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Accident Compensation Cases

Garden v Accident Rehabilitation and Compensation Insurance Corporation (DC, 29/11/99)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the respondent was correct to decline the appellant cover under s 7 of the Act in respect of the pain in her shoulders and neck. 
The appellant who was employed as an administrative manager lodged a claim for cover with the respondent which is dated 4 February 1997 in which she explained that the accident was caused by “Continual use of computer/data entry has caused pain & both shoulder & neck”. The diagnosis by Dr Fairgray, the appellant's general practitioner was “pain in both shoulders and neck ? OOS”. It appears from the file that the appellant had previously had a claim for cover accepted in 1996 in respect of epicondylitis, resulting from her computer tasks with the same employer. Dr Fairgray certified the appellant as being unfit for work because of the injury. 
In her questionnaire dated 20 February 1997, the appellant stated that the first experience of pain in her shoulders and neck was in September 1996 after having been involved for long periods on the computer and calculator. She said that she spent approximately 8 to 10 hours per day and 5 to 6 hours per week in that work. Dr Fairgray in his questionnaire considered the appellant suffered from (1) Cervico thoracic dysfunction and (2) Medial epicondylitis which was the claim which previously had been accepted ACC. Dr Fairgray attributed the problem to data entry and computer work over long periods. 
The appellant's employer, Chariot Motor Co Ltd, stated that the appellant averaged 43.9 hours of work per week as Administration Manager and Supervising Clerk, including data entry operating. The employer also noted very small amount of typing”. The employer indicated that the appellant operated her own accounting business from her home during evenings and weekends which the employer considered may have contributed to her condition. The respondent arranged for the appellant to be examined by Dr W E D Turner whose report of 25 March 1997 in which he gave as a diagnosis: 
“In my opinion a number of diagnoses are needed to account for Kay's overall condition. There is little doubt that she has a myofascial thoracic outlet syndrome and I would anticipate that in the absence of a palpable cervical rib or other evidence of mechanical obstructive pathology in the thoracic outlet she has the neurogenic or more common form. She manifests evidence of marked scalene irritability and spasm with a positive brachial plexus tension test indicating that the brachial plexus is being pressured by the anterior and middle scalenes in the interscalene triangle. In addition she has an untoward posture with down sloping forward drawn shoulders and an upper thoracic kyphosis. This is contributing to her symptoms by effecting closing the thoracici outlets and increasing tension in the scapular elevator muscles. There is evidence of muscle imbalance with tension across the pectorales and scapular elevators and stretching and weakness in the rhomboids, lower trapezii and serratus anterior accounting for protraction of her scapulae. Clearly she has a right medial epicondylitis with evidence of a myofascial pain syndrome affecting the wrist and finger flexores and forearm pronators with trigger points in the flexor digitorum and pronator teres muscle bellies. Finally she is overweight for her height, is unfit and smokes too many cigarettes. ”
He then went on to state: 
“I believe that there is a relationship of some of her diagnoses to her work process. There is little doubt that the myofascial thoracic outlet syndrome particularly the scalene, scapular elevator and shoulder girdle muscle tension together with the medial elbow symptoms manifesting a medial epicondylitis; demonstrates a relationship to the exigencies of her work process in their development. Typically the symptoms tended to crescendo during the working week and settle over the weekends. It must also however be accepted that there are some non occupational factors contributing to her condition namely her forward drawn down sloping shoulder protracted scapulae with thoracic kyphosis. Furthermore she is overweight for her height, is unfit and smokes too many cigarettes. ”
In a report dated 31 July 1997, Mr Bonkowski, a neurosurgeon, after reviewing an MRI scan said: 
“I felt that from a neurosurgical point of view she did have quite a significant focal stenosis of the C5/6 channel, but did not have very much in the way of nerve root symptoms, but rather local mechanical neck pain and headaches. ”
On 3 September 1997 the respondent notified the appellant that her claim for cover was declined because it considered that her problems were related to multi-segmental cervical spondylosis which had been present for approximately two to three years. The appellant applied for a review of that decision. 
The appellant then arranged for examination by Professor H Burry, a rheumotologist. In his report of 8 October 1997, Professor Burry noted that: 
“At this time (1996) she was vaguely aware of discomfort around the root of her neck on both sides and this discomfort became more noticeable during a period that she was off work while having an operative procedure for hiatus hernia. ”
He then noted: 
“It appears that conditions in her workplace where she had been employed for some 16 months, were unsatisfactory, with the organisation of her workstation being such that she persistently worked with her head rotated to the right. In addition there was considerable stress related to her relationship with the employer. ”
Professor Burry considered that a further cause of stress was the uncertainty of her condition, particularly as there was a family history of aneurysm. 
His comment was: 
“Currently, Ms Garden exhibits evidence of disordered function of the musculature of her neck, shoulder and right arm. She, without doubt, suffers from a medial epicondylitis (golfers elbow) in the right arm, but in addition there is tightness and tenderness in the shoulder girdle muscles which is consistent with the type of problem which develops with sustained postural strain in the work place. In my opinion the onset of her disorder as presented to me and the physical findings would satisfy the criteria of a gradual process occupational disorder as set out in Section 7 of the Act. The unsatisfactory work practices and work station may well have caused this problem to develop and a further aggravating factor would have been the tension between Ms Garden and her employer. ”
His final opinion was: 
“Ms Garden does not have either the symptoms or signs of either of these disorders. She has diffuse neck and shoulder pain which is related to the tightness and presence of trigger points in her shoulder and neck muscles and she also has evidence of a chronic lesion in her right medial epicondyle. ”
His comment was: 
“In my opinion, Ms Garden is currently suffering from a pain syndrome which was initiated in the work place, but has been exacerbated and kept active by various emotional stresses related to employment opportunities, compensation entitlements and future health prospects. ”
The respondent arranged for its medical advisor, Dr K Morris, to examine the file and he concluded that the appellant suffered a number of diagnosis, being: 
Bilateral medial epicondylitis 
Pain syndrome 
multisegmental cervical spondylosis 
myofascial pain syndrome 
postural syndrome 
Dr Morris's opinion was that only the cervical spondylosis and the medial epicondylitis represented a personal injury. 
After the review hearing had been commenced, the appellant arranged for an adjournment to enable her counsel to consider some of the information provided by the respondent. As a result of the supplementary submissions made by the appellant a response was provided by Dr K Morris which included his information that the appellant suffered from pain syndrome, myofascial pain syndrome and postural syndrome which did not constitute physical injury. In addition, a copy of the report from the Consensus Meeting on fibromyalgia which had been held in Wellington on 25 February 1998. The review officer concluded that the appellant had not suffered a physical injury nor did she suffer a personal injury for which she was entitled to cover under the Act. He concluded that the appellant suffered from non physical stress so that her claim for cover should be declined under s 7(4). The review officer also held that there was no specific evidence which implicated the appellant's particular work tasks with the development of her problems. It is against that decision which the appellant now appeals. 
Prior to the appeal being heard the appellant submitted a report by Dr B Glass, an occupational medicine specialist, which has been accepted in evidence. Dr Glass had reviewed all the medical evidence on the file. His diagnosis was: 
“It is unlikely that her symptoms are related to her spondylosis (see Prof Burry's opinion). Her work position with sustained posture explains a strain of her shoulder girdle muscles (Prof Burry). Her working posture of sitting at a desk which was too low in a forward slumped position would support Dr Turner's diagnosis of a thoracic outlet syndrome of the nuerogenic type with overlapping vascular effects and the symptoms of numbness, weakness and a sensation of swelling. 
In terms of causation of her thoracic outlet syndrome she did not have the droopy shoulder syndrome, or a cervical rib. Nor did she sleep with her arms hyperabducted but rather in the foetal position. Her sedentary work posture which allowed her shoulders to droop and slump forward was the more likely cause of her symptoms. 
Thus, in terms of an injury, she had a strain of the muscles of her shoulder girdle but in particular her trapezius together with pressure obstruction of the neurovascular bundle in the neck region. 
These effects were a consequence of her working position determined by the workstation arrangement together with her work intensity and her work related actions. 
The review officer raises the question of stress and, of course, where there is an intense work activity in a poorly designed work station there is an element of stress, particularly when management is not prepared to make the necessary changes. However, this is a common ingredient in most overuse conditions and I do not see it as a significant cause in this case. To elevate stress to the major factor is to misconstrue the actuality of the work place circumstances. 
What of pain and the view that pain is not an injury but a psycho-social phenomenon? 
Again, pain as a symptom is, in virtually all cases, due to some underlying condition. In this case it was due to both muscle damage and nerve compression. How one reacts to pain is quite a separate issue and, as we all know, some people ‘feel’ pain more than others. It is important, however, to separate pain as a symptom and due to a cause and an individual's response to that pain. ”
Dr Glass noted: 
“The bulk of ‘OOS’ cases which have occurred in New Zealand over the last 10 hears have been to clerical staff working at intense levels of activity in a variety of poorly designed work stations and not to persons not working at such tasks. ”
His conclusion was: 
“In conclusion, although the three specialists differ in their diagnoses, they agree on work as a causative factor — and that is the issue under consideration. My opinion also supports work as a causative factor. There was an element of stress in the work situation which exacerbated to some extent the response to the work circumstances but was not in itself causative. Finally, pain was a consequence of the injuries not a spontaneous occurrence. ”
The respondent then adduced a report from Dr Monigatti, occupational physician, who had been asked to explain the term “thoracic outlet syndrome”. In his report he stated: 
“Thoracic outlet syndrome often manifests itself in middle age when people become overweight or lose tone and strength in their shoulder girdle suspensory muscles. This is the ‘droopy shoulders syndrome’ referred to by Dr Turner. Age-related accentuation of the thoracic spinal curvature (kyphosis) may also provide symptoms. Smoking is a risk factor for thoracic outlet syndrome because of the constricting effect of nicotine on blood vessels. 
There has long been debate as to whether thoracic outlet syndrome can be a work injury. Early attention focussed on whether hypertrophy (overgrowth) of the scalene muscles, caused by certain types of occupational activity such as working overhead, could contribute. The scalene muscles, which flex the neck laterally and elevate the first rib during forced inspiration, are in close proximity to the neurovascular structures. Subsequently, the performance of repetitive weight-bearing motions many times per day in the course of factory work was implicated. However, to date there has been no conclusive evidence that work generates the problem, rather than simply disclosing or aggravating symptoms of the condition. 
ACC normally considers thoracic outlet syndrome not to be a work-related disorder, except perhaps in those performing sustained, heavy work overhead. I would think keyboarding an unlikely cause, even if associated with repetitive head-turning from copy-holder to screen, because it does not involves elevation and/or external rotation of the shoulder. 
You ask about the mechanism of strain. A muscle strain is not an anatomical diagnosis — it simply means the response within a tissue to an applied stress. Many movements result in tearing of the muscle fibres at microscopic level, and this is a normal process. A strain occurs when the tearing of the fibres has been such as to exceed the muscle's capacity to restore itself, at which stage symptoms develop to enforce resting of the tissues and allow healing. Symptoms normally associated with a strain include muscle soreness and stiffness, particularly on exertion. 
Chronic strain is usually caused by excessive, prolonged or unaccustomed use of the muscles. It is unlikely that poor work posture or the nature of the work station could provoke the degree of muscle tearing that would usually be associated with strain, particularly if the person had been working at that work station for some time. ”
Mr Shepherd submitted: 
1.
That the muscle strain in the neck and shoulder was the “personal injury” suffered by the appellant and that the pain was a consequence of that muscle strain. 
2.
That while the specialists are not able to agree on the precise diagnosis which he submits is not necessary (Felgitscher (135/98)), it is clear that each one of them has identified a physical injury. That Dr Turner diagnosed myofascial thoracic outlet syndrome of the neurogenic form which it is submitted could be regarded as personal injury. That Professor Burry considers the onset of pain as being the legacy of the appellant's shoulder and neck strain while Dr Glass considered the physical injury to be a strain of the muscles of the shoulder girdle, but in particular trapezius together with pressure obstruction of the neurovascular bundle in the neck region. 
3.
That while the appellant gave evidence to the review officer that she did not undertake similar data entry work in her non employment activities, that evidence was not challenged by the review officer and while the employer had referred to the appellant's accounting business undertaken at home this should not be regarded as a non employment task. 
Mr Corkill submitted: 
1.
That the medical evidence does not support a finding that the appellant has suffered a personal injury. 
2.
That the respondent acknowledges that the narrowing of the thoracic outlet is a physical phenomenon which may be considered to be a personal injury. 
3.
That the medical evidence does not establish that there is a particular property or characteristic in the employment tasks or environment which could have caused or contributed to the injury. 
The medical evidence establishes for me that the appellant has been involved in continuous work at a difficult workstation which has resulted in muscular restrictions and tensions in her shoulders and arms. This was accepted by Dr Turner as being related to her work process. He considered that “there is little doubt that the myofascial thoracic outlet syndrome particularly the scalene, scapular elevator and shoulder girdle muscle tension together with the medial elbow symptoms manifesting a medial epicondylitis; demonstrates a relationship to the exigencies of her work process in their development.” (Emphasis mine). 
It appears to me that Professor Burry takes the same view, but he also adds the rider of the stress relationship with her employer. However, he does find “evidence of disordered function of the musculature of her neck, shoulder and right arm”. Professor Burry considers that that problem is consistent with the nature of postural strain imposed by the workplace. Dr Glass reaches the same conclusion that the appellant has suffered an injury to her shoulder girdle muscles because of poor posture in the working position. As against those findings, Dr Monigatti has provided a report on the nature of thoracic outlet syndrome and whether it can be attributed to a work injury. He considers that it is unlikely that the poor work posture from the nature of the workstation could provoke the bulk of muscle tearing that would usually be associated with strain. 
In recent weeks I have issued a number of decisions relating to this very same issue. I had occasion in the decision in Teen (No. 335/99) to review the very considerable bulk of evidence which has arisen principally as a result of the adoption by the respondent of the findings of the Consensus Meeting on fibromyalgia referred to in this appeal by Dr Morris. In that case, I was confronted with similar evidence as is present in this appeal. 
I am satisfied that the appellant has suffered a personal injury, the exact diagnosis of which is indefinite. However, as I have explained in Teen and a number of other appeals, I consider that the poor ergonomics of the workstation produces restrictions in the musculature which prevents the muscles from performing their normal functions and which, in my view, constitutes the initial injury. That is confirmed by the evidence of Dr Turner, Professor Burry and Dr Glass. That injury having occurred, the result is an onset of pain which continues and is often exacerbated by such things as stress in the workplace or the mere concern that no relief can be obtained from the pain. However, I consider that the initial problem is the constriction of muscles created by a poor work position over a lengthy period. I consider that amounts to a physical injury. The pain which followed was a consequence of that physical injury. 
That then raises the issue of s 7(1). In my view, the overwhelming opinion of the specialists is that it is the nature of the workstation and the concentrated nature of the work itself which have caused or contributed to the appellant's injury. 
I accept Mr Shepherd's submission that there is no evidence of non work activity which could contribute to any material extent to the appellant's problems. The only specific evidence in relation to s 7(1)(c) comes from Dr Glass that it is well recognised that there have been many cases of this nature in the last 10 years involving clerical staff undertaking this type of activity in poorly designed workstations who develop this type of problem which does not affect persons not working at similar tasks. 
I consider therefore that on the balance of probabilities this appellant has suffered personal injury arising out of and in the course of her employment and the decision of the review officer will be revoked. The appellant will be entitled to cover under s 7 of the Act. 
The appeal is allowed and the respondent is to pay $1,000 towards the appellant's legal costs, together with the cost of Dr Glass's report, if it has not already met that. 

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