fielding in October 1994. She said she began to suffer pain and numbness in her left hand and when she was examined by Mr Lander again in September 1995 at which time he did not diagnose epicondylitis but rather carpal tunnel syndrome. The Court can assume that if the appellant was in fact still suffering from epicondylitis which the specialist had previously diagnosed, when he came to examine her for the problems which she then stated to him that she had, he would have stated as much. The evidence is that the carpal tunnel release only resulted in a temporary respite and her general pain in fact began to spread thereafter. It is noted that she had not resumed work. There is no evidence that there was any further diagnosis of inflammation of the epicondyle, despite a progression of pain to various parts of her body and nowhere in 14 any of the medical certificates issued by her GP as to her fitness is it stated that she is suffering from epicondylitis or any associated condition. In February 1997 Mr Wigley, Consultant Rheumatologist, diagnoses the appellant as having fibro-myalgia and there is no indication that this is associated with epicondylitis. Finally there are the diagnoses of Dr McNaughton and Dr Seemann, both of whom diagnosed chronic pain syndrome/fibro-myalgia and there is the negative indicated in Dr McNaughton's report that the appellant did not have any evidence of tenderness over eight lateral epicondyle in her arms. That chronology of events indicates that there is a substantial gap between any diagnosis of epicondylitis and the onset of the chronic pain syndrome and I find that counsel for the respondent's submission has validity when he submits that Dr Seemann has based his opinion on a history which overlooks a significant period of the time between the onset of left lateral epicondylitis in May 1993 and symptoms suggestive of carpal tunnel syndrome in September 1995. If it be accepted that indeed the appellant did not have carpal tunnel syndrome then the gap between the two conditions, namely, epicondylitis and the onset of chronic pain syndrome is just as great and that the onset of that chronic pain syndrome I find has not been causally linked to the appellant's previous epicondylitis which, from all the evidence, had resolved itself well prior to September 1995. For the appellant to retain entitlements under the Act it must be established that, on the balance of probabilities, her present condition is causally connected to the personal injury for which she was granted cover. As I have previously noted the probability of any causal connection between the possible carpal tunnel syndrome and her present condition can be discounted and I further find that the evidence of any connection between the condition of left lateral epicondylitis which first manifested itself in May 1993 but which by September 1995 had resolved, is just not supported by the facts. If one examined the history I find that it does not support Dr Seemann's 15 assessment that the epicondylitis and the chronic pain disorder developed contemporaneously. In those circumstances therefore I find that the appellant cannot discharge the onus which is upon her to establish on the balance of probabilities that there is a causal connection between her current condition of chronic regional pain syndrome and the lateral epicondylitis for which she had been granted cover in May 1993. The respondent was correct therefore in its decision to discontinue entitlements to her for her current condition. This appeal is therefore dismissed. DATED at WELLINGTON this 3 0thday of August 1999 M J Beattie District Court Judge 486.98.Lobb.doc