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Accident Compensation Cases

Teen v Accident Rehabilitation & Compensation Insurance Corp (DC, 19/11/99)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the appellant is entitled to cover under section 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. 
The appellant who was employed by the second respondent as a Credit Service Representative lodged a claim for cover in October 1996. The date of injury was recorded as 29 July 1996 and her General Practitioner, Dr K J O'Connor, diagnosed the problem as “probable OOS of R shoulder, arm, neck: back: L upper arm.” The injury was described as having been caused by “constant use of same muscles”. The claim was handled by CRM Group Limited, a certified third party claim administrator for the second respondent, an accredited employer. 
In her gradual process questionnaire, the appellant gave as her description of the problem “sore neck, shoulders, back and arms” which had persisted for some seven months. The appellant described her duties as “Credit Service Representative. To make outbound calls and to receive inbound calls from customers to make payment plans using the computer.” The appellant stated that the only non-work activity which may have contributed to her condition was that she did her ironing once per week. She said that she had not suffered from a similar condition in the past. The diagnosis provided by the appellant's General Practitioner, Dr R Fountain, in the General Practitioner Questionnaire provided on 17 October 1996 was that the appellant had OOS of the rhomboids, right shoulder and arm which the doctor attributed to her employed and a Computer Operator. 
The second respondent's Credit Manager in the employer questionnaire accepted that the injury was work related but in answer to the questionnaire whether he considered there were any contributing factors, he stated “not sure” however, he conceded that other employees of the second respondent had suffered from a similar condition. 
On 29 October 1996 CRM advised the appellant that her claim for cover was accepted as a result of which she received various entitlements. 
In a workplace assessment carried out on 1 November 1996 by Enable O.T. Ltd, an Occupational Therapist, identified various problems, being: 
“1.
Continuous taking of calls with no break for 2 hours, combined with the stressful nature of the calls is not allowing opportunity for muscle relaxation, change of position and natural breaks. 
2.
No support for wrists whilst using keyboard. Once upper arm pain started, this could have been exacerbated by lack of support of the lower arm whilst using the keyboard for a large percentage of the working day. 
3.
Some anticipatory holding of the left little finger in extension, which could lead to pain on the ulnar surface of the arm. 
4.
Very high stress levels related to work - commercially driven attitudes, lack of communication skills of the managers / supervisors, continued monitoring of performance in relation to work output, loss of sensitivity to the customer by the company, inaccessibility of the counsellor (sited in on office down the road rather than onsite). ”
The Occupational Therapist recommended more regular breaks from keyboard at work for the second respondent's employees; an adjustable wrist support with mouse extension; tape little fingers to give sensory feedback to discourage extension and changes within the management structure of the second respondent as both the appellant and other employees expressed concern because of the stress created with the workload and the expectations of management. 
In November 1996 the appellant was referred to Dr W E D Turner, a Specialist in Occupational Medicine. In a report dated 4 November 1996, Dr Turner diagnosed the appellant as having “developed a diffused myofascial pain syndrome affecting predominantly the postural and phasic muscles of her neck, shoulders and shoulder blades.” His opinion was: 
“I think the basis of this condition in terms of causation is the ergonomics [in a wider sense] of her work environment in respect of prolonged repetitive mouse and keyboard use with the adoption of constrained statically loaded postures inducing tension and lactic acid overload in the muscles. Clearly with persistent discomfort and an inability to undertake her usual tasks there has been an overlay of occupational stress and deteriorating staff relationships which has had an additional influence in terms of increased muscle tension and the development of chronic diffuse pain in the form of fibromyalgia. ”
The appellant then returned to work on limited hours and underwent a physical reactivation programme which had beneficial results. On 18 February 1997 Dr Turner reported that the appellant had been transferred to a different team within the second respondent's workforce which had given considerable relief and led to a marked reduction in her occupational stress and muscle tension. 
In December 1997 the appellant was referred to Dr J S Alchin, a Specialist Occupational Physician, who examined the appellant and reported to CRM on 10 February 1998. Dr Alchin had the benefit of Dr Turner's report prior to interviewing the appellant. In his report of 10 February 1998 Dr Alchin noted that ‘OOS’ is not an acceptable diagnosis, either medically, or for ACC. Mrs Teen had the gradual and spontaneous onset of neck and right shoulder pain 18 months ago, which has persisted ever since, with some subsequent but less severe and intermittent pain elsewhere through her upper body.” His diagnosis was “regional pain syndrome of her upper body, primarily her neck and right shoulder girdle. Other diagnoses include ganglion over the dorsum of the right wrist, previous left lateral epicondylitis with successful surgery in 1995, and treated depression.” 
Following a query from CRM, Dr Alchin provided a further report on 21 May 1998 in which he stated in answer to the question of whether there was an injury: 
“The diagnosis was Regional Pain Syndrome (RPS), predominantly of the right neck and shoulder girdle. As discussed in my previous report this is a pain syndrome due to altered pain processes and perception in the central nervous system, but it is not due to persisting tissue damage or injury. In the normal sense of the word ‘injury’ (eg fracture, bruise, cut, inflammation) there is therefore no injury present. Whether the altered function and physiology in the central nervous system in these states is classified as an injury is perhaps a legal question. Her painful arms, neck and shoulders is not an ‘injury’ in the usual or medical sense of the term. ”
Dr Alchin considered that there was no evidence “to suggest that there was any initial acute injury, or specific diagnosable lesion.” 
On 5 June 1998 CRM notified the appellant that it had reviewed her file in the light of the further medical reports as a result of which it considered that because the medical reports indicated that she suffered only pain and incapacity, there was no evidence that she had suffered personal injury by accident which qualified her to continue to receive entitlements under the Act. The letter noted that further entitlements would cease from 5 July 1998. The appellant applied for a review of that decision. 
Prior to the review hearing the appellant submitted a report from Dr R D Wigley, a Consultant Rheumatologist dated 30 July 1998. He noted that he had available to him the reports of Dr Turner, Dr Alchin, Enable and the report from Professor Gorman dated 9 March 1998 in which Professor Gorman had stated that the appellant had suffered “a diffuse chronic pain syndrome” and suggested that the appropriate diagnosis was fibromyalgia. Dr Wigley noted that Professor Gorman had not examined the appellant. Dr Wigley considered that the appellant suffered chronic regional pain syndrome. He stated: 
“Her symptoms arose while she was engaged in a type of employment well known to induce the type of symptoms that she has. She was working without breaks in an unsatisfactory position that was somewhat improved after the modifications recommended by Dr Turner. Computer rate monitoring practiced by Telecom is an undesirable feature in inducing the type of symptoms that she has, as also is the somewhat Draconian management attitude. This improved when she was transferred to another team, doing the same work. ”
Dr Wigley concluded that the unsatisfactory workstation under strong pressure to perform at a higher rate was an employment task which had the particular property or characteristic which caused or contributed to her injury. He considered that she had no out of work activities which contributed to the problem. In relation to section 7(1)(c), Dr Wigley concluded: 
“There is evidence that other members of staff in the same work have symptoms and secondly there is considerable evidence in the literature in support of the contention that that type of work under those circumstances, increases the risk of developing this type of symptom so this is answered in the positive. ”
A further report from Dr Alchin, by way of a brief of evidence for the review hearing, noted that as a result of an examination of the appellant on 14 January 1998, he “concluded as a result of that consultation, and reviewing the previous report by Dr W Turner (occupational physician) dated 4 November 1996, that Mrs Teen had Regional Pain Syndrome affecting her upper body, mainly the neck and right shoulder girdle. She also had a right wrist ganglion, and preceding as well as current treated depression.” Dr Alchin concluded that the appellant suffered regional pain syndrome or localised fibromyalgia syndrome. He stated that there was no evidence of tissue damage or injury in the reported cases which could be the cause of the pain. He states: 
“It is accepted by most experts that there is no direct causal link between the initially precipitating painful event and the subsequent clinical features of Regional Pain Syndrome. Instead, the important factor linking these two is the emotional response and distress of the individual. ”
And: 
“I doubt that Mrs Teen ever had an actual physical injury for the following reasons: 1) there is no history of a traumatic event; 2) there are no grounds for believing that her work could cause an injury (there is no evidence that keyboard work slowly causes subtle injury that is only detected and causes symptoms later). I have visited Telecom in Christchurch on several occasions to observe and advise on the ergonomics and work of Tolls and Director Assistance Operators, so I am familiar with Mrs Teen's type of work and workstation setup at Telecom, although I have not seen Mrs Teen at work at Telecom. This is not an important omission, as I have observed other Telecom workstations in Christchurch, I have read the reports of Enable OT and Telecom regarding her work, and when I saw her Mrs Teen described her work to me. I do not consider this work to be particularly arduous or demanding of upper limb function. The workstations are good; and, more importantly, there is not a constant need to operate the keyboard: some keystrokes alternate with pauses while customers are talked to, or asked questions of. This work must therefore be sharply distinguished from the continual keyboard work required of, for example, a dictaphone typist, or a court typist. It would be difficult, for example, to describe her work at Telecom, as ‘musculoskeletal occupational overuse’. It is not physically demanding work, and is certainly not the sort of work that one would expect to cause any sort of injury. It would not even be expected to cause muscular ache by itself. ”
Later in his report he stated: 
“There are policy reasons why Regional Pain Syndrome following minor trauma or pain, such as at work, should not be covered by compensation schemes. The Australian experience with the ‘RSI’ epidemic in the 1980's lead to them withdrawing Workers' Compensation cover for these cases, for three good reasons: firstly, as discussed above, there is no demonstrated causal relationship between workplace factors and the Regional Pain Syndrome which occasionally develops from acute pain, but instead this process is more affected by individual, psychological, emotional, behavioural and social (legislation) factors than by physical factors. Secondly, a major policy argument against covering these cases was the enormous and ultimately unsustainable financial cost to the workers' compensation scheme, and to society as a whole, if these cases are covered. Thirdly, and of the utmost importance, is that it has been recognised that to cover such cases by workers compensation benefits (eg Section 7 of the ARCI Act 1992) is in fact a potent cause of these cases, It was an act of social policy for public health reasons to decline cover to these cases in Australia at the end of the 1980's. To lower the threshold of entitlement for workers' compensation benefits in such cases results in an increased incidence of such cases, due to the following: encouraging a belief that a worker's acute but minor pain is actually sinister, as it is recognised by workers' compensation as ‘compensable injury’; it encourages or at least facilitates prolonged time off work, and this is also known to contribute to the development of Regional Pain Syndrome, whereas people recover quicker if they return to work sooner, or do not go off work at all. It therefore encourages the adoption of an invalid role and ‘illness behaviour’, by legitimising and facilitating the role of a chronic invalid. The decision to withdraw workers' compensation benefits from these cases was taken in an attempt (successful, as it turned out) to minimise the magnitude of the enormous social and medical problem that was the ‘RSI’ epidemic in Australia in the 1980's. ”
A further report from Dr Wigley, dated 20 July 1998, gave as his opinion: 
“She was earlier described by Dr Turner as having myofascial pain syndrome and indeed at that time, requirements for diagnosing that syndrome were satisfied but the trigger points are no longer present. This complaint can also be described as a regional pain syndrome, the word ‘chronic’ could also be added since it has persisted for so long. The evidence that it is work related, arising out of and in the course of her employment is not in question, so I would also add the adjective ‘occupational’. This of course makes the term ‘occupational overuse syndrome’ quite appropriate but this term is not currently acceptable by ACC as a diagnosis. In addition she has another overuse feature suggesting writer's cramp. ”
Having had available to him Dr Alchin's report, Dr Wigley noted: 
“Dr Alchin is of the opinion that there is no injury, and likewise, Dr Gorman. Obviously there is no injury in the sense that there is no recognisable bruising or abnormality of tissue disclosable by macroscopic examination. Professor Schug (Ref) has produced evidence that there may be damage to the sensory cell, leading to the general increase in sensitivity. He even states that the sensory cell may die. In my view this supports the contention that there is injury. I also consider that the complex biochemical abnormalities detailed by Prof Schug should be considered injury unless one excludes them by definition. The dictionary definition of injury is much wider than this. I enclose a summary of the evidence of the occurrence of injury in overuse pain syndromes (encl.). ”
Dr Turner then provided another report dated 7 December 1998 in which he stated: 
“I attended a consensus meeting in Wellington on 25/03/98 with 20 other specialists in order to develop a consensus regarding chronic pain syndrome and particularly fibromyalgia. From the meeting a majority statement was issued as follows: 
a).
There is very little evidence in the literature to support a link between trauma of work and fibromyalgia. IN the context of keyboard work there is no supportive data at all. 
b).
No demonstrable dose response relationship exists between computer related workloads and the likelihood of developing fibromyalgia or other chronic pain syndromes. 
c).
Fibromyalgia has not been shown to result from tissue damage and regular activity is beneficial in the management of the pain. 
d).
For a chronic pain syndrome to be accepted as compensable it must be preceded by an antecedent physical injury or occupational disease, it must arise as a plausible consequence of the biomechanical work process and the symptoms and signs attributed to the antecedent injury should resolve within an acceptable time of the accident based on tissue healing times. ”
Dr Turner related a very full history of his involvement with the appellant over the period from her first referral to him and his recommendations for workplace alterations. He considered that the appellant's diagnosis was chronic pain syndrome of the fibromyalgia type. He then went on to state: 
“Fibromyalgia is a complex systemic musculoskeletal disorder arising from multifactorial causation. There is no one particular cause for fibromyalgia indeed, it is thought to arise from many causes through neuro-endocrine dysfunction. Many patients appear to have a genetic susceptibility to the condition and I think the figure of 10%-15% of the population is conservative. Other factor that suggest a genetic susceptibility include previous history of migraine, past anxiety and depression, irritable bowel syndrome, painful periods, sicca symptoms, Raynauds phenomenon and chronic fatigue. Workers involved in jobs which are monotonous, repetitive, involving the adoption of statically loaded postures giving rise to chronic muscle and nerve tension are predisposed to the condition particularly where there is an associated lack of fitness, musculoskeletal deconditioning and psychological factors. Where workers are fit, their muscles are conditioned, they do not suffer from occupational stress and enjoy their jobs symptoms, they are unlikely to arise. Invariably workers who develop symptoms are self driven, over-conscientious, compulsive, having little or no perception of relaxation or pacing for muscle comfort. In terms of aetiology the association with work is controversial, the evidence from the literature suggesting anecdotal relationships only emphasising aggravating factors rather than direct causation. ”
His conclusion was “I would confirm that the onset of her symptoms in July 1996 arose through a non injury gradual process triggered by normal day to day work factors and associated stress characterised by muscle and nerve tension giving rise to pain through sensitisation of the nervous system.” He stated: 
“Where pain is chronic, unremitting, crescendoeing and spontaneous even though ergonomics are satisfactory and the work activities are non noxious stimuli as was the case with Mrs Teen; the current understanding is that the condition is most unlikely to be caused by work practices or the work environment. It must therefore be concluded retrospectively from an evidence based point of view that there are no identified work factors [specific properties of characteristics specific to Mrs Teen's employment task] which would be a biologically plausible cause of the chronic pain syndrome. ”
In a further report dated 18 December 1998, Professor Gorman, who chaired the Consensus Meeting of Specialists on 25 February 1998, noted that the finding of the majority of those present at the meeting was that in order to satisfy the criteria for chronic pain syndrome to be covered by the Act, the following criteria should be established: 
“(i)
The pain syndrome must be appropriately temporally related to the trauma and the consequent discrete injury; 
(ii)
The injury should be antecedent to the pain syndrome and the clinical findings that relate to this injury should satisfy appropriate diagnostic criteria. To substantiate this compliance and to enable ongoing audit, the clinical findings would need to be recorded along with the injury diagnosis; 
(iii)
The injury should either be the result of an accident or of a plausible consequence of a biomechanical work process (providing that there are no factors away from work that could also explain the injury); 
(iv)
The symptoms and signs associated with the antecedent injury should resolve within an acceptable time of the accident or of the ‘causative’ work process being withdrawn or appropriately modified. ”
The Review Officer concluded as a result of the medical evidence that the appellant had not suffered a physical injury but “in the sense she had suffered actual damage to the body so that the application for review was declined.” It is against that decision which the appellant now appeals. 
At the hearing, leave was granted to the second respondent to call Dr Alchin who confirmed his brief of evidence. In his evidence he confirmed that he considered that chronic pain syndrome could be “triggered by a whole host of factors”, one of which could be either/or major trauma but he indicated that stress and other similar problems could also be the trigger or bring about a chronic pain syndrome. In cross-examination by Mr Wilton, Dr Alchin conceded that in his report of 31 December 1998, he stated that “if court cases, such as the current one, decide that Mrs Teen's work was the cause of her chronic pain syndrome, then that will tend to result in more cases of chronic pain syndrome.” He said that he made that statement from a public health point of view. When asked by Mr Wilton to amplify that statement he stated: 
“The Royal Australasian College of Physicians in, in numerous statements of concern throughout the 1980's during their RSI epidemic called for a change in the public perception of chronic pain and they called for Courts not to award damages in these cases because of the evidence they had that for, for legal recognition that the workplace was causing these conditions resulted in a higher incidence of this major public health problem. That document referred to the 1980s RSI epidemic in Australia as, and I quote, the most, the major public health issue in Australia's history, unquote and when you compare that to things like smoking, alcohol, car accidents, aids epidemic, the flu epidemic in 1918, 19, to call the RSI epidemic in 1980s a major public, the major public health issue in Australia's history, is really saying quite something. ”
Dr Alchin then agreed that “it's a public, exactly and that's the point I was making, it's a public policy consideration, that's right. To limit the number of people developing chronic pain.” 
Mr Wilton then asked the question that “In the same report on page 5, paragraph there at the bottom, you say it has been clearly shown that compensation coverage makes it far more likely that an acute pain will develop into a chronic pain syndrome with work disability. I think you said before that you don't believe that chronic pain syndrome equates to malingering?” 
The answer was “No, it doesn't, that's right.” 
Then Mr Wilton asked “But you're saying here in effect that in this regard compensation is bad for people?” 
The answer was “Yes, yes, that's right, it's, it's quite clearly established, that's right.” 
The question: “and in your summary on page 6 of the same report, you say that if Mrs Teen succeeds with her claim there would be unfortunate and unjust consequences and you give a couple examples, first that the employer would be blamed and secondly it would help to promote more cases of chronic pain syndrome and may we take it that you are strongly opposed to such consequences?” 
The answer: “Yes, I was following the, the Australasian College of Physicians in those statements, yes, that's right.” 
Later in his evidence Dr Alchin agreed that in regard to chronic pain syndrome “it's a physiological condition, it, it's a change in, in the central nervous system function, yes.” 
The question: “Your medical view of injury, I think, is to equate it with tissue damage?” 
The answer: “That is normally what we mean by an injury, yeah, yeah, broken bone, cut, a bruise, a burn, that sort of thing, yes.” 
The question: “So would you accept that damage to nerve cells and nerve fibres amount to tissue damage?” 
The answer: “Yes, if there was damage to them, yes.” 
Mr Wilton submitted that the appellant had suffered a physical injury within the meaning of those words in the Act. He submitted that the question involves a legal issue rather than a medical one. 
Ms Morris submitted that on the basis of the medical evidence it could not be established that the appellant had suffered an injury for which she was entitled to cover. She submitted that while it was accepted that the appellant suffered from fibromyalgia regional pain syndrome, there was no evidence she had suffered physical injury or harm as a result of her employment in the particular work environment. She submitted that on the basis of the findings of the Consensus Meeting, chaired by Professor Gorman, there was no underlying pathology by which it could be established that persons suffering from fibromyalgia had suffered an injury but merely a dysfunctional nervous system. She submitted that the overwhelming medical evidence supported the contention that the appellant was not entitled to cover under the Act. 
Mr Corkill submitted that the first respondent supported the submissions of the second respondent. 
On the day following the hearing of this appeal I heard another appeal McCulloch (339/99) which raised the same issues. In that appeal I heard evidence from Dr Wigley. Both the Specialists who provided reports in this appeal were attendees at the Consensus Meeting, chaired by Professor Gorman, on 23 February 1998, at which Dr Wigley and another Specialist disagreed with the consensus view. Dr Wigley also provided a report on this appellant's condition but was not called to give viva voce evidence. As it is also material to the issues in this appeal, I quote from the evidence which I heard from Dr Wigley in the McCulloch appeal. 
When asked to make a comment on the findings of the Consensus Meeting, Dr Wigley said: 
“Well as you are aware I was one of the minority disagreeing with the alleged consensus and there were two others with me and I'm aware of other colleagues who share my views, this is not a solo voice. The main problem I think with that consensus meeting is that it is based on a meeting called in Vancouver in 1994 in which it was said that fibromilegia ([sic]) is a disorder of no known cause. ACC have used this on this statement to entitle and they felt to ignore any evidence of cause in individual cases and I strongly disagree [inaudible] to say that a thing is of no known cause in the face of a vast amount of evidence as the contract is a real problem indeed. The people who wrote the original report from Victoria and Vancouver, published subsequently, largely a denial of the conclusion reached, that publication unfortunately wasn't available at the Wellington meeting, they had been published at three months before and in this paper they explained the difficulties about arising at such a conclusion and how the conclusion had been [inaudible] misused for medical or legal purposes. And it has been of course quite a lot of information that has come through since but my concern however with this single cause hypothesis with the causation of disease, as a single cause hypothesis is served as well over the last century or so in bacterial diseases and genetic diseases and certain other things, but we are faced now with a large number of diseases in which the causation is multi-factorial and not dependant on one cause so to postulate in that this group of disorders that we are concerned with occupation we are discussing here today is due to a single cause as to postulate something which may not exist, indeed if one searches for these evidence from a single cause, one is left with a remarkably meagre evidence, there is some but there's a vast amount of evidence that the causation is multi-factorial that is due to a number of different factors converging and acting in concern but they don't need a repeat on, as we just heard, Mr Corkill agrees with us, so we come down out of the realms of theory to the individual case and we looked at the circumstances that apply to the particular person, we look at all the possible causes which those who take the other view called risk factors and not causes, and we look at the effect of these factors operating on the individual in [inaudible]. ”
Dr Wigley went on to state that the statement by Dr Alchin of the onset of fibromyalgia was possibly “triggered” by stress in the workplace presupposed an underlying condition which was waiting to be exposed. He said that he disagreed with that interpretation. Dr Wigley agreed that the problem was multifactorial and that stress could be one of the factors. He stated: 
“ … the current theory is that there is an abnormality of the central nerve cells which increases their sensitivity to all sorts of stimuli and therefore the responses and that what actually sets this up, the most generally held view I believe is that if people are working in constrained circumstances with rigid muscles, that these muscles in fact interfere with their own blood supply and you get an accumulation of chemicals which causes pain and if you do the normal thing and relax and allow the blood to flow, no problem. If your work dictates that you remain in such positions for long periods the nerve cells get overdosed if you like with [inaudible] of chemicals and undergo plastic changes which make them much more sensitive to latter stimuli later on in the course of the action and the thing then becomes a continuing problem. ”
Counsel put to Dr Wigley: “I'm putting two propositions to you, the first proposition that in the absence of trauma all one can say is that it is a disorder of the nervous system?” 
The answer: “One may say it's an injury of the nervous system.” 
Question: “You say it's an injury, others say it is not in the sense in which they use the word injury, that's the difference isn't it?” 
The answer: “Well we're concerned with the definition of injury in the Act.” 
The issue is whether or not the appellant has suffered personal injury for which she is entitled to cover under section 7 of the Act, Initially, the appellant was granted cover for the condition which was then diagnosed as OOS. That decision was made by CRM because it was satisfied by Dr Turner's original diagnosis that the cover was properly granted because the condition then diagnosed arose out of and in the course of her employment. It is interesting to note that the decision to cease entitlements was made on 5 June 1998 following the Consensus Meeting which took place on 25 February 1998. AS a result of that meeting Dr Turner appears to have changed his original opinion in line with the results of the Consensus Meeting. It is accepted by all the Specialists that there is no specific aetiology which can account for the appellant's problems but the view held by the majority who attended the Consensus Meeting is that fibromyalgia may be caused by trauma if a specific episode of trauma can be identified. Dr Wigley, on the other hand, disagrees with the findings of the other Specialists in this case in that he considers the appellant has suffered a physiological change to her central nervous system which has given rise to the pain syndrome from which she now suffers. 

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