Tracey Manufacturing Company Limited (Pilkington) v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 52/ 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN TRACEY MANUFACTURING COMPANY LIMITED (PILKINGTON) of Morrinsville Appellant (Appeal No. DCA 208/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 6th day of March 1997 APPEARANCES Jane Rossiter advocate for appellant Ms G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON This appellant has appealed against the decision of the review officer and the respondent which found that the onset of carpal tunnel syndrome suffered by the appellant's employee, Ms Pilkington (the worker), constitutes a work injury under s.7 of the Act. The worker lodged a claim with the respondent in August 1995 that she suffered from carpal tunnel syndrome as a result of her work with the appellant. The respondent requested completion of its claimant questionnaire which indicated that the work task carried out by the worker was "sewing on pocket flaps and buttoning 2 jackets". The medical reports indicated that the worker's problems had probably been "unmasked" by her employment. In a report from Dr Murphy dated 19 October 1995, Dr Murphy said: "I am writing in reference to your letter dated 13 August 1995. I am a little confused as to the date of your letter since you implied a knowledge of Mr Dingwall's report but he did not see her until the 21st August! She presented on the 4th August complaining of pain and tingling in her left wrist and elbow. It was awakening her at night. It was worse when she sewed. Examination suggested a bilateral carpal tunnel, a left golfer's elbow, and a thoracic outlet problem. We referred her to physiotherapy and requested that alternative duties be looked at. She admitted that the problem had developed since she had been employed at Traceys. As you are aware, she suffers from diabetes mellitus. It is possible that she is more predisposed towards getting OOS because of her diabetes but I dont know of any research that would support this. Despite working on light duties she continued to get these symptoms and at this stage they were occurring even at rest at home doing trivial movements. Our only option then was to stop work altogether. As you can see we are waiting for Mr Dingwall to organise nerve conduction studies as he is unclear as to whether her problem represents a peripheral neuropathy pertaining to her diabetes rather than an entrapment problem such as carpal tunnel. I personally would be surprised if the nerve conduction studies suggested a peripheral neuropathy since she has not had diabetes all that long. I am unclear as to her longterm prognosis in this sort of work. I suspect that she should not do this sort of work in future. Despite her pre-existing medical problem I do think it should be under ACC since it was 'unmasked' by her work." The respondent notified the worker that as she had a pre-existing carpal tunnel condition it did not accept her claim as being work related. The appellant applied for a review of that decision and after some administrative issues had been taken the appellant was notified that a review hearing was to take place. The worker appeared at the review hearing but the appellant declined to attend and requested that the issue be determined on the papers. In the result, the review officer held that the type of work and the period of time for which the worker was employed was sufficient to exacerbate her pre-existing condition and that the provisions of s.7 were fulfilled so that the injury could be classed as a work injury. It is against that decision in which the appellant appealed. Ms Rossiter explained to me that while the worker had only been employed by the appellant since 23 January 1995 and the problem had started to develop between February and March of that year, her work was only that of a trainee in a school operated by the appellant for its workers who had not previously been employed in a similar occupation. In addition, before the worker had been taken on she had completed a questionnaire in which she had indicated that she had not previously 3 suffered from a carpal tunnel syndrome so that the appellant was concerned to later find that the appellant had in fact had similar problems which were disclosed in the medical report. The worker's later explanation for this was that while she had had aching in the wrists, she had not been told that it was because she suffered from carpal tunnel syndrome. Ms Rossiter submitted that the appellant did not consider that the nature of the work was of a type which would cause this problem nor had other workers in the factory suffered it. Ms Hancock submitted that following the decision in Innes (20/97) which had adopted the reasoning in Tui Milk Products (18/95) the egg shell skull principle applies to claims under s.7 of the Act. She submitted further that s.7(1)(c) specifically provides that the work task must have "caused or contributed" to the claimant's injury and that it does not therefore need to be the sole cause of the injury. She submitted that on that basis the appeal cannot be allowed merely because the worker had a condition which predisposed her to carpal tunnel syndrome. She submitted further that in order for the claim to be excluded it must be shown pursuant to s.10 of the Act that the worker's personal injury has been caused wholly or substantially by her diabetes. While the questionnaire provided by the worker to the appellant indicated that her interests included jazz ballet and flute playing, there was no suggestion as to how extensive these were or whether they in any way contributed to the worker's problems. The medical evidence, while it establishes that there was a pre-existing condition which was exacerbated by the worker's work, it was the work tasks which certainly caused or contributed to her injury. All the medical evidence clearly demonstrates that at the least, her problems were "unmasked" by her employment. There is no suggestion in the medical evidence that her condition of diabetes was the cause of the carpel tunnel syndrome While it is a concern for the appellant that the worker gave false information as to her previous condition, it would appear that it "was not knowingly provided" and in any event the appellant is precluded from relying upon it by the provisions of s.7(6) which state: "(6) Notwithstanding anything in this section, no person shall be entitled to any treatment, service, rehabilitation, related transport, compensation, grant, or allowance in respect of personal injury caused by gradual process, disease, or infection arising out of and in the course of employment where that person (or the person through whom the claimant has an entitlement in the case of a deceased person) represented himself or herself in writing to the employer before commencing employment, in response to a specific request for the information from the employer, as not - (a) Suffering or having suffered from that personal injury; or 4 (b) Suffering or having suffered from a specified condition likely to materially contribute to that personal injury caused by gradual process, disease, or infection arising out of and in the course of employment -- knowing that representation to be untrue." While the worker's employment with the appellant was short lived and she had been employed on the basis of her statement that she did not suffer carpal tunnel the medical evidence establishes that the working conditions certainly contributed to her condition. I accept the worker's explanation that while she had previously suffered from aching in the wrists she was not aware nor had she been told that that was caused by carpal tunnel syndrome. It must therefore be accepted that when she completed the questionnaire her answer was made truthfully. The appeal is dismissed. DATED at WELLINGTON this /47 day of April 1997 A W Middleton District Court Judge dc20896.doc(rd)