Banse v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 35 /2000 Appeal No. DCA 290/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN YOUSSIF BANSE Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on 16 February 2000 DATE OF DECISION: 9 March 2000 APPEARANCES Mr K P Sullivan, counsel for appellant Ms L M Rice, counsel for respondent RESERVED JUDGMENT OF JUDGE P F BARBER The Issue At issue is the respondent's decision of 13 October 1998 declining cover for the appellant's chronic back injury on the basis that the criteria of s.7(1) (personal injury by gradual process, disease, or infection arising out of and in the course of employment) of the Act have not been satisfied. 2 Background In 1995 the appellant lodged a claim with the respondent for a back strain said to have occurred while he was lifting a cow in the course of his employment as a Halal Slaughterman at Universal Beef Packers Lid at Te Kuiti. The respondent declined the appellant's claim for cover for personal injury caused by an accident, and that decision was upheld by Judge Middleton at appeal to this Court on 6 May 1998 (Decision 93/98). Judge Middleton noted at pg 9: "... on the basis of the available evidence an incident arose in early August 1995 when something happened in the slaughter room which put the appellant into a sitting position on the floor when he was approached by Ms Lear. However, what occurred at that time is somewhat blurred. The appellant has offered a number of explanations as to what occurred. The initial form indicates that he was lifting a cow when he hurt his back. Then in his evidence at the review hearing he said that he had slipped and fallen while his explanation to Ms Lear was that he had been kicked by an animal. It seems unusual that while these various descriptions of the accident had been given and he claimed in his own evidence at the review hearing that he was apparently knocked out by the incident and woke up when Ms Lear approached him, this is certainly not confirmed in any way by her evidence. Furthermore, in his initial consultations for treatment in respect of a cut finger no reference, and then very little reference, has been made to an alleged back injury. If it had been as serious as the appellant now complains I would consider that it would have been foremost in his mind when he was seeking medical help." Following the appellant's unsuccessful appeal for cover under s.8(2)(a) of the Act (personal injury caused by accident), he asked the respondent to consider his claim for cover on the basis that it was a "gradual process injury" that would qualify for cover under s.8(2)(b) of the Act. The appellant completed such a claimant questionnaire in June 1998 and indicated that he first noticed symptoms of a low back strain on 4 August 1995. On 9 June 1998 Dr Barrett completed a medical practitioner questionnaire in which she diagnosed the appellant as suffering from chronic low back pain in the lumbo sacral lower back. Dr Barrett noted that the appellant had had ongoing pain since finishing work as a slaughterman but that it was not as bad as when he was working. Dr Barrett noted that the repetitive bending, lifting and pulling actions in the appellant's employment had caused his condition to develop, and that it had been aggravated by a fall at work in August 1995. Dr Barrett noted that the appellant had no history of any back problem prior to the onset of symptoms in 1995. On 13 October 1998 the respondent declined the appellant's claim for a chronic back injury arising out of and in the course of his employment. A Review Officer upheld the respondent's decision. 3 Medical Evidence A variety of medical reports have been obtained in the course of investigating the appellant's eligibility for cover under ss.8(2)(a) or 8(2)(b) of the Act. Those reports are referred to in chronological order. On 6 November 1995 Dr M WE Miskelly, Te Kuiti Medical Centre, reported that the appellant had seen a Doctor at that Centre on 25 August 1995 after he cut his right index finger at work. Dr Miskelly also recorded that the appellant was seen on 28 August 1995 by a General Practitioner in Palmerston North where his cut was dressed, and a complaint of industrial contact dermatitis was noted. On 31 August 1995 the appellant saw Dr Buswell at the Te Kuiti Medical Centre and his finger was treated. Dr Miskelly records that "at that stage he complained generally about his job, his fingers being sore and some vague back pain." Dr Miskelly recorded that he saw the appellant again on 4 September 1995 and noted that the cut on his hand had settled as had his dermatitis. Dr Miskelly noted that the appellant was not happy with his job, but he found the appellant's back movement to be good and advised that he could return to work on light duties from 6 September 1995. Dr Miskelly noted that the appellant obtained a medical certificate from a Doctor in Palmerston North stating that he was unable to work, and Dr Miskelly had not seen him since. On 27 October 1995 Dr S Crerar, Port Nicholson Medical Centre, wrote to Mr A Griffin, Orthopaedic Surgeon, Wellington, for a report. She advised that the appellant's pain persisted from when she saw him on 7 September 1995. He had then explained that he has had a low back pain ever since he lifted a bull on his own while working as a slaughterer. Dr Crerar noted that the appellant had a full range of movement with no tenderness on examination. He had normal reflexes and sensation, and x-ray findings were within normal limits. On 28 November 1995 Dr S Crerar reported to the respondent that the appellant had a chronic low back strain. Dr Crerar noted that she had found assessment of the appellant very difficult as his English was limited, and back pain itself was "often very subjective" with little in the way of objective clinical or radiological findings On 15 November 1995 Mr A R Griffin, Orthopaedic Surgeon, reported to Dr Crerar that the appellant had: "... probably been having back pain symptoms for some time, although he dates his problems rather more specifically to August this year, associated with forward bending, lifting, and pulling actions that were part of his then work as a slaughterman. Lower lumbar back pain was of insidious onset, and had worsened such that he stopped work on 25-8-95 and has remained off work since then. ...' Mr Griffin diagnosed the appellant as suffering from chronic mechanical back strain. 4 On 10 January 1996 Dr J Keir Howard, Consultant and Specialist in Occupational Medicine, provided a report to the respondent. Dr Howard explained the task of a Halal Slaughterman as: "The basic task of the halal slaughterman is to kill animals for meat according to Islamic law which requires the animal to face the East and have its throat cut. Mr Banse told me that the beef cattle were stunned with an electric current or captive bolt and then they fell onto the slaughtering table. It was often necessary to manoeuvre them at this stage and this was a heavy job, particularly if he did not have an assistant as was apparently often the case at his last place of work. The throat was then cut and the spinal cord severed to ensure death.' Dr Howard noted that the appellant became aware of the ache in his back at about the time he cut his finger. Dr Howard formed the impression that the appellant had not been happy in his work at Universal Beef Packers. Dr Howard noted that the appellant had suffered from a gradually increasing level of back pain over the previous six to eight months, and that the onset was gradual and entirely in his lower back. He noted that the appellant seemed anxious and more concerned about his health than his symptoms warranted and that: "Examination of the back revealed minimal tenderness at the lumbo-sacral junction with some spasm of the paravertebral muscles in this area. There was a full range of pain free movement of the lumbar spine with no restriction whatever. Straight leg raising was to 90 in both legs. Lower limb reflexes were somewhat sluggish and difficult to elicit, but were present after reinforcement. The reason for this appeared to be his own tense state rather than anything neurological and sensation was normal in both legs." (my emphasis) Dr Howard concluded: "Mr Banse presents with a fairly standard picture of so called 'mechanical' back pain. the cause of such pain, which is suffered by at least 80% of the population, is not clear, although it does appear to be associated with heavy lifting and pulling and pushing movements. Clinically, there is no evidence of any significant pathology and I note that a previous x-ray showed nothing of significance to account for his problems, which is usually the case. I consider that his work, especially the moving of heavy animals into the correct position would have been a significant factor in causing his present symptoms. ... I suspect that his mild symptoms have become greatly exaggerated in his mind as he did not think he would ever get better. I also suspect that he may be using his back problems as a reason to escape from what has not been an enjoyable job. ..." (my emphasis) 5 On 8 March 1996 Dr Crerar noted 4 August 1995 as an estimate of the date on which the appellant fell at work while lifting a cow (in fact, a bull), and that as the appellant lodged his claim a month after the injury, he was unable to recall the. .. precise date on which he fell. On 18 July 1997 Mr Griffin provided a further report to the appellant's Solicitor. Mr Griffin noted that the appellant continued to suffer from low lumbar back pain but that on examination he "stood straight with a normal static spinal posture, walked normally, sat comfortably, and appeared normally agile on his feet." Mr Griffin noted the appellant had a full range of pain free flexion and extension, straight leg raising was unrestricted, there was no neurologic deficit in either leg, and no evidence of any other relevant musculoskeletal problems. Mr Griffin noted: "The history of onset of the symptomatic disorder given to me was that it was progressive over a period predating the described work incident in 1995, with that incident having led to more severe and persistent symptoms." Mr Griffin noted that the circumstances described to him were little different from those of many of his patients who had cover under the ACC scheme. On 20 January 1999 Dr J R Monigatti, Occupational Physician and Specialist Medical Advisor, provided a report regarding the appellant's gradual process claim. Or Monigatti noted that the appellant dated the onset of his symptoms to 4 August 1995 which is the date that he claimed to have suffered a discrete back injury. Dr Monigatti noted that the appellant's self-reported history was inconsistent with that related by the specialist who examined him and who reported a history of gradually increasing back pain with onset prior to August 1995. Dr Monigatti conceded that the potential for a work related back injury existed, and that musculoskeletal back disorders are associated with work related lifting and forceful movement. However, Or Monigatti concluded that, in the appellant's case, there was no causal link between his condition and his employment On 24 April 1999 Dr Howard provided a report to the appellant's Solicitor. Dr Howard noted that chronic mechanical back strain was not really a diagnosis, and he noted that pain may exist without anatomical derangement and that chronic pain may have no physical basis. Dr Howard noted: "I am prepared to accept that the heavy work in which Mr Banse was involved may well have induced some muscular and/or ligamentous strain at that time and this would be sufficient to induce back pain. My only comment is that it should have recovered - just as our aching limbs after a heavy day in the garden will recover relatively quickly once the physical stress is removed." On 4 November 1999 Dr Howard provided a further report to the appellant's Solicitor. Dr Howard noted that the Meat Industry has a high prevalence of back problems and that the work was generally heavy and physically demanding. Dr Howard noted that the probability of a causal association between back problems and heavy physical work had been recognised by the United States National Institute of Occupational 6 Health (NIOSH) on the basis of epidemiological studies. Dr Howard noted that Or Monigatti seemed to agree that the criteria in s.7(1) appeared to be met. Dr Howard noted that neither he nor Mr Griffin had been able to elicit a history of a specific injury, but noted that now that there was some independent support for a specific incident when the appellant was kicked by a cow, "... such an incident may well have acted as a trigger for the onset of what was to become ongoing back pain." Or Howard noted that the continuance of heavy work would have exacerbated any strain on muscles or ligaments and would have maintained the back pain. Dr Howard noted that neither he nor Mr Griffin had seen the appellant while he was at work, and Dr Howard noted that it was possible that if he had been seen at that stage in the "acute phase following the presumptive injury or in a situation in relation to ongoing heavy physical work, then evidence of strain muscles or ligaments may well have been found on examination." Dr Howard noted that in the immediate aftermath of such a strain the existence of back pain could reasonably be attributed to accidental injury, however, Dr Howard noted that: "... the continuance of back pain long after the cessation of heavy physical work and long after one would expect the effects of minor back trauma to have subsided, constitutes a very different problem." Dr Howard concluded: "In Mr Banse's case, then, we seem to have a possible mixture of an initial injury causing pain which was maintained by continued heavy physical work, but which has progressed to a situation of pain without injury following the cessation of work. I think it is reasonable to accept that there was localised and minor soft tissue damage to muscles and ligaments which induced initial pain. One would expect this to settle over a period of days or weeks rather than months and the existence of pain now, without any clinical evidence of back pathology, would suggest a situation without injury. ... the initial back pain may well be compensable, but the chronic back pain which has since developed would need to be considered differently and it becomes a separate issue of ongoing incapacity. ..." On 3 December 1999 Dr Howard provided the respondent with a report clarifying aspects of his previous reports. Dr Howard reaffirmed his view that the appellant was suffering from "simple back pain" and that that condition should settled reasonably quickly. Dr Howard noted: "That there may have been some muscle or ligamentous strain in the course of his work, which was the factor that initiated his ongoing back pain is a possibility that cannot be proved one way or the other, although it is a reasonable assumption." (my emphasis) 7 Dr Howard noted that there was a high prevalence of back pain in jobs involving heavy physical activity but noted that: "Whether this represents a real or apparent increase is a matter of dispute and it may be no more than a higher reporting rate, as back pain will more readily interfere with a person's ability to undertake heavy work than lighter work. ... Or Howard noted: "I have not accepted the existence of the event in August 1995 as fact and I will refer to it as a presumptive injury. All I have said in my correspondence is that on the basis of such an event having taken place, it would be reasonable to see it as having added to the overall picture by contributing a possible additional level of minor trauma to the back and are exacerbating the underlying problem and increasing the levels of pain. In point of fact, in my opinion, the evidence for this particular incidence remains equivocal at the least. Finally, all one can say in Mr Banse's case, I think, is that there remains the possibility of ligamentous and/or muscle strain at some stage, either as an incident or as an ongoing problem associated with his work, which may have initiated and possibly maintained Mr Banse's back pain while he was in employment. This essentially non-specific pain should rapidly subside once the stresses and strains of heavy physical labour have been removed. I think the fact that this has not happened would support the existence of other factors being involved and I consider that it is important, therefore, to distinguish the initial back pain, occurring at work, from the ongoing chronic pain, which appears to be continuing and, certainly at the time that both I and Mr Griffin saw him, would need to be classed as pain without pathology." (my emphasis) Law Sections 8(1) and 8(2) of the Act provides: " 8. Cover for personal injury occurring in New Zealand---(1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the 1st day of July 1992 in respect of which there is cover under this Act. 2) Cover under this Act shall extend to personal injury which-- (a) Is caused by an accident to the person concerned; or (b) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (c) Is medical misadventure as defined in section 5 of this Act; or (d) Is a consequence of treatment for personal injury [covered by this Act]." 8 Section 4 of the Act provides: " 4. Definition of "personal injury"--- (1) For the purposes of this Act, "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, and has the extended meaning assigned to it by section 8 (3) of this Act. 2) For the purposes of this Act, no cardio-vascular or cerebro-vascular episode shall be regarded as personal injury unless-- (a) It is a result of medical misadventure; or (b) It is a work injury by virtue of section 6 (1) of this Act." Section 7(1) of the Act provides: " 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-- (a) In respect of a period that ended on or after the 1st 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." In JBDB (unrep, High Court, Dunedin, 18 March 1999, M 121/98) Panckhurst J considered whether JBDB should be granted special leave to appeal to the High Court on whether he should have cover under s.8(2)(b) for cannabis dependency. Panckhurst J noted (pages 7 & 8) the following in respect of s.7(1): "The purpose of s7 is to prescribe when a particular type of personal injury, namely that caused by gradual process, disease or infection in the course of employment, is established. The essential focus of the section is upon causation. Hence it begins: "Personal injury shall be regarded as being caused by gradual process ... only if -". Then follow the three cumulative statutory preconditions which must be satisfied. First that the employment task had a particular causative property or characteristic. Next that such property or characteristic is not materially found in the person's non-employment activities. Third, that persons performing the particular employment task are known to be at significantly greater risk of suffering the injury in question. It follows that the onus upon a claimant is a particularly heavy one. No doubt the intention of Parliament was 9 to ensure that personal injury, said to be caused by employment- related gradual process, disease or infection, would only be compensated in clear cases. Where injury may be attributable to work place effects, but also to other non-work activities, causation would not be established. Likewise, unless there was a known significant risk to persons performing the employment task, the case will not be recognised." (my emphasis) In Eade (Decision No. 122/94, 12 April 1994), Mr Blackwood, as an Appeal Authority, considered the appellant had discharged the burden of proof on him to establish that he was entitled to cover for his hearing-loss claim. Mr Blackwood noted at pg 9: "I do not doubt the genuineness of Mr Eade's belief that he is entitled to some form of cover under the Act. The Appeal Authority has said, however, in a number of decisions that the proof that a claimant is entitled to cover under the Act cannot be founded on speculation. I have at times cited, in support of that proposition, the following extract from Luxton v Vines (1952) 85 CLR 352, 358: 'Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture ..." In Mccormick Transport Limited (Decision No. 173/97, 11 August 1997) at page 4 Judge Ongley referred to Luxton v Vines and an extract from the judgment of Dickson J in Briginshaw v Briginshaw (1938) CLR 60 336, 361 which stated: "The truth is that when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or its existence before it can be found. It cannot be found as a result of a mere technical comparison of probabilities, independently of any belief in its reality." Reasons for Decision I am most appreciative of the very detailed written and oral submissions from both counsel. I am, of course, very conscious of the existence of Judge Middleton's said decision (regarding this appellant) which involved many of the facts before me and much of the medical evidence up to 24 April 1998. I certainly understand and accept Judge Middleton's finding (on the evidence then before him) that the evidence did not support cover for the appellant in terms of s.8(2)(a) of the Act due to lack of proof of personal injury caused by an accident. Judge Middleton, understandably, did not accept on the evidence before him that the appellant's chronic pain was caused by an event in August 1995. Rather, he noted that there were conflicting accounts of what had occurred at that time and concluded that the event was not as serious as the appellant contended. Judge Middleton found at page 10 that the appellant "has been subjected to lumbar back strain in the course of his employment which has 10 brought about the chronic condition from which he now suffers." However, Judge Middleton was not asked to determine whether the appellant's problems arose out of and in the course of employment. The issue before me is the quite separate matter of whether the appellant is entitled to cover under s.8(2)(b) of the Act for his chronic back pain as caused by gradual process arising out of and in the course of employment. Ms Rice submitted that Judge Middleton's comments should be seen more as an indication that the appellant's problem occurred over a period of time rather than as a result of a specific event. It seems to me that Judge Middleton intended his comments to be quite obiter to the type of issue before me. As Ms Rice submits, in order to qualify for cover under s.8(2)(b) of the Act, the appellant must establish that he has a personal injury - but that did not seem to be in dispute, and that the injury arose out of and in the course of employment in terms of s.7 of the Act - but that is very much in dispute. Nevertheless, the respondent questions whether the appellant's chronic low back pain is a personal injury, but noting that the injury was so diagnosed by Dr Barrett. The medical evidence which has been put before me is very extensive, indeed, and continues from 25 August 1995 (about three weeks after the work incident) to 3 December 1999. I have given some idea of the theme of that evidence above but both counsel focused not only on that, but also on many, many other aspects of the medical evidence. I do not think it is particularly helpful to prolong an analysis of that. The respondent's theme about the medical evidence is that although there is evidence of the appellant having a fall in the course of his work on about 5 August 1995, he did not consult a doctor until 25 August 1995 - and then about a cut finger, and that there was no particular reference to back pain until about November 1995 but that, in any case, although there seemed to be minor back tenderness, the appellant has always had a full range of movement. I accept that there is a strong indication in some of the medical evidence that, perhaps, the appellant is exaggerating mild back symptoms in his mind and using them as an escape from an unpleasant job or that, in any case, any such muscular or ligamentous strain should have recovered after a fairly short time. Nevertheless, after many medical reports from various sources, when Dr Howard considered the situation on 4 November 1999, he seemed to accept that the accident of 5 August 1995, as described by the appellant, may have "acted as a trigger" for ongoing back pain. However, he did not consider that the ongoing pain could be attributed to "accidental injury" as the effects of that would have settled over a period of days or weeks rather than months, and that the appellant's chronic pain is a situation of pain without injury. Frankly, against the background of the heavy work undertaken at the Meatworks by the appellant, I do not find it easy to accept that he is suffering from pain without injury. Also, I find the nature of the work described in evidence as a very heavy type of work. 11 I am conscious that the respondent asked Dr Howard to clarify aspects of his previous advice so that on 3 December 1999, Dr Howard advised as follows: ". Whether there was some muscle or ligamentous strain in the course of the appellant's work, which initiated his back pain is a possibility that 'cannot be proved one way or the other, although it is a reasonable assumption', There was a high prevalence of rates of back pain in jobs involving heavy physical activity, but this may be no more than a higher reporting rate 'as back pain will more readily interfere with a person's ability to undertake heavy work than lighter work', He had not accepted that a specific accident occurred in August 1995, and referred to it as a presumptive injury, and if such event had taken place, 'it would be reasonable to see it as having added to the overall picture by contributing to a possible additional level of minor trauma to the back and thus exacerbating the underlying problem', but in any event Dr Howard noted that the evidence for this incident in August 1995 'remains equivocal at the least', There was a possibility of ligamentous and/or muscle strain at some stage which may have either initiated or maintained the appellant's pain while he was in employment, and that this non-specific pain should rapidly subside once the physical stressors are removed, and the fact that this has not happened 'would support the existence of other factors being involved'." As Ms Rice points out the definition of personal injury in s.4 of the Act requires that there be a physical injury. I accept that this is a medical issue and regard should be had to the medical evidence but, nevertheless, this Court is required to adhere to commonsense and reality. Also, overall the medical evidence is puzzling. It seems to be accepted that the injury the subject of the gradual process claim is chronic back pain. When the appellant was examined by Dr Miskelly on 4 September 1995, ten days after ceasing employment, Dr Miskelly did not find objective signs of a strain or sprain to muscles or ligaments and noted that the appellant's back movements were good. I am conscious that at least the early diagnoses may have been confused by the appellant being quite unfamiliar with English and being unable to communicate satisfactorily with the various doctors. Also he seemed to understand that the doctors knew of his back problem from others when they did not. However, I am conscious that there seems to be credible medical evidence that there was little objective sign of a sprain or strain in these early stages. Dr Howard considered that the appellant's subjective symptoms were exaggerated and suspected that the appellant was using his back problems to escape from a job which he did not enjoy. However, that seemed to be because, at material times, the appellant was doing the very heavy lifting work of two men and had a very sore back. I am also concerned that there seems to be quite some speculation on the part of the medical practitioners in developing these themes and that there was, clearly, a lack of understanding by the appellant of what they were saying and, probably, by them of what the appellant was saying. Also, from some type of work accident on about 12 5 August 1995 until 25 August 1995, the appellant continued at this very heavy work involving lifting and killing animals and shifting their carcasses. Obviously, that would not improve any back problems and would not ease pain. Dr Howard was equivocal about whether the appellant had, in fact, suffered any muscular or ligamentous strain, noting that his work "may well have" induced it (24 April 1995), that a specific incident "may well have acted as a trigger for the onset" of his pain and it was "possible" there was an initial injury (4 November 1999). It seems that Dr Howard is, in effect, only presuming that there was a personal (i.e. physical) injury, a point which he makes clear on 3 December 1999 when he states that he has not accepted that an injury occurred in August 1995 and referred to a "presumptive injury". Furthermore, in his report of 3 December Dr Howard has noted that the fact that the appellant's pain has not subsided supports the view that there are other factors involved i.e. apart from his work. The appellant cannot have cover under s.8(2)(b) of the Act unless he can establish, on the balance of probabilities, that he has in fact suffered a personal injury and that it has been caused by a gradual process arising out of and in the course of employment as defined in s.7. I appreciate that the presumption of an injury is insufficient to meet the standard of proof as is the possibility that an injury occurred. I am very conscious of the heavy onus upon the appellant as explained by Panckhurst J in JBDB cited above. The submission about personal injury on behalf of the respondent is that the medical evidence does not support a conclusion that, on the balance of probabilities, the appellant's chronic back pain is a personal injury. While I understand precisely the medical evidence and where the doctors are coming from, I do not think they really know what the appellant's problem is, although they now seem to admit that he has a chronic back problem. Nor do they know how it happened. It is further submitted for the respondent that if the appellant's chronic back pain is from a personal injury (and, of course, it is submitted for the respondent that it is not) that the evidence does not support the view that it has been caused by a gradual process arising out of and in the course of employment in terms of s.7 of the Act There was quite some reference to statistics and anecdotal evidence about back pain problems in the population and in the Meat Industry. However, it is self-evident that the employment task (described above) performed by the appellant, at material times, and the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process. So much for the criterion in s.7(1)(a). There is simply no evidence that the non- employment activities or environment of the appellant had any connection whatsoever with the injury. Accordingly, it cannot be said that the said property or characteristic is found to any material extent in his non-employment activities or environment in terms of s.7(1)(b). In terms of s.7(1)(c), despite the submissions of counsel for the respondent to the contrary, I think it is self-evident that the risk of suffering back injury is significantly greater for persons performing the slaughtering tasks of the appellant and the related duties of his employment in that environment than for persons who do not perform such a task in such an environment. 13 For all that, I agree with Ms Rice that although there may be a greater risk of suffering a particular injury in a particular employment, there must still be a causal link between the specific injury suffered by a claimant and the claimant's employment tasks or environment; and it is not enough to presume a causal link in view of the higher risk. I am, of course, conscious of the submission that Dr Howard has not accepted that the appellant's ongoing chronic back pain (for which he is now seeking cover) has been caused or contributed to by his employment. Dr Howard considers that the fact that the appellant has this chronic back pain long after ceasing employment (and even at the time he first saw the appellant i.e. approximately five months after the appellant ceased work at the Meatworks) indicates that his work was not the cause. However, I am conscious that, in terms of the evidence, it was the appellant's back pain which caused him to cease his employment so that he was in employment at the Meatworks at the time the problem was caused. Ms Rice accepted that Dr Monigatti commented that the appellant's work involved repeated, heavy, awkward lifting, and that s.7(1)(a) was therefore satisfied in his view. However, she seeks to put that comment of Dr Monigatti's in the context of his view that there was no physical injury and that he was merely acknowledging that the "potential" for a work related back injury existed. She stresses that although the "potential" was there, Dr Monigatti did not consider that was what had happened in the present case. She submitted that Dr Monigatti's comment was in the abstract, rather than in respect of the specific situation before him, and that it was not his opinion that the appellant's chronic back pain has been caused by a gradual process arising out of and in the course of his employment. Further medical evidence of Dr Howard by his letter of 4 November 1999 has been admitted by consent on the basis that it is not new evidence but a summary of his earlier reports and refers to other medical evidence already submitted in this matter. It seems to be accepted that the appellant stopped work on 25 August 1995 and has remained off work since then. There also seems to be no dispute that there was an incident in the slaughterroom of the employer in early August 1995 which put the appellant in a sitting position on the floor. It seems that this was the incident of 4 August 1995 when the appellant sustained an injury while lifting a cow. Certainly that is the appellant's evidence, which has not been contradicted, and the incident was described by Judge Middleton in his said Decision at page 6 as follows: "At the review hearing the appellant gave evidence as to how the accident occurred. While some of the transcription has demonstrated difficulties with the recording equipment, the basic core of the evidence is understandable and states: 'I was working on the slaughter floor. I was killing, I was cutting and killing the animals but first I (inaudible) the animals had to come from the (inaudible) box, (inaudible) box, had to go from a big place which is (inaudible) after flipping the cows and then lie them on the (inaudible) when I kill it then I the (inaudible) and that is when I slipped and fell but I fall down then my hands were in front kind of me 14 like this so I did my when I fell down then my feet were flat on the ground and around 10-15 minutes Fran Lear came over and (inaudible) she asked me are you alright, are you alright. I (inaudible) when I wake up and she (inaudible) when I woke up and she asked me again are you alright, (inaudible) hurting for myself, she told me to go and continue the job. I went and continued the job for the rest of the day.' At the review hearing the respondent was also able to produce the statutory declaration dated 27 November 1996 by Ms Lear, the Quality Assurance Manager for Universal Beef Packers who was referred by the appellant in his evidence. That declaration states: 'RE Banse Yousiff (sic) To whom it may concern Frances Lear Quality Assurance Manager of Universal LTD here by state that to the best of my recognition, it was sometime in August 1995. I did come upon & see Banse Yousiff sitting on the ground in the area of our plant sticking bay. When I approached him I asked him if he was okay, he then got to his feet & carried on working. I asked him what had happened he said he had been kicked by an animal that had knocked him off balance and he had fallen to the ground. He also said he was okay & would carry on working.'" At the later (28 April 1999) review hearing in the case before me, there was, of course, much detailed evidence from the appellant about the incident of early August 1995 at the meatworks and about the nature of his job. Unfortunately, yet again there are transcription difficulties from the recording equipment, but I now refer to and set out some of that evidence. It seems that the appellant came to work in New Zealand meatworks as a Halal slaughterman in February 1994 and that he was a very hard worker who experienced no back strain prior to being employed at the said Te Kuiti Meatworks on 16 May 1995. It seems that the animals were to be killed by two persons, namely the appellant and a co-worker called a "shackler" in a "sticking bay". However, the shackler left and the appellant carried on the job by himself for 21 days. 130 bulls were killed per day although, perhaps, there were other slaughtermen in other parts of the works. The nature and scope of the slaughtering activities are described in the transcript as very heavy work indeed, e.g. the appellant lifted animals, alive and dead. I understood that over the said 21 day period he was unable to operate on the basis of a half hour of such work and then a rest, because there was no-one to take his place at slaughtering while he rested. The appellant also makes it clear in his evidence that the killing table was too small and this allowed animals to fall off it four or five times a day which created more difficult lifting for him. At one stage in the transcript the appellant states (from page 22): "BANSE: After that I was to kill the animal on the floor then I will have to lift them back onto the table. The manager would tell me that I was doing a good job. They want me to work for them for long time. Whenever l'asked them to bring somebody, what I did one time, 15 the Islamic Meat people to bring somebody, so I found out (inaudible) bring somebody ... to bring somebody and they (inaudible) anybody. So I have worked there for 2.. for all the people I worked with 2 people all the time, for almost 2 years (inaudible). So during this (inaudible) that I worked for them (inaudible) anybody I was alone, I could not sleep by that time. And my back was really, really sore and I had to rub my deep heat onto my.. to rub my back to be able to come to work. I haven't (inaudible) from either .. I even asked for some medicine (inaudible) (inaudible) medicine from (inaudible) for my back. / have from the manager that the back.. I went to the Doctor to get my medical certificate. DOUGLASS: Read out what you've got there. BANSE: I informed the manager of the back pain and he send me to the plant doctor who said that he couldn't write a certificate for my back pain. So I should see the manager for (inaudible) he couldn't write me a medical certificate for my back and said I should go back to work the manager gave me an alternative job. Around that time I caught my finger while working (inaudible) to pressure me, while killing the bulls, 3 days off. I went to Palmerston North. At that time when I caught my finger I got 3 days off which is, it fell on a holiday so I went to see my girlfriend Palmerston North and then, after (inaudible) my finger (inaudible) my finger (inaudible) holidays (inaudible) Palmerston North, I went to the doctor and tell the doctor to treat the finger, the (inaudible) and I informed him of my back and he said he had.. I had to see my company doctor and he also talked (inaudible) (inaudible) after checking me out. So when I returned to work I talked to my manager and he said I needed.. and said that I need time off to treat my back and he said no, don't rip off ACC. I thought it was not in my best interest so I then left and after that (inaudible) ACC send me to Keir Howard.. . .. BANSE: He (inaudible) my back and he tell me 80% of New Zealanders have back problems so I should go back to work. I tried to go to.. BANSE: Yes, so if you (inaudible) said that, I (inaudible) to try what I have (inaudible). I went there, the job was hard, I couldn't do it so within that 5 days.. and (inaudible) he wouldn't provide me another job somewhere else. I said I can't do it, my back.. DOUGLASS: So this was as a slaughterman? BANSE: As a slaughterman. DOUGLASS: So you tried again after. BANSE: Keir Howard. He (inaudible) examine me and so (inaudible) anytime I lift.. and because (inaudible) another way of their work, I have to lift the (inaudible) up, into (inaudible) (inaudible).. 16 DOUGLASS: At that time you applied for ACC. You saw a doctor down in Wellington here.." It is also helpful to note a further portion of the transcript as follows (from page 30): "DOUGLASS: There was one particular incident where you fell over and.. BANSE: Yes, (inaudible).. DOUGLASS: Could you describe that? BANSE: Yes. At that time I was working alone and suddenly I kill this bull, (inaudible) out of. I struggled to kill this bull and I was unconscious because the work was too precious to me, there was pressure on me and I don't know whether .. and there was a lot of blood on the (inaudible) so I .. my leg just slip off and I fell on the floor. And when I fell on the floor I was there for some minutes and (inaudible) came to me.. DOUGLASS: (inaudible). Who was .. she was the quality assurance manager? BANSE: Yes. She came to me, are you okay. by that time I don't know whether should have told the (inaudible) but (inaudible) she asked me are you okay then she hold my head and I stand up and I (inaudible) the job so that was.. DOUGLASS: Did you want to stay in the job? BANSE: No, she asked me, are you okay? DOUGLASS: Yes. BANSE: But I didn't say anything and I got alternative job because I knew the job was hard. You know, but (inaudible) that she have to write it on a (inaudible) I don't know. I thought she.. because she was holding the paper all the time (inaudible). DOUGLASS: She was holding a paper? BANSE: .. what is happening on the .. on my area, she was (inaudible) write it down.' Despite the evidence, the respondent does not accept that there has been a personal injury i.e. a physical injury as defined under s.4 of the Act, although subsequently the respondent took issue on whether the criteria of s.7 had been met. I am conscious of the submission for the respondent that the appellant did not report any back problem at the time of the incident to his employer or to any doctor. Of course, that is not the evidence of the appellant. I accept that the incident of 17 5 August 1995 took place as I have described it above. When approached immediately as that incident was terminating by the Quality Assurance Manager by the employer, the appellant explained what had happened i.e. that he had been kicked by an animal which had knocked him off balance and he had fallen to the ground in the sticking bay plant. It seems to me that there can be no doubt that the appellant was reporting the incident to a senior officer of the employer. The appellant's evidence is also that he informed that Manager of his back pain and was sent to the plant doctor who declined to write a medical certificate for back pain. It seems to me that, on the balance of probability, the appellant reported a back injury of some type. One can understand that the appellant did not seem to make much of his back problem at the outset because the medical evidence is that there was a gradual 'insidious" onset of the back strain. This could have been because he kept working at the heavy job in the Meatworks from 5 August 1995 to 25 August 1995 and, apparently, on the basis that he was also covering for another Slaughterman at that time (who apparently left in about mid July 1995). It is hardly surprising that his back worsened. His problem was that the employer's doctor did not believe him at the time. However, he consulted his own General Practitioner when he moved to Wellington in September 1995 and this was only four or five weeks after the incident. The evidence is that at the time of the 5th of August 1995 incident/accident, the appellant was working by himself as a Slaughterman, rather than with a co-working Slaughterman as would have been the normal course, so that he was not sharing the heavy work of killing the animals as was the normal course. - The appellant gave evidence that in 1996 he endeavoured to recommence slaughter work at another Freezing Works but experienced the same difficulties with his back which prevented him from working. No issue has been made before me as to the credibility of the appellant although one wonders whether that aspect influenced some of the assessments of medical practitioners in this case. One can only agree with Dr Howard when he states in his report of 4 November 1999 that the key issue is "simply whether there has been a physical injury in Mr Banse's case." He then confirms that the incident in the slaughter bay "may well have acted as a trigger for the onset of what was to become ongoing back pain" and some of his other statements are set out above. It is puzzling to me in the light of those 4 November 1999 statements from Dr Howard that there can be any doubt about whether there has been a physical injury to the appellant at material times in August 1995. Dr Howard is stating that it is reasonable to accept that there was soft tissue damage to muscles and ligaments. Surely, that is a physical injury even though it may have been minor. It seems to me that it is also reasonable, as Dr Howard suggests, that that damage was worsened by continued heavy physical work. I think it highly probable. I think it is quite unreasonable to see this situation as one of pain without injury. It seems to me, on the balance of probability, that there has been back pain to the appellant flowing from a physical injury, but there is a quite separate issue of whether there has subsequently been a mental exaggeration of the pain and the injury. This means 18 that the question of ongoing incapacity needs to be carefully looked at as a separate issue. However, I am only concerned at present with whether the appellant is entitled to cover under the Act. I certainly agree with the submission of counsel for the appellant that the s.4 definition of personal injury should not be considered in isolation from the criteria for gradual process claims in s.7 of the Act. In my view, the diagnosis of chronic mechanical back strain in this case falls within the definition of personal injury in s.4 and is attributable to the criteria of s.7 of the Act. From the overall evidence adduced to me, there can be no doubt that the incident of 5 August 1995, which I have described did occur, so that the appellant sustained a fall and created a back problem which worsened with continued heavy physical work for that employer. I simply do not see the uncertainties which have preoccupied the respondent in this case. There is the language problem factor which I have described above. Also, that the Quality Assurance Manager of the employer made notes about the appellant's back injury but failed to put those on the record as she had undertaken to the appellant to do. There is no evidence that something else has caused this back injury and, indeed, the point was not seriously pursued for the respondent. On an overall view of the situation, it could only have been caused by the incident of 5 August 1995 and the appellant's continued working at heavy work for the same employer after that. It is not reasonable to conclude that the appellant had a pre-existing back problem because it had not appeared in his work as a Slaughterman prior to this accident and there is no evidence of any degenerative back condition. The views of medical specialists are, of course, evidence, but they should not necessarily be considered by the Court as definitive. It is this Court which needs to decide whether there is cover according to the law but, of course, on the basis of the available evidence most of which is medical and tendered by experienced medical witnesses of complete integrity. As I understand these back pain problems, there is not necessarily any evident physical injury. It seems to me to be obvious that the appellant's repetitive, heavy, and awkward lifting of animals and animal carcasses, at the Meatworks, was at the very least a likely source and cause of his chronic back condition. The question is whether, on the balance of probabilities, that should be found to be the cause in this particular case and, if so, whether the criteria of s.7 have been met. Ms Rice submits that the medical evidence does not support a causal link between the appellant's employment and his chronic back pain and at most raises the possibility that a reasonably acute back injury was triggered by the appellant's work. I take the view that when one stands back and looks objectively at all the evidence, on the balance of probabilities, one must find that the evidence (including the medical evidence) does support a causal link between the appellant's employment and his chronic back pain and condition. Frankly, I find it curious for the respondent to disagree but suggest that there is the possibility that the back condition was "triggered by the appellant's work". There is no evidence whatsoever that the appellant had a back problem prior to his being employed at the Te Kuiti Meatworks. Indeed, if he had, it is most unlikely he could have undertaken such heavy, repetitive 19 and awkward work for a year or more before his back "gave out". It seems to me to be contradictory to submit that it is possible that "the reasonably acute" back injury was "triggered" by the appellant's work but that there is no causal link, on the medical evidence, between the appellant's employment and his chronic back pain. One cannot ask medical evidence to be conclusive but only to draw conclusions based on the skill and experience of the medical practitioner. I certainly agree with Ms Rice that one must not draw conclusions in this situation as a mere matter of conjecture or speculation and that the respondent is entitled to a degree of certainty. That is an approach, quite properly, endorsed by the High Court in JBDB by Justice Panckhurst that it was "no doubt" Parliament's intention that personal injury due to gradual process "... would only be compensated in clear cases ..." and that "... the onus upon a claimant is a particularly heavy one." Ms Rice submits that this is not a clear case in that the appellant has not discharged the onus of proof upon him. It seems to me that this is as clear a case as one could expect with regard to a back injury to a Meat Industry worker, although, perhaps, one would have expected to see more visible signs of physical injury and more consistency in initial versions of the August 1995 accident. However, I find that a back injury of August 1995 was sustained by the appellant while lifting a bull and that there was then a subsequent ongoing mechanical low back strain. My finding in this case is as to cover and. the matter of incapacity or degree of incapacity is quite a separate matter. For the above reasons, I allow the appeal and the appellant is to be accorded cover from the outset by the respondent. I fix costs at $1, 100 and the respondent is to also meet the appellant's reasonable disbursements and, in particular, his medical fees. Judge P F Barber District Court Judge WELLINGTON dca290-99.doc (nr)