Department of Corrections v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 74 199 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 THE DEPARTMENT OF CORRECTIONS DCA 114/98 'Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent AND GEORGE MARTIN JAHNKE Claimant HEARD on the 11th day of February 1999 APPEARANCES: Mr A Blair counsel for appellant Ms J A Cheyne counsel for respondent Mr N King advocate for claimant 2 DIRECTION OF JUDGE M J BEATTIE The issue in this appeal was whether the Review Officer was correct to confirm the Corporation's decision to accept the claimant's claim for cover in respect of tendonitis in his right elbow and shoulder as being a gradual process injury pursuant to section 7 of the Act. BACKGROUND At the material time, the claimant was a Probation Officer, employed by the appellant and had been so for some seven years. In 1995 and 1996 the claimant had various periods of study leave to enable him to complete a diploma in Social Work at Victoria University. He was so engaged in that study in the latter part of 1996 and it was at that time namely, on 16 December 1996, that he first consulted his doctor complaining of pain in his right shoulder and elbow. The claimant underwent some physiotherapy for his condition and nothing further seemed to have occurred in relation to it until he again consulted his doctor in April 1997 when Dr Fulton diagnosed tendonitis in the right extensor, tendonitis in the right forearm said to be secondary to work overuse. The claimant's claim for cover was treated as a gradual process claim and gradual process questionnaires were completed by the claimant, his GP, and the employer. The employer questionnaire advised that the employer did not consider the injury to be solely work related, contending that the claimant had other responsibilities and activities that could have impacted on the injury. The Medical Practitioner Questionnaire simply stated: "Presented on 16.12.96 with right tennis elbow and tendonitis right shoulder which appeared to be related to key board works. Pain radiated down right forearm." It is to be noted that questions 6 in that questionnaire states: 'What was the duration of work exposure to the presumed cause of the claimant's health condition prior to the appearance of the problem? Is there a pattern of occurrence of these health problems, which may indicate the cause of the claimant's condition? If so, please outline these." To that question Dr Fulton answered "Slow onset over several weeks". After receiving those questionnaires the respondent then instructed ADAPT Occupational Therapy to undertake a work place assessment and such an assessment was carried out by Alison Mcnamara who appears to be a principle of ADAPT and whose qualifications appear to be diploma of Occupational Therapy. Her summary advised of certain practices that may have contributed to the development of his symptoms as being (i) Handwriting style (ii) Method of typing (iii) Chair/desk configuration (iv) Placement of keyboard. It was on the strength of that medical and other information that the respondent accepted the claimant's claim for cover under section 7 of the Act. It was from that decision that the appellant sought a review, contending that his injury could not have been caused exclusively during the period of his employment. No further expert evidence was adduced for the purposes of the review hearing which took place on 13 January 1998. In her decision the Review Officer has seemingly given weight to the claimant's own evidence of his identification of writing and typing as the tasks which gave rise to his symptoms and insofar as the medical evidence is concerned, the Review Officer has relied on the evidence of an occupational therapist. This is somewhat surprising as the Review Officer has identified that this Court has indicated that the preferred method of presentation of evidence is to obtain the opinion of those skilled in the area of occupational medicine in order to evaluate the nature of the employment task and its relationship to the injury complained of. It is somewhat surprising therefore to find that the Review Officer considered that the opinion of an Occupational Therapist came within that category of expertise when clearly it does not. The result of the review decision was that the Review Officer considered that the various criteria of section 7 had been satisfied even though there appears to have been no evidence of an acceptable nature as to the criteria of any of the three subsections which required to be satisfied. During the course of the hearing of this appeal the Court identified the foregoing deficiencies and there seems to have been acceptance by all counsel that indeed those deficiencies existed. It did transpire that there were three items of medical evidence which were not available to the Review Officer being correspondence with the claimant's GP by Dr Wigley, Consultant Rheumatologist, and Mr E W Jamieson, Orthopaedic Surgeon and a letter from Dr Fulton to the respondent, these latter two postdating the review hearing date. These letters in my assessment do not cover the issues that require to be determined, they were not created for that purpose and therefore have very little value to save as to indicate that in the case of Mr Wigley and Mr Jamieson, those two medical specialists have examined the claimant and ought to be in a position to give the necessary expert opinion in the areas that this Court requires for the purposes of determining entitlement to cover under section 7 of the Act. As previously noted the evidence is quite deficient for a proper determination of a claim for cover under section 7 of the Act and certainly the principles enunciated by His Honour Judge Ongley in Click Clack International v ARCIC (61/95), namely that there is a duty on the respondent to be satisfied on reasonable grounds that the requirements of section 7 have been established and that to reach that stage of satisfaction the respondent must make reasonable inquiries before making a decision which can affect an employer, ought to be adhered to. Those inquiries must include a 5 work place assessment and a biomechancial task analysis and opinion regarding biological plausibility. To put it another way, there is no evidence which indicates which particular task or tasks caused a strain to which particular muscles, tendons, nerves or such like and which are consistent with the diagnosis of the injury as made. Generalities such as repetitive strain injury, Occupational Overuse Syndrome or similar are simply generic terms and do not identify the particular components of section 7(1)(a) which in the absence of disentitling factors stated in 7(1)(b) and 7(1)(c), clearly identify the employment task as being the cause of the symptoms or injury which the claimant is displaying. It was counsel for the appellant's submission that this Court should deal with this appeal on the merits and if it came to the view that there was insufficient evidence for the decision to have been made as it was then that decision should be revoked. That of course would be a decision which would be most favourable to the employer. However I consider that such a decision would be unfair on the claimant. It is not the claimant's fault that this claim has reached the stage of an appeal to this Court when the evidence is manifestly deficient in its basic requirements. The onus is not on the claimant but on the respondent and it is the respondent who has failed in its duty to both the appellant and claimant in the manner in which it has considered this claim for cover. The claimant presumably still has the benefit of cover and any entitlements which that may provide and I consider that it would be inequitable to simply have that cover cease at this time by reason of the inadequacyes of the respondent's investigation. Similarly from the appellant's point of view, it is a Department of State and no doubt will have an ongoing relationship with the respondent in terms of liability under the Act and that any present attribution which it is enduring can be corrected in the event 6 that at some future time the claimant is found, after proper investigation, to have not been entitled to cover. Accordingly then, I propose to adopt the course which this Court has done on several previous occasions and refer the matter back to the Review Officer for her to conduct further investigation and obtain the proper and necessary expert advice as to whether this claimant is entitled to cover under section 7 of the Act. This direction back is made pursuant to rule 16(2) of the Appeals Regulations and I direct that after due investigation the matter is reconsidered by the Review Officer and a fresh decision is delivered so that all parties to this appeal shall enjoy an additional right of appeal pursuant to section 91 of the Act in respect of that further decision. DATED at WELLINGTON this 24 day of March 1999 Denther M J Beattie District Court Judge Jahnke.doc(gm)