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Accident Compensation Cases

Walker v Accident Rehabilitation and Compensation Insurance Corporation (DC, 10/05/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the respondent's decision of 20 October 1997 ceasing cover entitlements under section 73(1) of the Act as upheld by the Review Officer was correct. 
The background to the appeal is that the appellant was employed by the Inland Revenue Department from 1984 when he left secondary school at the age of 18. He undertook a variety of clerical and administrative tasks but during the intervening years the Department's operations became computerised and by 1989 he was using a computer quite frequently. In 1991 a new computer system was introduced with the result that from then on the appellant spent the bulk of his time at the computer. At the same time the Department adopted a case management system and performance related pay which resulted in a sharp increase in the appellant's workload. A further increase occurred in February 1993 when he was then employed in the Department's Debt Collection section at its Hamilton office. The office relocated and the appellant moved from an ergonomic workstation to a plain desk with a chair which could not be adjusted to move close enough to the desk to enable him to work comfortably. 
In June 1994 the appellant consulted his General Practitioner because at that time he was experiencing discomfort in his left wrist with sharp pain in his chest and stiffness in neck and shoulders with a heavy upper arm, numb fingers and aching in his arm. He said that the problems had caused him concern for some six to nine months previously. The appellant's General Practitioner diagnosed occupational overuse syndrome in the wrist, shoulder and neck. 
The respondent referred the file to its District Medical Officer who certified on 5 August 1994 that the appellant suffered a gradual process injury which was “caused by nature of claimant's work”. On 9 August 1994 the respondent notified the appellant that his claim for a work injury had been accepted. As the problems continued to accentuate the appellant was permitted to work reduced hours from October 1994 but by November was unable to continue to work although he remained as an employee of the Department. He then transferred from Hamilton to Wellington. 
The respondent met the cost of the various treatments including physiotherapy, osteopathy and counselling for pain management. The respondent referred the appellant to Dr R D Wigley, a Consultant Rheumatologist for assessment and in his report of 15 July 1995 he diagnosed “a very typical history of Occupational Overuse Syndrome, extending to the point where it could be classed as fibromyalgia. This is not actually a change in diagnosis but rather an indication of the severity and extent of the complaint.” Dr Wigley considered that the appellant would need to take a year or more off work. 
As the appellant's condition did not improve, various therapeutic treatments were undertaken. In May 1997 the appellant was referred to the Queen Elizabeth Hospital in Rotorua and a report from Dr P B B Jones, a Consultant Rheumatologist. At that hospital Dr Jones stated: 
“It is clear that the Corporation uses a different conceptual framework in respect of chronic pain syndromes than the one we apply in our rehabilitation programme and it is difficult therefore for me to answer your queries. ”
Dr Jones took the view that it was difficult to distinguish chronic pain syndrome from occupational overuse syndrome or fibromyalgia. When the respondent received that report the appellant's Case Manager referred him to Dr N A Smidt, the respondent's Medical Officer at Palmerston North. In a file memorandum dated 27 August 1997 to the Case Manager, Dr Smidt stated: 
“The Corporation is now understood by me to send all fibromyalgia claims for consideration of Dr John Monigatti. The basic approach is that the Corporation does not consider fibromyalgia a Corporation responsibility. ”
As a result the file was referred to Dr J R Monigatti who is an Occupational Physician who provided a report on 19 September 1997. In that report Dr Monigatti detailed his understanding of the respondent's then current policy in respect of fibromyalgia. He noted the findings of a meeting of experts in 1994 in British Columbia that the symptoms of fibromyalgia can arise “irrespective of work actions or properties in predisposed individuals.” He stated “there is general agreement that the prognosis of established fibromyalgia is poor.” In his opinion the information provided in respect of this appellant's condition did not satisfy the requirements of a work injury under section 7 of the Act. 
When that report was received the respondent notified the appellant on 20 October 1997 that the information it then held indicated that the appellant suffered the condition of fibromyalgia which is not defined as an injury for which cover is acceptable under the Act. The letter then stated: 
“Because of this, I must inform you that under Section 73 (1) and 7 (1) of the Accident Rehabilitation and Compensation Insurance Act 1992 I am required to disentitle you from any further entitlements payable by ACC. ”
The appellant then applied for a review of that decision. 
The appellant arranged for a further report from Dr Wigley to whom he provided the reports from Dr Monigatti, Dr Jones and the discharge report from the Queen Elizabeth Hospital, together with various reports from Occupational Therapists. 
Dr Wigley in a report dated 31 March 1998 noted that the appellant's workstation was unsatisfactory and that this, coupled with the long hours, created the problems in his neck, arms and wrists. His opinion was: 
“As indicated in my previous report, his symptoms are clearly the result of his work ‘arising out of In the course of his employment’. No alternative explanations for this symptoms were discovered so that the term diffuse symptom, occupational overuse syndrome fits. This has extended to the point where he has generalised pain and enough tender points to classify this as fibromyalgia but as I emphasised before, this does not mean that he has a different disease but rather an extension of the original complaint. I disagree with Dr Monigatti's opposite view in general and in particular with respect to Mr Walker's case. ”
Later in the report he stated: 
“I believe that there is injury and that that can be put down to the conditions of employment and a very unsatisfactory work station, as illustrated. The evidence that it is in fact an injury is supported by a number of recent research studies.. ”
In a comment of Dr Monigatti's report, Dr Wigley stated: 
“In the letter from Dr Monigatti on 19 December 1997 to Angela Clay, Case Manager, there are a number of points that he makes which are a reflection of his own beliefs rather than an interpretation of the available evidence with respect to Mr Walker. 
Page 2, paragraph 1 Dr Monigatti's view that fibromyalgia is silent until triggered by one or a combination of factors is his personal view. I do not find convincing evidence in the literature to support this view. ”
Later in the report, still dealing with Dr Monigatti's opinion, Dr Wigley states: 
“Concerning the ‘presumption of work relatedness’, there may be something in what he says but if in the particular case there is good evidence that it is work related how can one conclude that this is not so? ”
In the course of the review proceedings, leave was given to the respondent to obtain a report from Dr Monigatti in answer to Dr Wigley's report. Dr Monigatti referred to the consensus meeting on fibromyalgia and disagreed with some of the statements made by Dr Wigley. In his opinion, Dr Monigatti stated “Mr Walker's chronic pain syndrome is likely to have arisen de novo from personal risk factors rather than an external ‘cause’ as most do.” 
In her decision the Review Officer concluded that the appellant's: 
“ … original symptoms cannot be related to objective evidence of personal injury then it is my view that the argument put forward by Mr Walker's solicitors cannot be sustained, i.e. that the fibromyalgia is a further symptom of an identified work related injury. ”
The Review Officer rejected the appellant's argument that cover having been granted and not revoked by a decision under section 67A that it was open to the respondent to cancel cover by adopting the provisions of section 7. It is against that decision which the appellant now appeals. 
Ms Hubble submitted: 
1.
That the correct approach to be adopted was that adopted by His Honour Judge Beattie in Major 989/99), the facts which are almost identical with the facts in this case. 
2.
That on the medical evidence and particularly that of Dr Wigley, the onset of fibromyalgia did not constitute a change in diagnosis “but rather an indication of the severity and extent of the complaint.” 
3.
That on the basis of Major the appellant in this case had suffered an injury diagnosed as muscular strain and occupational overuse syndrome which was accepted for cover and the problems arising out of that injury continued up to the time the respondent issued its primary decision. 
4.
That section 72(1) enables the respondent, if it is satisfied on the information it has in its possession that the appellant was not entitled to continue to receive any treatment or compensation, to suspend or cancel that payment for treatment or compensation. That section requires the respondent to consider the application of the individual criteria for entitlements to the various types of assistance flowing from cover once granted. That in contrast, section 7(1) establishes part of the criteria for an initial determination as to whether or not cover exists. That section is not designed to operate as a disentitling provision once cover is granted. 
Mr Corkill submitted: 
1.
That on the basis of the opinions of Dr Monigatti and Dr Jones there was no evidence that the appellant had suffered an injury. 
2.
That on the basis of the decision in Shaw (17/00), it is open to the respondent to consider the medical evidence as to whether the appellant has a continuing entitlement when the medical opinion demonstrates that there is no longer a personal injury by accident. 
3.
That the question is whether the disability under consideration at the time of the respondent's decision in 1997 is causally related to an event for which an entitlement to cover was granted in August 1994. 
4.
That while it would have been open to the respondent to make a decision under section 67A and revoke its original decision it chose to use the provisions of section 73(1) which was a more “benevolent” section in that a decision under section 67A gives rise to an overpayment situation while a decision under section 73(1) merely suspends further payments. 
5.
That the medical evidence establishes a disagreement between the experts as to the exact nature and cause of fibromyalgia. 
I agree with the approach adopted by His Honour Judge Beattie in Major in which the factual situation in that case was almost identical with the facts in this appeal. The appellant lodged his claim in early July 1994 and by August 1994 the repsondent accepted the diagnosis made by the appellant's General Practitioner as confirmed by its own Medical Officer that the appellant suffered a gradual process injury arising out of his employment which produced pain in his neck, shoulders and wrists. 
It appears that until the mystique surrounding the aetiology of fibromyalgia had entered into the respondent's procedures no doubt was raised as to the appellant's continued eligibility for entitlements in respect of the cover he had been granted. The respondent took the course of notifying the appellant on 20 October 1997 that by reason of the fact that fibromyalgia did not fall within the definition of an injury under the Act his further entitlements would cease and his cover withdrawn. 
I have considered the medical evidence and I am satisfied that the diagnosis originally made and subsequently confirmed by Dr Wigley was correct. I consider that Dr Wigley was correct in stating in his report of 15 July 1995 that while the appellant had a typical history of occupational overuse syndrome which extended to the point where it could be classed as fibromyalgia that “is not actually a change in diagnosis but rather an indication of the severity and extent of the complaint.” In his later report of 31 March 1998 Dr Wigley confirmed his original diagnosis that the appellant had suffered a physical injury because of the unsatisfactory nature of the workstation and that his study of various research material supports the fact that an injury can be caused in that manner and that what flows from that injury is the pain associated with the fibromyalgia. 
There seems to be a considerable divergence of opinion between the various Specialists as to the cause of fibromyalgia but in this case, as in Major, there is an acknowledgement by a Specialist that an injury did occur which arose out of and in the course of the appellant's employment and that the pain which the appellant continues to suffer is the result of that original injury. I therefore do not consider that it is necessary to traverse the issues raised by section 7 because I consider that as the appellant's continued symptoms of pain flow from the original injury the decision of the respondent to cease entitlement under section 73(1) was wrong. 
The appeal is therefore allowed and there will be costs to the appellant of $850. The respondent is to meet the cost of Dr Wigley's report. 

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