Burgess v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 99 199 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 TRUDY LIANNE BURGESS DCA 285/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 15th day of March 1999 APPEARANCES: Ms T L Burgess in person Mr A D Barnett counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to decline cover to the appellant in respect of her claim for a gradual process injury, being an occupational overuse injury . 2 BACKGROUND At the material time the appellant was aged 23 years and employed by Green Gold Nursery as a Horticulturist. She commenced her employment with that firm in February 1997. She had previously completed a diploma of Horticulture at Lincoln University. Her tasks at the nursery included filling seed trays and stacking the same, pricking out these trays, replanting, watering, weeding and scrubbing. Many of these tasks were done with her hands extended at or above waist height and a considerable amount of repetitive work was involved in any particular task. She began to notice that her arms were painful and her hands would be swollen and matters got to the stage where she consulted her GP, Dr O'Neill-Kerr, on 26 July 1997. Her GP diagnosed bilateral medial and lateral epicondylitis; forearm pain; neck pain. Her doctor prescribed a course of physiotherapy and she had her first physio treatment on 28 July 1997. In addition to her GP prescribing physiotherapy, he also referred her to an Occupational Therapy organisation known as Enable O.T. Ltd., and an occupational therapist carried out a work place assessment on 20 August 1997. After investigation of the appellant's work tasks and method of work, Ms Wright the occupational therapist, made several recommendations as to how these tasks could be carried without causing the problems that she had been experiencing and this advice was accepted by the appellant. The appellant and her GP completed gradual process questionnaires and the respondent thereupon sought further medical opinion from Mr J G Lester, Orthopaedic Surgeon, and Mr Lester examined the appellant on 28 August 1997. Mr Lester reported to the respondent, inter alia, as follows: "HISTORY OF CONDITION Ms Burgess states that two weeks prior to seeing her doctor in July of this year, she noted the development of a feeling of tension in both forearms and this extended to the upper arm. She then noted that her hand and arms were rather swollen in the mornings and this concerned her and led her to seek advice from her doctor. She states she had no accidents or incidents prior to the onset of this condition. . .. CURRENT STATUS This lady currently complains of pain in both arms, left being rather worse than the right. The pain is localised mainly to the back of the forearm in the area of the extensor musculature and also over the outer side of the upper arm. The pain extends up into the shoulders and neck region particularly on the left side of the neck. She has also noted weakness of grip and a feeling of weakness in the shoulders and an inability to hold her arms up for any length of time. She has not had any specific problems at night. ... PHYSICAL EXAMINATION Ms Burgess presents as a co-operative and pleasant lady of rather slight build. She is dominantly right handed and she tends, while sitting during the consultation, to rub and massage the muscles in her left arm, presumably to try and obtain some relief. She has difficulty in raising her arms with ease and her upper limbs appeared rather weak. 4 There is a full range of movement in her neck, shoulders and the other joints of her upper limbs. Impingement tests in the shoulder area were negative. No muscle wasting was noted. There is some generalised muscle tenderness to palpation in the muscles of both arms, particularly in the forearm. The provocation tests for median nerves was negative on either side. Sensation in the hands was normal. I could not detect any specific clinical evidence of lateral epicondylitis although there was a significant tenderness over the lateral epicondyle but her middle finger test was negative. SUMMARY In summary therefore this lady presents as a person who has developed a general feeling of weakness and discomfort in both upper limbs extending throughout the limbs and being rather more evident on the left than the right. Over the past four weeks, she has found that the general overall situation has improved although she has not returned to her normal activities and condition. With regard to the points raised in your letter, I would make the following comments: (1) The diagnosis would appear to be that of general overuse problem in both upper limbs. I could find no specific evidence at the present time of lateral epicondylitis. (2) The long terms prognosis I would expect to be good but it may take some period of time for her symptoms to gradually resolve. (3) I am not aware of any pre-existing conditions of relevance. ( 4 ) There are no none(sic) occupational activities of relevance. The matter of her massage work during the natural medicine course has been raised but this was not been undertaken repetitively but, rather intermittently during her natural medicine course. Therefore, I do not think it is relevant to her current problem. (5) With regard to the relationship to her work Miss Burgess states that her employment required her to do a lot of work at a rather high level for her arms, leaning over pricking out plants, watering and pruning and trimming plants. There was also some carrying of seed boxes etc. I consider that this type of activity particularly with the arms being used over an extended period at shoulder height rather than waist level could be a significant contributory factor to the onset of this type of condition. It is also perhaps of importance to note that she states that 7 other people at her place of work have been similarly affected. I would however have no details of this. In summary therefore, this lady would appear to have an upper overuse problem, without any specific structural damage, which is gradually tending to resolve. Her work activities as described to me could be a significant contributory factor in the development of this condition. I do not consider there are any non-work or pre-existing conditions applicable. I am not aware of there being a known tendency for persons in this type of work to develop this condition but as has been pointed out above, she states that several other personnel at her workplace have been similarly affected but I would not have any details of their situation." After considering Mr Lester's report the respondent did, by letter dated 7 November 1997, advise the appellant that her claim for cover had been declined. The reason 6 given for declination that there was no medical evidence of personal injury to satisfy section 4 of the Act. The letter advised that it was relying on the advice of Mr Lester in that regard. The appellant thereupon sought a review of that decision and a hearing took place on 11 February 1998. As a result of submissions which were advanced on the appellant's behalf at that hearing the Review Officer resolved to seek further expert evidence from an Occupational Physician and duly arranged for the appellant to be seen by Dr Alchin. That appointment was for 18 June 1998. The appellant elected not to see Dr Alchin and gave as her reason that any such an appointment would be a waste of time as the injury had long since passed and it would not be possible for Dr Alchin to accurately determine the nature of her injury. She contended that such an inquiry should have been undertaken considerably earlier. The fact of the matter is that the appellant had resumed work at Green Gold Nursery without much interruption and continued working there until November 1997 when she left of her own volition. She therefore considered that by the time Dr Alchin would have been involved neither the injury nor her work place situation existed. In his decision the Review Officer relied on the statements made by Mr Lester and confirmed the Corporation's decision to decline cover. For the purposes of appeal to this Court, the Court received advice from Dr Le Guen, registered Osteopath and it was provided with copies of a report from the Physiotherapist to whom the appellant had been referred by her GP. In addition, the Court has seen the appellant's GP's clinical notes of her various consultations with him and further, the Court has been provided with particulars of the various consultations which the appellant had with her Physiotherapist. From those 7 notes it can be seen that prior to the appellant seeing Mr Lester, she had had 11 physiotherapy treatments, the most recent before seeing Mr Lester being a one hour consultation on 27 August, the day before her examination by Mr Lester. In addition, she consulted her GP on a number of occasions prior to seeing Mr Lester and Dr O'Neill-Kerr advised the Court in a note as follows: "Trudy first saw me on 26.7.97, she was complaining of pain in both forearms, elbows and neck and numbness in both hands. She was working in a nursery at the time and was doing a lot of cleaning, scrubbing, lifting plants and general nursery work. After examination I made a diagnosis of bilateral medial and lateral epicondylitis and possible tendonitis, with some cervical muscle spasm. Trudy was referred by myself to Ettie Van Stolk a physiotherapist who specialises in OOS. On follow up appointments Trudy had shown improvement with the therapy and saw Mr Lester after improvement had already been documented in her case notes. Trudy had a flare up of symptoms again in July 1998 which improved with therapy." RELEVANT STATUTORY PROVISIONS "Section 4: Personal Injury means: the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person..." "Section 7(1) : 8 (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 (6) 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." SUBMISSIONS Ms Burgess submitted that there was clear evidence of personal injury. She contended that in addition to the pain in her forearms she had impairment of bodily function and her injury had been diagnosed by her GP at the time she had experienced it. She submitted that by the time she saw Mr Lester her injury had improved markedly, both because of the substantial number of physiotherapy treatments that she had undertaken, and also from the improved work techniques that she had undertaken on the advice of Mr Wright, the Occupational Therapist. She further stated that she was aware that other employees of Green Gold Nursery had had claims for similar OOS injuries accepted by the respondent. Mr Barnett, counsel for the respondent, submitted that the question of whether there was a personal injury required an evaluation of the evidence and he pointed to the fact 9 of Mr Lester not being satisfied. Furthermore, he submitted that the criteria for section 7 had not been met and that even if the Court were to find that personal injury had in fact occurred there was insufficient evidence, and the burden of which is on the appellant, to satisfy the necessary criteria for sections 7(1)(a), (b) and (c). DECISION In considering the issue which is to be determined in this appeal I find that it is important to have regard to timing. This appeal is from a refusal of the respondent to grant cover to the appellant in respect of a gradual process injury said to have arisen out of her work tasks as a Horticulturist with her employer, a Christchurch nursery. The appellant made her claim for cover on 27 July 1997 and it was at that time that her GP, having examined her, diagnosed bilateral medial and lateral epicondylitis and he prescribed a course of treatment for that condition. It was for that condition that the appellant sought cover. In the way that claims are administered, particularly those that are claims for gradual process injuries under section 7 of the Act, the investigation of the claim of necessity took some little time and for perfectly understandably reasons the respondent sought to obtain the opinion of an Orthopaedic Surgeon as to her injury. In the letter of instruction to Mr Lester he was advised that the appellant had lodged a claim for bilateral medial and lateral epicondylitis forearm pain and neck pain. In addition to diagnosis, Mr Lester was requested to consider the relationship of the diagnosis to her occupation and the relationship of the diagnosis to any non-occupational activities. It is to be noted that by the time the appellant saw Mr Lester on 28 August 1997 a month had elapsed since she had first consulted her GP and she had had a course of some 11 physiotherapy treatments for her condition. 10 It is to be noted that epicondylitis is in fact the inflammation of the epicondyle or of the tissues adjoining the epicondyle of the humerus. This Court takes it that the course of physiotherapy that the appellant underwent was intended to resolve that inflammation. The respondent's reason for declining the appellant's claim was the advice of Mr Lester that he could find no specific evidence of lateral epicondylitis, and that whilst she appeared to have upper limb pain consistent with overuse he could not discern any specific structural damage. I find it significant that Mr Lester's exact words were "I could find no specific evidence at the present time of a lateral epicondylitis." If one considers that statement and correlates it to the advice given by the appellant's GP, Dr O'Neill-Kerr that he made a diagnosis of bilateral medial and lateral epicondylitis with some cervical muscle spasm and that by the time she saw Mr Lester her injury had already improved, it is probable that her injury was at a stage where the clinical effects of the epicondylitis had been resolved. There has been no suggestion that bilateral medial epicondylitis does not constitute personal injury within the meaning of section 4 and I therefore find as a fact that the appellant did so suffer from that personal injury as it had been diagnosed by her GP, Dr O'Neill-Kerr, on the 27 July 1997. Although the Review Officer was content to limit his finding to the question of whether or not the appellant had suffered a personal injury, nevertheless, it was open to the Review Officer to continue and consider whether the various criteria of section 7 had been satisfied. The fact that he did not do so I find does not mean that this Court is not in a position to do so as it was a decision that the Review Officer could and ought to have made. Therefore, I find it is within the competence of this Court on appeal to consider that question. 11 Insofar as section 7(1)(a) is concerned, there is the evidence of the Occupational Therapist in which she identified certain aspects of the appellant's work tasks which, when carried out on a repetitive basis, could lead to the injury complained Secondly, there is the statement from the appellant's GP and thirdly, there is the evidence from the physiotherapist to whom she was referred. Finally there is the advice of Mr Lester that he considered the particular activities that the appellant did undertake in her employment "could be a significant contributory factor to the onset of this type of condition". On the basis of that evidence I find that the criteria of section 7(1)(a) are satisfied. Insofar as section 7(1)(b) is concerned, Mr Lester is of the opinion that there are no non-occupational activities of relevance. He notes particularly the massage course that the appellant undertook and which was a cause for speculation by the employer that it may be the source, and this was discounted by Mr Lester. Furthermore there is nothing in the appellant's pre-accident history or in her GP's records which would indicate that there were any non-employment factors which were a contributing factor. I am satisfied therefore that the evidence satisfies the criteria of section 7(1)(b). Insofar as section 7(1)(c) is concerned, the appellant herself gave evidence of other employees having had claims for similar injuries accepted by the respondent. The respondent did not seek to refute that contention. Section 7(1)(c) is intended to assess whether or not a particular work task or work environment, which has been identified as causing or contributing to the personal injury is a task or an environment which involves particular bodily movement or posture, or being subject to a particular environment which persons generally might not be expected to undertake or be subject to, and that there is a significantly greater risk of injury associated with that bodily movement, posture or environment as it is present in that work task or work place as opposed to bodily movement posture or the 12 environment generally which might be experienced by persons in ordinary day to day living outside that particular workplace. With that in mind I find that the Court is entitled to look at the particular work task that is performed and which has been found to be causally connected to the injury and see whether it is the type of task that the populous in general might be expected to do and so that the risk from injury from doing that particular task in the work place is no greater than the risk outside the workplace because that particular task posture or movement is equally performed in a myriad of circumstances. Having regard to the particular tasks of the appellant I find that it could not be said that those particular and precise tasks of pricking and dealing with trays of seeds and plants at a particular level and involving particular body movements are those which are generally carried on by the general public. If that is added to the evidence of the appellant that other persons in her industry have suffered similar injury, then I find that in the absence of medical opinion to the contrary, the evidence so given is sufficient to pass the test on the balance of probabilities. It is to be remembered that this Court has indicated on several occasions that whilst there is the onus of proof on the appellant in an appellate situation, nevertheless there is equally an onus on the respondent in the first instance to investigate the claim for cover and to properly inquire into the various criteria of section 7(1). If it does so and says yes, we have evidence that there is no significantly greater risk of a person suffering this particular injury performing that employment task than for persons who do not perform that task in that environment, then the onus does indeed shift to the appellant to establish on the balance of probabilities that that evidence does not carry the day. In the present case there was no such positive assertion by the respondent and therefore I find that the circumstances at appeal are entirely neutral and that there is no 13 evidence to counter the appellant's assertion and evidence that section 7(1)(c) has been satisfied. For the foregoing reasons therefore, I find that the respondent's decision to decline cover was wrong and the decision to do so is hereby revoked. As the appellant represented herself, costs would not normally be awarded but I reserve the question in the event that the appellant did incur actual expenses about and in connection with this appeal. DATED at WELLINGTON this 22day of April 1999 Seathe M J Beattie District Court Judge Burgess.doc(gm)