Waitemata Health Limited v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 359/ 99 IN THE DISTRICT COURT DCA No. 132/99 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal against review decision 45/99/9100 BETWEEN WAITEMATA HEALTH LIMITED Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent AND LINDA WEBBER of Auckland (Claimant) Second respondent AND LESLIE JOHN TONKIN, Orthopaedic Surgeon, of Auckland Third respondent Heard at Auckland: 11 November 1999 Date of Judgment: 7 December 1999 Counsel: S. Meechan for appellant D. Toohey for first respondent Second respondent in person Dr M. Jamieson for third respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE I:JUDICIAL\Hubblej\Webber2.doc jab] 2. This appeal is against the review dated 26 February 1999 which confirmed ACC decision to continue compensation to Mrs Webber. Background: Prior to her employment with Waitemata Health Mrs Webber had been away from New Zealand for five years. In the three year period prior to such employment she worked two weeks each month in the UK as a keyboard operator temping, and the other two weeks she spent in Switzerland with her partner who was working in Geneva. Her activities in Switzerland were solely related to domestic duties. She was employed by Waitemata Health on a three month contract, but after four weeks of highly intensive and sustained typing, she experienced discomfort in her right shoulder and wrist and complained about it to a supervisor, but no claim was lodged. She left Waitemata Health stating she did not think the work suited her, and joined Mr Tonkin, who is an Orthopaedic Surgeon carrying out general duties which included some typing and secretarial work, but not on an intensive basis, and with multiple breaks. After a period of seventeen weeks with Mr Tonkin, she again developed the recurring pain and visited a Dr O'Neal, who diagnosed tendonitis. Gradual process questionnaires were subsequently completed by Dr O'Neal, Mrs Webber, Mr Tonkin and the appellant. In her questionnaire, Dr O'Neal diagnosed the appellant's problem as "extensor tendonitis and chronic pain syndrome on the right side of the body especially the arm, shoulder and neck." 3. Mr Tonkin reported:- "Linda Webber has demonstrated symptoms of stress at work. She has not mastered all of her job description yet. She is progressing slowly. Her condition seems to be improving." There was no evidence of any external cause of the pain, and Mrs Webber denied any external stress, although she had apparently recently gone through a separation with her partner. The situation giving rise to the "accident" recorded as being on 2 March, has the appearance of being somewhat unusual because "the accident" was not reported at the time and no claim was made. She worked for Waitemata Health for only four weeks, and in fact had been working at Mr Tonkins for some seventeen weeks before encountering the pain syndrome, and tendonitis was diagnosed by Dr O'Neal. The situation is further unusual because Dr Kenny, who examined Mrs Webber at the time of her original claim for compensation, supported the diagnosis of Dr O'Neal of tendonitis, but some weeks later he joined Waitemata Health as an advisor, and subsequently had second thoughts about the matter. His opinion expressed to me during this hearing and to the Review Officer was that he now doubted that Mrs Webber in fact had tendonitis at all, but rather had come to Waitemata Health with the regional pain syndrome or fibromyalgia. Mrs Webber's original claim to the Corporation was heard in March 1998, and the decision released on 27 March confirmed the diagnosis supported by Dr O'Neal and Dr Kenny of tendonitis. Compensation was accordingly awarded, with the Review 4. Officer expressly stating that a decision could not be made on whether or not there should be continuing compensation for the regional pain syndrome, which was also diagnosed and which was apparently causing the ongoing problem. However, that issue was referred back to ACC and they obtained reports from Dr Stewart, a rheumatologist, and Dr Monigatti, an Occupational Physician. The decision again favoured Mrs Webber on the basis that Dr Monigatti accepted that there was a "discreet antecedent condition (tendonitis) which existed and the pain syndrome evolved from that". That decision went on review at the instigation of the appellant, but the Review Officer in a decision dated 26 February 1999 confirmed the ACC decision on the basis that tendonitis had originally been diagnosed, and the regional pain syndrome was "parasitical upon the tendonitis". It is that decision which is now further appealed. A further issue is raised by these proceedings, namely, whether or not the Review Officer was right in attributing 100 percent of contribution to Waitemata Health rather than involving Mr Tonkin. The application to extend contribution to Mr Tonkin is resisted with Dr Jamieson representing Mr Tonkin. (Dr Jamieson is the lawyer and Mr Tonkin the medical specialist.) At the hearing evidence was called from Dr O'Neal, who made the original diagnosis, and Dr Kenny who as already observed, sought to change his opinion on the original diagnosis. 5 . In my judgment it is not open to the Court on this appeal to interfere with the original finding of tendonitis accepted by the review decision of 27 March 1998. No appeal was lodged from that decision. There is nothing sinister in Dr Kenny's change of opinion since he joined Waitemata Health. As he pointed out in his evidence, there has been considerable debate both medically and politically concerning claims for regional pain syndrome or fibromyalgia since 1997, when Dr Kenny supported the view that regional pain syndrome could be parasitical upon recognised medical conditions such as tendonitis. With this more recent knowledge, Dr Kenny is now of the school of thought which supports the view that regional pain syndrome or fibromyalgia is not "caused" by repetitive working tasks. This group maintains that work related repetitive strain injuries such as tendonitis, epicondelitis and carpal tunnel syndrome are distinct, short-lived and generally curable. However, a relatively small percentage of persons who experience these strain injuries subsequently develop regional pain syndrome or fibromyalgia. They point out that such people (perhaps ten to fifteen percent of the population) have a pre-disposition to fibromyalgia. They are almost invariably people who are self driven, over conscientious, compulsive, having little or no perception of relaxation, or pacing for muscle comfort. They are also people who have a previous history of migraine, past anxiety and depression, irritable bowel syndrome, painful periods, sicca symptoms, Raynauds Phenomenon and chronic fatigue. They accept that persons with fibromyalgia are not malingering. The pain is undoubtedly, real but this group says that the cause of it is "multi-factorial and almost certainly precipitated by psychological stress, anxiety or depression". That stress, anxiety or depression is generally precipitated by a 6. traumatic event such as death of a friend, separation or divorce, or unhappiness in the work place. His Honour Judge A.W. Middleton in the recent case of Barbara Teen v ACC and Telecom New Zealand Limited (325/99, 20 October 1999) discussed in some detail the supporters of the above view. In particular he refers to the consensus meeting of specialists on 25 February 1998, Chaired by Professor Gorman. At this meeting some 32 specialists attended. Before the learned Judge were supporters of the opposing views. On the one side, Professor Gorman and Dr Alchin espouse the view which is supported by Dr Kenny above. On the other hand, Dr Wigley and Dr Dryson are of the other view. The other view is that although it can be accepted that the cause of fibromyalgia is multi-factorial, the sheer number of cases in which people who developed repetitive strain injuries in the work place and went on to also develop fibromyalgia, lead inevitably to the conclusion that the original strain injury was a contributory cause. This is the view which has been accepted by the Review Authority, and has now been confirmed by Judge Middleton in the Teen case. As Judge Middleton points out in that case, the matter is even more complex because of political considerations, and as Dr Alchin points out in the Australian experience, the very granting of compensation created a kind of neurosis or hysteria which led to an explosion of claims, and in that country ultimately led to statutory intervention to rule out claims for fibromyalgia, and there was a resultant decline in the number of such claims. Judge Middleton expressed disquiet at the political 7 . ramifications, and it is clear from his decision that the suspicion is that the consensus meeting of 18 December 1998 may have (to put the most charitable interpretation on it) unwittingly assembled persons of the same mind with insufficient invitations going to the likes of Dr Wigley, who says he has many supporters within the profession for his views. Judge Middleton has accepted that there is some evidence at least of cell damage caused by repetitive strain injuries, and on the balance of probabilities this can lead to fibromyalgia. Perhaps in the end the decision will be political depending on whether claims for fibromyalgia as a work related injury reach epidemic proportions. An alternative of course, is sickness benefits and unemployment benefits which are much less in value. Judge Middleton has recently dealt with approximately eight such cases, and they consistently followed the Teen decision and in my judgment, it is appropriate in the interests of consistency that I adopt the same course. However, this also means that there are conflicting decisions within this jurisdiction, and anticipating that appeals may follow, I respectfully tender a contrary argument which might equally have been pursued. The contrary argument: The burden of proof. The onus rests on the claimants to establish that on the balance of probabilities the medical evidence establishes cover under the Act (West v Firestone Rubber Company [1992] 2 NZLR 23):- "On the plain language of the section cover will not exist unless the disease was always due to the nature of any employment. In other words causation always has to be proved." 8. I accept that the proof must be positive and compelling to the requisite standard being more probable than not. A claimant is therefor faced with a difficult hurdle in overcoming this burden of proof. This is so both in relation to the issue of whether fibromyalgia FMS in the particular cases is the result of "injury" at work, and also in relation to the secondary question of whether the more recognised repetitive work injuries such as epicondylitis, CTS or tenosynovitis can themselves lead to or contribute to FMS. The most widely accepted medical opinion is that they simply do not know the answer, but there appears to be general medical agreement that external factors such as stress are a major contributing factor. The point is also made by Dr Alchin that it is important to draw a distinction between the symptoms and diagnosis. Frequently symptoms get worse at work, but this does not necessarily imply that work is the cause. He said:- "For example, red skin when working outside in the sun would often be accepted as due to sunburn at work. But someone with asthma since childhood, who develops wheezing and a cough in a dusty work place does not necessarily have asthma caused by work. Rather they would probably have non-occupational asthma aggravated by breathing in dusty air at work. Similarly, musculo skeletal pain for whatever reason, such as rheumatoid arthritis, which is not caused by work, will obviously feel worse with activity at work as at home. This 'work related' pattern to the symptoms does not mean that the work has caused the disease. So a work ed pattern of symptoms does not, per se, prove that work has caused the condition." (Judge there appears to be a repeat here) A claimant is therefore faced with a difficult hurdle in overcoming this burden of proof. This is so both in relation to the issue of whether fibromyalgia (FMS) in the 9. particular cases is the result of "injury" at work, and also in relation to the secondary question of whether the more recognised repetitive work injuries such as epicondylitis, CTS or tenosynovitis can themselves lead to or contribute to FMS. The most widely accepted medical opinion is that they simply do not know the answer, but there appears to be general medical agreement that external factors such as stress are to be a major contributing factor. The point is also made by Dr Alchin that it is important to draw a distinction between the symptoms and diagnosis. Frequently symptoms get worse at work, but this does not necessarily imply that work is the cause. He said:- "For example, red skin when working outside in the sun would often be accepted as due to sunburn at work. But someone with asthma since childhood, who develops wheezing and a cough in a dusty work place does not necessarily have asthma caused by work. Rather they would probably have non-occupational asthma aggravated by breathing in dusty air at work. Similarly, musculo skeletal pain for whatever reason, such as rheumatoid arthritis, which is not caused by work, will obviously feel worse with activity at work as at home. This 'work related' pattern to the symptoms does not mean that the work has caused the disease. So a work related pattern of symptoms does not, per se, prove that work has caused the condition." The issue has been raised in the case of Kane v ARCIC, 53/98 where His Honour Judge Beattie accepted the observations of Dr J.R. Monigatti as follows:- "For the purposes of ACC cover, work must cause or contribute to injury, not just cause symptoms. The activation of latent points is not an injurious action it is a symptom provoking one. Work is simply aggravating a condition which is caused by something else. The fact that fibromyalgia usually crescendos and remains unresponsive to all therapeutic modalities further supports the view that the condition is a separate condition unrelated to the work process. However if one allows for the sake of argument that work is causative it does not follow that the condition is compensable. A person who injures his or her lower back at work and subsequently has localised and/or redicular referred pain to a limb with limited movement is reasonably seen to have a compensable occupational condition. These are biomechanically plausible effects of the injury. However the regional truncal or upper limb pain, fatigue and headache characteristic of fibromyalgia are not biomechanically plausible effects of such injury. This complex of symptoms may well be a psychological reaction to the injury, but current ACC legislation specifically excludes psychological problems from cover." 10. His Honour then said:- "If one accepts the diagnosis of Dr Monigatti then the symptoms which the appellant displayed are a consequence of psychological stress, which is in line with Mr Singh's initial diagnosis of tension headaches, and as has been stated by Dr Monigatti her problems have a psychological cause. Under the provisions of section 7(4) personal injury that is related to non-physical stress, such as the appellant's fibromyalgia is, it shall not be deemed to have been caused by gradual process, disease or infection arising out of and in the course of employment. For this additional reason then I would find that the essential elements required to establish a claim under section 7 are not present. In fact the elements presence specifically exclude a right to cover." Section 7(4): The section reads:- "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." This factor was in itself fatal to a successful claim in Kane's case, and indeed it appears from the evidence I have heard, that a substantial contributing factor to most cases of fibromyalgia is likely to be "related to non-physical stress". On this line of reasoning it undoubtedly creates a further substantial hurdle for claimants with FMS. The contrasting argument adopted by Judge Middleton in the Teen case is expressed by him as follows:- "As I have already found, the initiating factor in this appellant's condition was the physical stress caused by the poor ergonomics of her work environment as identified by Dr Turner. Thereafter, and because of the results of that physical stress, her non-physical stress has developed." The alternative argument says "Yes, but the FMS is even then" related to non-physical stress and is therefor ruled out by s.7(4). 11. The egg shell skull principle: In Tran v ARCIC, 220/98 His Honour Judge Beattie made the following statement:- "I find as a matter of law that the fact that flare ups of those (pre-existing) conditions may be triggered by work place factors cannot bring that person within the provisions of section 7(1)(a) ... If one has the disease when one comes to the work place where that disease is triggered or flares up, that does not mean that the property or characteristic caused or contributed to the establishment of the disease. It must be the disease itself that is created in the work place, not simply a more acute manifestation of it. I find that the egg shell skull principle has no application whether as a pre-existing or underlying disease or infection which is exacerbated by work place conditions." This contrasts with the comments made by His Honour Judge Baber in Munro v ARCIC, 108/99 to the following effect:- "If the appellant seems to have a pre-disposition or personal susceptibility in any way to fibromyalgia, that is something the respondent Corporation must accept. I would have thought that to be settled law." These findings are of course not necessarily inconsistent; if the claim is made because an alleged disease has developed, and it is established that that disease existed prior to the individual joining that particular work place, then clearly the disease has not been caused by work place factors. If on the other hand, a person merely has a predisposition to a particular condition, then the employer must accept them with that predisposition, and if work place factors are then the direct result in the disease or condition which develops, then the cause could be made out under S.7. The great difficulty with fibromyalgia is in establishing the "direct result". This is so because the complex of symptoms which evidence FMS are just as likely to be caused by a psychological or stress reaction to the injury itself as the property or characteristic in the work place. 12. If we take the particular example of a recent case on appeal involving a Miss Millsteed. She incurred an injury when turning the handle to the toilet and subsequently developed FMS. It takes a considerable leap in reasoning to conclude that this simple and innocuous daily function should result in chronic pain over a wide area of the body, general fatigue, headache and sleeplessness, which are the characteristics of FMS. Certainly, there were no observable biochemical or physiological causes which could be identified. There were undoubtedly physiological and biochemical changes observed in FMS sufferers, but the predominant medical view is that it is more probable than not the key factor in producing these changes is psychological or stress related and as such are not claimable because of s.7(4). Conclusion: Having expressed this contrary view, as I have already indicated, in my judgment the reasoning of Judge Middleton is equally plausible in relation to s.7(4) and in the findings on the causation of fibromyalgia. Accordingly, and in the interests of consistency, I uphold the findings of the Review Authority, and the appeal is dismissed. Contribution: When the question of contribution between employers is to be considered, each employer must be put to the test set forth in s.7(1)(a) and (c). The enquiry must be whether the particular employment task or environment in which it was performed, have a particular property or characteristic which contributed to the particular 13. personal injury complained of. In the present case the enquiry must be whether the muscular strain and ensuing pain complained of was caused by the particular activity of the claimant's employment. There is no argument on the evidence that insofar as the employment with Waitemata Health is concerned it did. However, did the same characteristics which caused that strain also arise in Mrs Webber's employment with Mr Tonkin. The identified cause was the repetitive and apparently unrelenting demands of consistent typing whilst at Waitemata Health, with few breaks or variable tasks. The onus is on the Corporation to establish on the balance of probabilities that the requirements of s.7(1)(a) and (c) in respect of each employer are satisfied. Despite the lack of specific complaint by Mrs Webber, I am satisfied on the evidence that the principal cause of her original diagnosis of tendonitis was the repetitive nature of the work at Waitemata Health. She specifically joined Mr Tonkin as a secretary/receptionist in his surgical practice because the work prescription consisted of a variety of tasks rather than keyboard work only. Mr Tonkin himself is an Orthopaedic Surgeon and clearly has a heightened awareness of problems which can arise from the work place environment. According to the evidence, he spent some time ensuring that the ergonomic requirements of Mrs Webber's work station was satisfactory. He provided an adjustable height chair adjusted appropriately for her height in relation to the desk, a 14. foot stool, a writ rest, a copy holder and a monitor on an adjustable arm. With Mr Tonkin, Mrs Webber is involved in a wide variety of tasks, and is only required to do short periods of typing. By contrast, her evidence concerning working for Waitemata Health was to the following effect:- "The keyboard work was so intense at Waitemata Health that the only breaks were for lunch, morning and afternoon tea. There was virtually no variation in tasks and I have never experienced this in any other work place. The only variation of tasks offered was incidental to the absence of the clerical person when there was a backlog of post to be folded into envelopes. This was also repetitive and occurred on only two occasions for a period just a few hours." Furthermore, the medical evidence accepted in this decision is that fibromyalgia is parasitic on the original injury, which the evidence establishes occurred whilst she was working for Waitemata Health. I am not therefore satisfied that it has been established that any particular property or characteristic in the work place with Mr Tonkin caused or contributed to the fibromyalgia experienced by Mrs Webber. The Review Officer's decision is also confirmed in relation to the issue of contribution. (G.V. Hubble) District Court Judge