Trent Nurseries Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 148 /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 TRENT NURSERIES LIMITED Appellant (Appeal No. DCA 239/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of June 1997 APPEARANCES J Penny of appellant company C Taylor for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a dispute whether a shoulder tendonitis injury was caused in the course of the claimant's employment with the appellant and whether it met the conditions for a gradual process injury under s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. Miss Rich, then aged 23 years, lodged a claim for cover on 25 July 1994 describing a right shoulder injury caused by the repetitive action of potting causing painful discomfort. In the claimant questionnaire, she listed her relevant work task as putting plants into pots and into trays, then down on the ground. The task involved moving her right arm from left to right picking up and putting down pots. The suspected - 2 - injury resulted in aching at night which she said she first noticed about 4 months before her application for cover. The appellant informed the Corporation that it disputed that the claimant's injury was work-related. In reply to a questionnaire, the complainant said that she had commenced her 1994 seasonal work with the appellant, working part-time in May. In answer to the question: "Did you have any pain prior to going on to seasonal, rather than full-time work? " she wrote "Aching in right shoulder at night now and then", which appeared to mean that she had experienced some shoulder discomfort before beginning work with the appellant in that year. A further series of questions was asked in a letter to her of 23 August 1994 but she did not reply because the questions appeared to be related to a single event accident or onset of acute symptoms which did not address the circumstances of Miss Rich's claim at all. The Corporation notified the appellant on 10 January 1995 that the claim met the criteria of a work injury as defined under s 6 of the 1992 Act. The appellant applied for review. The review hearing was commenced on 22 June 1995 but, after hearing some evidence, the review officer obtained agreement from the parties for the claimant to be examined for a specialist medical opinion concerning the origin of her injury. Dr Julian Kirk provided a very detailed report on 4 September 1995 following which the review officer, after some delay, issued a decision declining the review and confirming the Corporation's decision that this was a work injury as defined in the Act. She commented that the claimant appeared to have had little pain and almost no interruption in her ability to continue her employment tasks, but nevertheless she had a valid claim for cover. Before dealing with Dr Kirk's report it should be noted that there are two apparent errors which, the appellant contends, have lead to an unfair or incorrect decision. The first error was a comment by the review officer that Dr Kirk's report indicated that any employee carrying on the repetitive action involved in the claimant's work task would eventually develop pain. That was an overstatement of the opinion expressed by Dr Kirk. But even so, I am satisfied that there was abundant material in Dr Kirk's report to establish that there was a significantly greater risk of suffering the claimant's personal injury for persons performing her employment task than for persons who did not. It is not necessary to consider whether everyone, or whether most persons, would be at risk. It is only necessary to consider whether the risk was significant for persons like the claimant. Fortuitous eventualities are not covered under s 7 of the Act because the injury in question has to be linked to a work task or work environment risk. The risk has to be significant. That question is clearly answered by Dr Kirk's opinion that the injury in question is not uncommon and it was caused by a specific repetitive arm and shoulder motion. The second apparent error concerned the work history taken by Dr Kirk. The appellant provided a work history set out as a chronology as follows: "Pre Trents Work included making pizzas, Nursery & Vineyard work Sept 1992-March '93 Worked at Trents as a seasonal worker April '93-Aug '93 Worked picking apples and making pizzas - 3 . First experienced soreness in shoulder. (See Dr Kirk's notes.) During this period she was not working at Trents at any stage. Sept '93-Feb '94 Seasonal work at Trents which became permanent in Feb. March '94 First reported soreness and visit to Doctor. Coincided with two other claims against Trents for RSI's both of which were rejected on appeal from Trents. July '94 Claim for cover and treatment costs Present Day Still in full-time employment at Trent's having both never reporting an injury occurring or having a day off as a result of the diagnosed RSI." Unfortunately, the transcript of evidence at the review hearing has been lost. On the appeal, the respondent did not dispute the chronology put forward by the appellant. The point which emerges is that the claimant first suffered shoulder soreness in a period of seasonal work when she was not working for Trents but was picking apples. The history recited by Dr Kirk described her various employment tasks over a period of time, with particular reference to the kind of movements that might or might not be associated with specific tendon strain of the kind that he diagnosed. He mentioned that the claimant had worked for a pizza factory where she performed repetitive arm movements with her right arm in front of her body. She then worked at a nursery where she was employed pricking out seedlings, a process which Dr Kirk inquired into and found that it did not involve repetitive actions of the kind which caused her shoulder problem. He then described, in a similar way, her movements at her next job, tying down canes of grapevines between seasons. He said that she began working for the appellant as a casual worker in 1992 which is not in dispute. He said that she worked 7 - 8 months of the year as a casual worker for Trents Nursery, and in the other parts of the season she would be picking apples or return to making pizzas. Dr Kirk then said "During that period, sometimes at Trents, she would notice a minor discomfort in her right shoulder in the evening after picking apples". The problem with that comment is that it implicates apple picking with the onset of symptoms. It implied an assumption that she was picking apples at Trents, whereas that is not the case. There is a later comment in Dr Kirk's report which confirms that he thought the apple picking occurred at Trents. Bearing that in mind, it is necessary to examine the rest of Dr Kirk's report to understand what firm conclusions he reached, and what conclusions may have been influenced by a mistake in understanding that the claimant picked apples while employed at Trents. If the answer is unclear the appeal hearing could conceivably be reconvened or concluded with further evidence from Dr Kirk and written submissions thereon. Dr Kirk described the repetitive action that the claimant carried out while potting during her seasonal employment with the appellant for 7 or 8 months of the year. He said that the action of moving her right hand back in a horizontal plane when lifting the pottle out into a tray was characteristic of producing her shoulder pain "in the bulk of the time". He said: - 4. "The only exception to this would have been that she seems to remember getting pain in the right shoulder after picking apples, not during it, whereas the pain doing potting was actually during the activity as well as at the very beginning coming on at night only and she sometimes gets a similar pain in the front of the right shoulder lifting heavy trays of pots from a lower height. Essentially the pain is one when the right dominant arm is swung through a travel of rotation to the sideways positions of the body and behind so the arm might lie in the horizontal plane behind the back and this corresponds to certain specific tendons She thinks that she may have been getting a minor degree of this same discomfort, not enough to report it, when she was potting working part-time at Trents and it never caused her to cease work as she would normally work the usual 10 minute tea breaks and half-hour lunch, working 8 to 4.30 not weekends and at the most she would briefly stop doing potting and give her shoulder a bit of a shake to loosen it up and then resume with the shoulder again reasonably comfortable. The reason for the reporting of the condition on the date of 20-3-94 was that that corresponds to the return of the claimant to duties at about that time and for the first time she was full-time and was made a supervisor of potting." It seems from the whole of the material that she had suffered minor discomfort off and on for some time. If the times when she experienced discomfort were determinative, it would obviously not be possible to say that the potting task at Trents was the only activity that was implicated. Dr Kirk went on to refer to the kind of pain that she suffered at night, also to a slight similar condition developing in the left shoulder, neither of which appeared to be of any serious import. He diagnosed her condition in the following way: "When she reported to Dr Kerr he said it sounds like Repetitive Strain Injury which might have perhaps been an over-generous use of that term which has rather different connotations in different situations, particularly office situations with typists doing repetitive activity whereas I believe from the history that this worker had a mild degree of a fairly straightforward overuse tendinitis of a specific, rather narrow group of tendons in the top and back of the right shoulder giving pain in the front of the shoulder and it was a result of this specific activity of sideways horizontal movement of the upper arm to the side and even beyond behind the back. It might occur occasionally on lifting up such as at home when she is hanging out the washing or after picking apples earlier and sometimes at work when she is picking up a heavy box of plants which is a different activity from the others which involve elevation of the shoulder above the arm." Dr Kirk said that the shoulder pain was minor and that the claimant reported only in order to identify what it was. She was able to do some alternative work but she preferred to continue potting. She did not experience any pain in domestic activities, and it appears that she did not need to take any time off work. Dr Kirk described her slight limitation in specific physical movements that led him to a conclusion that she suffered irritation of the three tendons that are responsible for sideways movement of the shoulder into the posterior region in the horizontal plane which is specific to the act of potting and "also when she elevates the arm to hang out washing or picking - 5- apples". The specific tendons are the supraspinatus, infraspinatus and teres minor. He said that: "Although the specific activity of potting is the main cause of this tendonitis with some pain also after arm elevation apple picking both at the same site of work, it seems that the impression I got was that the symptoms were mild and that it should not be difficult to alleviate them by a change of work pattern.' It is clear from his report that he implicated the potting activity as a specific activity that led to irritation of the tendons in question. That is the second reference indicating that Dr Kirk thought that the apple picking and potting activity were both done at Trents. That mistake affects the weight to be given to his opinion. However, it does not mean that the opinion should be discarded. While taking account of that error, it is clear from a reading of the whole report that he has identified a specific activity with irritation of a specific group of tendons. He clearly identifies the arm movements used in potting with irritation of the three tendons in question, but he refers to apple picking as a motion which results in some pain. He said also in his report: "My opinion is that it is a work injury of a gradual onset type due to tendon overuse, it is not likely to lead to time off work or any permanent physical consequences and indeed it is the kind of pain which, in the home situation, a person who does weekend gardening will be very prone to get and would, because of the circumstances probably have a spell or do something different for a while. There appear to be no non-occupational causes for this lady's pain, she plays no sport and does very little apart from household physical activity which is reduced because she lives with her parents. She drives her car which is a light controlled Daihatsu some distance from Styx Mill to Prebbleton each day without shoulder discomfort. If there is any responsibility for the condition which it, although mild, has been notified as an injury and does seem to qualify, then it would appear to be consequent on Miss Rich's work at Trents Nurseries and the only significant pain outside this establishment is the night pain which comes from the day activity or pain which spells over into the weekend when she hangs out washing but this would be caused by the activities of nursery work." Mention of weekend gardening is obviously intended to illustrate that a similar kind of transitory irritation can occur in non-work tasks, but nevertheless Dr Kirk was clear in his view that potting was the main cause. Those facts have to be applied in consideration of the requirements of s 7 of the Accident Rehabilitation and Compensation Insurance Act 1992, the relevant parts of which are as follows: 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 - 6- (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. (2) Nothing in subsection (1) of this section shall require that the property or characteristic be present throughout the whole of the person's employment. The review officer accepted that the employment task had a property or characteristic which caused or contributed to the personal injury by gradual process. That finding is obviously correct. In considering the second requirement, whether the property or characteristic was found to any material extent in the non-employment activities of the claimant, the review officer said that there was no evidence of any such non- employment activities. That is the question that has to be dealt with on appeal, because it appears that the apple picking was a non-employment activity so far as the present appellant is concerned, that is to say that it did not occur in the employment of Trents. The review officer may only have considered the possibility of domestic gardening which she correctly found was not an activity that was material to the present question. Because of the apparent error in Dr Kirk's understanding that apple picking was part of her employment tasks at Trents, the question has to be considered afresh on appeal. I find nothing in Dr Kirk's report to indicate that he thought that apple picking could have caused the very specific tendon irritation that he diagnosed. Various possibilities exist, two of which are, first that tendon irritation occurred at Trents in 1992 and was symptomatic when the claimant picked apples in the 1993 winter season. Secondly, it may be that there was some minor tendon irritation but the specific group of tendons to which Dr Kirk referred, were involved because of the specific employment task at Trents during late 1993 and up to July 1994 when she claimed for cover. Notwithstanding the uncertainties, I am satisfied from Dr Kirk's report that the property or characteristic resulting in irritation of the three tendons together was not found to any material extent in apple picking. The third limb of s 7 does not provide any difficulty in this case because it is clear from the medical evidence that the risk of suffering the personal injury was significantly greater for the claimant when carrying out her employment task than when not carrying out that employment task The appeal will be dismissed, but with a cautionary note that the injury that the claimant developed while in the employment of the appellant has not been shown to involve anything more than a temporary tendon irritation. It is not described by Or Kirk as being connected with any permanent tendon damage. Indeed, the symptoms appear to be easily alleviated and they are not sufficiently serious to cause - 7- the claimant to change her work habit to any great extent. Some care should be taken to ensure that she is not causing permanent damage by continuing to engage in the task that has to this stage caused only a minor degree of irritation. It appears that there has been little cost to date in connection with the claim, other than the cost relating to diagnosis and the present proceedings. If, in the future, there are more severe symptoms, there may be a serious question whether they are attributable to the species of work injury that the claimant had suffered when she lodged her claim in July 1994, or whether they are caused by some other tendon irritation or, more importantly, by her continuing to carry out the same work task notwithstanding the temporary symptoms which she has suffered. It would be unfortunate if a temporary discomfort grew into a permanent or more serious problem by reason of her continuing inadvisedly to do the same work. For the reasons given the appeal is dismissed. DATED at WELLINGTON this 14th day of July 1997 D A Ongley District Court Judge