Television New Zealand Limited v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 297/ 99 IN THE DISTRICT COURT DCA No. 315/97 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN TELEVISION NEW ZEALAND LIMITED Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent AND PETER EDWARD BENNET Claimant Heard at Auckland: 10 September 1999 Date of Judgment: 26 october I aga Counsel: K.W. Reid for appellant D. Tui for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE The issue in this appeal is whether the review authority was right in concluding that Mr Bennet had suffered a work related injury within the terms of the ARCIC Act 1992. Mr Bennet began employment with TVNZ in January 1995. His job consisted of editing video and audio elements of news stories into packages [I:JUDICIAL\Hubblej\TVNZ.doc jab] 2. ready for air. After he had been in the job for just over a year, TVNZ introduced a new editing system known as the AVID system on 12 February 1996. It was during the course of training on this new system Mr Bennet says he developed blurred vision, irritable eyes, headaches and light sensitivity. He claimed that this was an injury arising during the course of his employment which had been caused by his use of the new editing system. He lodged a claim with the Corporation, who sought completion of the GP3 questionnaire by TVNZ, and in this questionnaire they indicated they did not consider it was a result of a work injury. They claimed knowledge of Mr Bennet having worked on his own computer, and being involved in graphic computing design elsewhere. They stated that although a number of their staff had been engaged with the new editing system, none of them had complained of eye strain problems of a kind raised by Mr Bennet. They concluded the questionnaire by stating:- 'This is a most unusual situation beyond our experience. We consider that the particular circumstances which may have triggered the problem could not have been wholly the cause". Dr E. Simpson completed the originating M16 questionnaire and attributed Mr Bennet's symptoms to his employment set up, namely, "using two monitors and scanning from one to the other constantly". Mr Bennet himself described his work tasks and environment which led to his problem as follows:- 'Poor lighting in edit suites. Concentrating on a fixed focal plain for long period of time. Blinds in the edit suites are poor. Difficult to get reflections on screens. Video monitors are above eye level, need to look up at them. We have a new computer editing system called the AVID newscutter. I have been learning to use it so I have 3. spent a lot of hours operating the new system. The newscutter was temporarily installed in an existing edit suite. The set up was not very satisfactory. Because of leaving the existing edit equipment in place with the newscutter the computer monitor was below eye level and the video monitor above eye level and off to the left. It was after using this equipment that my eyes deteriorated." He said that he had not had prior problems. On reviewing Mr Bennet's file in May 1996, Dr Sinclair, the Corporation's District Medical Adviser, was of the view that cover should be declined because Mr Bennet had not suffered any personal injury rather, he just had tired eyes. Prior to the review of this decision, Mr Bennet was examined by Professor Bill Glass, an occupational medical specialist, and his report of 22 June 1996 expressed the opinion that the elements of s.7(a) to (c) of the 1992 Act had been satisfied. Also prior to the review hearing, Mr Bennet was examined by a Paul Dunlop, an Optometrist, and he also attributed the symptoms to the work place. A contrary report was obtained from Dr John Alchin acting for the appellant. Dr Alchin has extensive experience as an occupational physician. He stated that it was most unusual that Mr Bennet's symptoms continued after being out of the work situation. He has no knowledge or a prior similar case, and frankly states that he did not know what to make of the matter. He states in his report:- "I find it difficult to understand any mechanism by which looking at equipment at work could still be causing ocular symptoms (weakness, tiredness, feeling gritty and hot) six weeks after last being at work. That does not seem plausible, and appears to be outside the experience also of Dr Dallison." 4. In March 1997, the matter was referred to the Corporation's medical adviser, Dr Kevin Morris. He noted that although the medical experts disagreed as to whether Mr Bennet's symptoms were the result of an injury under s.4, he noted general agreement that proper diagnosis was asthenopia and hyperphonia, neither of which in his view could be an injury within the meaning of the Act. Dr David Black, an occupational medical expert, also supports the opinion that Mr Bennet's condition does not amount to an injury. His view also is that Mr Bennet was suffering from a visual fatigue which is a self limiting and reversible condition, but he was not aware of any evidence to establish persistent and irreversible changes to the eyes or ocular muscles can be caused by cumulative effects of visual fatigue. The matter was also referred to Dr Dallison, who is a specialist Ophthalmologist. He takes issue with Dr Black's view that there is no correlation between the gradual process injury claims for fibromyalgia (RSI and OOS) and the eye structure. He points out that there are muscular structures in the eye which could be affected by fatigue from repetitive use although he does not mention any known cases. His first report of 8 June 1998 is a brief two page letter in which he concludes:- "In spite of his mild predisposition to developing problems such as Mr Bennet has, one cannot get away from the simple fact that the eye symptoms developed after working on the new AVID news editor system." and thus he considered the matter had been proved to s.7 of the Act. 5. It appears that Dr Alchin and Dr Dallison had some discussions, and both agree that they have not seen a case quite like Mr Bennet's before. In that however, they are referring to his apparent on-going condition rather than the original complaint of eye soreness and sensitivity to light. Having read the analysis and medical reports and the submissions of both counsel and the thorough analysis carried out by S.M. Winter, the Review Officer, it can be said on the balance of probabilities that - (a) Mr Bennet's original complaint of severe ocular symptoms of asthenopia, fatigue, strain, photo phobia and gritty eyes were directly related to the nature of the work he was doing and the work environment in which he was working. I would accept this as a reasonable cause and effect observation; (b) There is no medical evidence to support the view that any of these symptoms or conditions either individually or together are irreversible, and all medical experience presented indicates the expectation that the symptoms would disappear over a relatively short period of time, provided the subject was removed from the work environment; (c) Mr Bennet had minor visual anomalies common in much of the population (astigmatism, accommodation and convergence). There is 6. no medical evidence that any of these conditions was produced by the work place and generally the conditions can be treated or corrected with lenses; (d) A physical examination of the eyes shows no abnormality other than the minor conditions referred to above. The main point of difference in medical opinion is that Dr Dallison is of the view that repeated fatigue and spasm of the muscles would undoubtedly result in damage and inflammation producing the persistent symptoms as noted above, namely, on-going pain and light sensitivity, whereas the other point of view is expressed by Dr Black as follows:- "It seems to me that this case turns on there having been some permanent physiological change caused by the work environment which has now made Mr Bennet more physiologically susceptible. I cannot find any evidential justification for this view, neither can I find a way to justify it on the basis of science as I know it." Decision: This appeal is by way of rehearing. The onus remains with Mr Bennet to establish that on the balance of probabilities he is entitled to cover under the Act. In terms of s.8(2)(b) he must therefore establish that he has suffered a personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined by s.7 or 11 of the Act. Section 7(1) provides:- 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 employment 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." 5.3 "Personal injury" is defined under Section 4 of the 1992 Act as meaning:- "... the death of, or physical injuries to, a person, and any mental injuries suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by Section 8(3) of this Act." Much of the difficulty in this case arises from the fact that Mr Bennet's symptoms have simply not gone away. None of the medical experts have any experience of this occurring to the level claimed by Mr Bennet. This is not to say that his symptoms are in any way imagined any more than symptoms arising from fibromyalgia (FMS) are imagined. Putting aside for a moment the issue of whether or not there has been an injury, all the medical experts accept that the original condition experienced by Mr Bennet was brought about as a result of his work environment. The problem is that within current medical knowledge such environmental factors will only produce relatively short lived symptoms of pain or sensitivity to light. Dr Black raises the possibility of some new condition parallel to FMS (OOS and RSI) is now arising as a result of the far more extensive use of computer screens. Dr Dallison postulates a possible reason as being muscular 8 . fatigue, but there is no evidence of medical experience as to what could cause this on-going problem. One of the diagnoses attributed to Mr Bennet is asthenopia, and I noted that one of the definitions of this condition is described as reflex asthenopia which is plainly brought on by psychological or stressful situations. Were this the case, then s.7(4) may well have application. It provides as follows:- "7(4) Notwithstanding anything in subsection (1) of this section personal injury that is related to non physical stress shall be deemed not to have been caused by gradual process, disease or infection arising out of and in the course of employment." The relevant issue on this appeal is of course, whether or not the original complaint by Mr Bennet should attract cover under the Act. It is not an examination of the nature of his current complaint. In my judgment whatever the findings in relation to the current complaint, Mr Bennet's present status and medical condition would need to be fully examined and separately assessed, because although the medical opinions already presented touch on the issue, Mr Bennet's current medical condition has not been the focus. Was Mr Bennet's original complaint a "personal injury" within the meaning of the Act?: When the Corporation first reviewed Mr Bennet's case, it concluded that no physical injury had occurred within the meaning of the Act. The assessment was as follows:- 9. "Unless there is evidence of actual damage to the body it cannot be said that the claimant has sustained a 'physical injury'. A diagnosis of 'pain' is insufficient to establish that there has been physical injury. An actual diagnosis of the injury is required." Physical Injury: Physical injuries can include the following:- Wounds, lacerations, contusions and the like Burns Sprains and strains Gradual process injuries such as occupational overuse syndrome and industrial deafness Infections or diseases Fractures, amputations or dislocations Blindness A foreign body in the eye Poisoning At that stage Mr Bennet was diagnosed by Dr lan Dallison as having asthenopia which is "a poorly defined subjective condition in which fatigue or discomfort is attributed to some fault of the eyes, in the absence of obvious organic cause of the symptoms: undue fatigue of apparently healthy eyes". Since there was no obvious organic cause of the symptoms, the conclusion reached was that no "injury" had occurred". In my judgment, there is no escaping that there must be proof on the balance of probabilities of a "physical" injury. To the extent that the Act contemplates compensation for mental injury or nervous shock, it makes specific provision in s.4 and s.8(3) (which do not apply here). The Act also rules out any personal injury that is "related to non physical stress" (s.7(4)). I do not believe the cases cited by Mr Tui, namely, CBA 25/98 and AB 118/96 assist the present position. In those cases both His Honour Judge Beattie and His Honour Judge Ongley were of the view that an addiction to marijuana could amount to an injury within the meaning of s.4. However, it was accepted that there was evidence of medical and physical change in the physiology of the applicants 10. brought about by addiction. Proof of the physical aspect is clear in those cases. Neither Judge accepted that the addiction was merely psychological. The Review Officer gained some assistance from the decision of His Honour Judge Middleton in Bell (60/95). Concerning this decision he said:- "3 . That because of the definition in s.4 it is not sufficient to consider the word injury in isolation because the emphasis is on 'physical injury'. In support of this submission he referred to the definition of 'injury' in the shorter Oxford dictionary. 'Hurt or loss caused to or sustained by a person or thing; harm; detriment, damage, especially to the body' and 'physical' as 'bodily rather than mental; involving the body' He then referred to the statement by Lord Diplock in Jones v Secretary of State for Social Services (1972) AC 944 where he said in reference to personal injury 'It must be something external which has some physiological or psychological effect upon that part of the sufferer's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred'. 4. That in the light of the definition 'physical' and 'injury' and having regard to the words of Lord Diplock, the fact that the appellant was aware of the sensation of the shaft against his ear as it came away from the cotton wad does establish that there was some physiological harm to the anatomy. ..." I cannot see that this decision does more than highlight the difference between a definition of "injury" on its own and a definition of "physical injury". The learned Review Officer then concludes:- "SUMMARY AND COSTS After weighing all the evidence, I am satisfied that the elements of Section 7 of the Act have been established on the balance of probabilities. The decision of the Corporation is therefore overturned and I determine that Mr Bennet has cover under the Act for his eye strain problems. His application for review is therefore successful. " In my judgment, it is one thing to establish that a claimant has various "symptoms" such as pain, blurred vision, sensitivity to light etc. but it is another to 11. be satisfied on the balance of probabilities that those symptoms have been "caused" by a physical injury. The question must be asked in this case "What is the physical injury that has caused Mr Bennet to display his symptoms?" I believe one can accept as a matter of common sense that the symptoms have been caused by work related activities, but this leaves the missing link, namely, some evidence that there has been a "physical injury". The learned Review Officer places some emphasis on the reference by Professor Glass to "functional changes", and Dr Dallison, who presents the medical report most favourable to Mr Bennet, postulates the possibility of "muscular fatigue" possibly resulting in "damage and inflammation". He does not however, say that this has occurred in Mr Bennet's case, nor does he present any evidence of it. His evidence is to the following effect:- "I suspect he is developing a combination of muscular fatigue, with both the extra ocular muscles and ciliary focusing muscles along with a degree of accommodating spasm i.e. the ciliary muscle is overactive fails to relax on defocus, this being a well known and documented condition. Repeated fatigue and spasm of the muscles would undoubtedly result in damage and inflammation, producing the persistent symptoms as noted above." All other references by medical examiners are to "symptoms". Dr Dunlop, for example, found that Mr Bennet had minor but nonetheless significant aberrations in the ability of his eyes both optically (astigmatism) and mechanically (fusion) which would undoubtedly predispose him to visual fatigue with demanding ocular tasks. In addition, his reserve accommodation is poor for his age. Variations such as this are a common finding in the working population, 12. and are often corrected but with prescriptive lenses. It is not suggested that any of these physically identifiable shortcomings in Mr Bennet's eyes were in any way caused by a work related activity. They may predispose him to the symptoms under which he is suffering, but again there is no proof of physical injury which has caused those symptoms. It follows from the foregoing, despite the very thorough analysis by the Review Officer of this whole difficult situation (and I see no basis for criticism of his analysis of s.7) I am of the view that there is no proof on the balance of probabilities that Mr Bennet's symptoms have been caused by a physical injury. There is no medical evidence of the physical injury which caused the symptoms. Accordingly the Review Officer's decision must be set aside. I invite counsel to file memoranda of costs, if agreement cannot be reached between them on that issue. (G.V. Hubble) District Court Judge