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Accident Compensation Cases

Barnett v Accident Compensation Corporation (DC, 12/09/00)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether the respondent's decision of 29 April 1999 to revoke its earlier decision of 11 October 1994 granting cover to the appellant for a gradual process injury, was correct. 
The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 
The appellant is now aged 54 years. From 1986 through to 1996 she was employed by the New Zealand Dairy Board at its head office in Wellington as a telephonist/Switch Board Operator. 
Commencing in January 1994 the appellant began to experience pain in her neck, shoulders and arms, that pain coming on during the course of her working day. 
In April 1994 she consulted her GP, Dr Jordan, about her problems. In her note dated 12 May 1994 Dr Jordan stated as follows: 
“This woman has consulted me regarding musculoskeletal symptoms, especially pain and stiffness, affecting her neck, shoulders and upper arms. These have been investigated with X-rays and blood tests which have been normal. 
She has difficulties with her work as telephonist and typist, in which she uses computer equipment with VDU screen and keyboard. It is not entirely clear that her work duties have been the cause of her symptoms, although there is some likelihood that they may have contributed to some degree. However, it is clear that the continuing repetitive movements and the posture adopted during her work tends to worsen her pain and disability, creating suffering for her and reduced ability to complete her work adequately. 
Physical therapy has been tried to some extent already with minimal benefit and she is requiring pain-relieving medication at present. For further improvement in her symptoms and ongoing management to prevent worsening pain and stiffness some particular modifications in her work practices will be desirable. ”
Following on from that, a claim for cover under the Act was lodged by the appellant on or about 16 May 1994. The diagnosis given by Dr Jordan on that claim form was: 
“? OOS neck and both arms. 
Musculo skeletal pain and stiffness (?) of uncertain aetiology in neck and upper limbs. Possible occupational overuse problems contributing. ”
The appellant's claim was treated as a gradual process claim and the appropriate questionnaires were sent to the claimant, her GP, and her employer. In the medical questionnaire Dr Jordan stated: 
“Musculo tendonous pain and stiffness of neck, shoulder and arm musculature bilaterally. Exact diagnosis and prognosis undertain. Noted to be worsened/aggravated by her usual work as telephonist/receptionist using electronic keyboard. ”
In answer to the question, what specific tasks/activities have caused the condition to develop, the doctor replied: 
“Uncertain- but repetitive upper limb/hand activities in her work have been noted to be associated with aggravation of symptom. ”
The Case Manager assigned to the appellant's claim was satisfied that it met the requirements of the Act and recommended acceptance. This recommendation was approved by the Supervisor of the Porirua Branch of the respondent and the appellant was duly advised by letter of 11 October 1994 that her claim for cover had been accepted. 
In September 1994 Dr Jordan referred the appellant to Dr Chiu, Consultant Rheumatologist. In his letter of referral Dr Jordan stated, inter alia, as follows: 
“This telephonist/receptionist presented about six months ago complaining of gradual onset of stiffness and soreness in the neck, shoulders and upper arms from about the beginning of this year, which she felt related to her work with repetitive manipulation using a keyboard. Since she had been doing this work for some while longer than the onset of the symptoms, it wasn't entirely clear to me that the work was causative, although certainly her work activities did seem to be associated with worsening of the symptoms as they presented this year. She submitted a claim to ACC for gradual onset work related soft tissue strain and I understand that this claim has been accepted. Earlier on in the year she tried some physical therapy including chiropractic without any significant benefit. We have discussed various aspects of work posture and ergonomics but attention to these areas seems to have been unrewarding so far as well. Because of an apparent marked peptic reaction to Aspirin we have avoided any non-steroidal anti-inflammatory agents but she has taken some other analgesics including Acupan. At a more recent visit with me, her concern was less with musculature of the neck and shoulders and more focused on musculo-tenderness soreness in the right wrist and forearm. She is now going to carefully try some slow release Voltaren for symptom relief watching for any GI side effects. ”
Dr Chiu examined the appellant on 29 September 1994 and reported to Dr Jordan on the same date and his report states as follows: 
“Thanks for referring Mrs Barnett with her right arm and neck pain. She has been working as a receptionist/telephonist for the past seven years for the Dairy Board and has had intermittent discomfort in her neck over the past couple of years. However it started to become more constant at the beginning of 1994 and she saw a chiropractor for treatment. However because of lack of response from this she saw yourself and was given Acupan. However she has been reluctant to take this. Over the past four to five months the pain has spread to involve her right wrist and forearm. She has soreness present most days and the pain in her neck and shoulders is there most of the time. Currently however her wrist is not too bad. The pain may occasionally interfere with her sleep and she has difficulty lying on her right side. She took a week off work a month ago but this made no impression to her levels of pain. An ACC work assessment was carried out two months ago and it was felt that the ergonomics were satisfactory. 
She has vasospasm in her fingers, which can occur in any weather, and this problem has been present for many years. She used to smoke heavily but now smokes only about two cigarettes a day. She is still on Lorazepam 1 mg a day having previously been on long term Valium. 
She swims twice a week for about 15 to 20 minutes though has not done so for the past few weeks. If she does breast stroke then she notices her neck pain is a little worse. 
General examination was unremarkable. There is no evidence of synovitis. Neck movements were full though she felt some pain on axial rotation at the extremes and there was also pain in her neck felt on resisted neck extension. She lacked the fibromyalgic tenderness that is often seen in this condition. There was no neurological deficit. 
The problem sounds very much like an occupation overuse syndrome due to high stress levels and the amount of work that she is doing. I understand that one of her fellow receptionists was made redundant two weeks ago so the workload is actually increased. 
1 don't think she should carry on working while she has this pain and should take at least a month of work and then return on a part time basis if the pain has disappeared by that time. She will need to increase the amount of exercise she is doing and I have suggested that she swim at least five times a week for at least half an hour. When she is working she should try and practice micropauses, that is try and relax the muscles every three minutes or so. If she does manage to take this one-month off work, then I suggest she be reviewed at the end of that period. ”
In June 1995 the respondent instructed that a work place assessment be carried out at the New Zealand Dairy Board's offices and this was carried out by Phillipa Grimes, Occupational Health Specialist. In her report of 9 June 1995 she made various recommendations to improve the conditions under which the appellant worked and also the work habits of the appellant herself. Those recommendations were duly implemented by the New Zealand Dairy Board and the appellant herself and the appellant was reminded of the continuing need for self-management measures. 
In March 1996 a further workplace assessment was carried out by Jan Stickney, Occupational Therapist, the principal purpose being to discuss the appellant's situation and plan her rehabilitation. Again the appellant was given a number of self-management strategies to assist her to carry out her work tasks and she continued on in her employment. 
The appellant was referred back to Dr Chiu in March 1996 and his report narrates her immediate history and he noted that she was still experiencing pain but that she lacked any fibromyalgic tender points. 
The appellant ceased her employment with the New Zealand Dairy Board in May 1996 and despite attempts at other forms of employment since then she has been largely not working and in receipt of weekly compensation. 
In January 1999 the appellant's Case Manager initiated a specialist review of her case and to that end referred her to Dr Peter Dodwell, a Specialist in Occupational and Aviation Medicine. Dr Dodwell was asked to advise on the appellant's current medical condition, the reason for the protracted nature of her recovery and whether there were any other factors other than the condition diagnosed in April 1994 that might be contributing to her current incapacity. 
Dr Dodwell saw the appellant on 16 March 1999 and initially reported to the respondent on the 3 April 1999. However subsequent to that report, the respondent was able to provide Dr Dodwell with the reports from Dr Chiu and after considering those reports, Dr Dodwell furnished a further report dated 19 April 1999 and in which he advised that the reports from Dr Chiu did affect his earlier report and that the report of 19 April 1999 was intended to replace the earlier report of 3 April 1999. It seems the only other medical information which Dr Dodwell had was a letter from the appellant's now GP, Dr Rodrigo, in which she stated that her diagnosis of the appellant was OOS arms/shoulder and neck. 
In his report Dr Dodwell states: 
“The reports provided did not include ARC18 forms, and so the only diagnostic detail was in Dr Rodrigo's and Dr Chiu's letters. Dr Rodrigo used the term ‘OOS arms/shoulders and neck’, and Dr Chiu merely used the term ‘OOS’. Neither elaborated further. The term is not a specific diagnosis, but a way of expressing the opinion that work has been causal. Without more specific diagnoses being offered this is not sufficient for ACC purposes. If a clear injury has not been identified, and without causal evidence, such as a plausible mechanism of injury from work, it is not appropriate to use the term ‘OOS’ as the diagnosis. 
The symptoms have been non-specific and quite generalised, affecting the whole R upper limb and neck. The extent and persistence of these symptoms suggests a regional pain (or chronic pain) syndrome. The history of vasospasm for years is common is such syndromes. It is otherwise not possible to account for the protracted nature of recovery. 
If the work had been causal, the ‘OOS’ symptoms could be expected to resolve 6 to 8 weeks after ceasing such work. Since this did not happen, there is no satisfactory causal link, and no clear physical injury. The symptoms from the outset have been widespread, and more consistent with a problem of muscle tension (‘tension neck syndrome’), which is supported by the evidence of prolonged earlier use of Valium. 
CPS (Chronic Pain Syndrome) is believed to be partly an underlying inflammatory process and partly an alteration in perception of pain, and numerous studies (summarised in 1997 in a NOISH review paper) fail to demonstrate that work practices are more than coincidental in triggering the initial symptoms of CPS. In particular, the NIOSH study found that only certain types of occupation involving force, repetition and awkward upper arm posture were associated with neck/shoulder symptoms of the sort which are a major complaint of this patient. ”
It was on the basis of Dr Dodwell's report that the appellant's Case Manager advised the appellant by letter dated 29 April 1999 that the Corporation was revoking its decision of 11 October 1994 to accept cover and it was so doing pursuant to the provisions of section 67A of the Act. The letter advising that Dr Dodwell had concluded that there was no evidence that her current symptoms were caused by a specific injury. It went on to state “Dr Dodwell in his report explains that there is no clear physical injury from work”
The appellant sought a review of that decision and through her GP she was referred to Dr Keir Howard, Specialist Occupational Physician. In his report of 14 May 1999 Dr Howard noted that he had reports from Dr Chiu and “the brief note from Dr Dodwell”. From that description it is unclear to what note Dr Howard may have been referring as the report from Dr Dodwell of 19 April 1999 is of some three and a half pages and could hardly be described as a brief note. 
Dr Howard's examination determined that the appellant had generalised soft tissue tenderness in the upper fibres of the trapezius extending as far as the back of the neck and she also had tenderness in other parts of her upper body. Dr Howard disagreed with Dr Dodwell's diagnosis and did not consider that the appellant exhibited features of a genuine chronic pain syndrome, either generalised or regional, but he did describe her condition as being myalgic tenderness, which he described as tension myalgia. 
Dr Howard's report was referred to Dr Dodwell and it was Dr Dodwell's comment that there was very little difference between chronic pain syndrome and tension myalgia but he did note that Dr Howard's diagnosis of tension myalgia related to non-physical stress and would thus be excluded under the Act. 
A review hearing took place on 15 July 1999 and in his decision the Review Officer found that the medical evidence was clear that at the time the Corporation accepted the appellant's claim, the appellant was not suffering from a physical injury and therefore her claim could not come within the definition of ‘personal injury’ under the Act. The Corporation's decision to revoke cover was confirmed. 
For the purposes of the appeal to this Court no further medical evidence was sought to be adduced although counsel for the respondent had obtained the original doctor's notes of Dr Jordan and these hand-written notes were produced. 
At the hearing of this appeal the Court received briefs of evidence from the appellant and her partner which were admitted without the necessity of cross-examination and in addition, the Court heard the evidence of Jan Stickney, Occupational Therapist. 
Ms Stickney gave evidence of her work place assessment conducted in March 1996 and she referred to the report that she made to the respondent at that time. That report noted that the appellant's job involved working a busy switchboard, sitting for long periods in the same position and she identified certain deficiencies in the set up of her switchboard computer monitor, the keyboard and her lack of desk space in the positioning of her keyboard. 
Mr Stickney stated in her summary as follows: 
“Robynne has had occupational overuse syndrome for a number of years affecting her ability to carry out her job as a switch board operator. Her symptoms are easily irritated by use of a key board, maintaining sustained postures, some repetitive hand activities, and activities requiring force, weight or effort. She is vulnerable to environments where there is a lot of stress or high workload demands. ”
In concluding her evidence Ms Stickney stated further as follows: 
“In general I determined that she had been required to work for many years using a computer keyboard and screen plus telephone switchboard equipment that were very poorly set up. The call volumes were high, I believe in the order of 500 — 800 per day, and she was required to sit there all day every day for years only with breaks for tea, lunch toilet etc. 
In my professional opinion the physical stress that resulted from the poor ergonomics of the workplace together with the volume of work she had been required to handle for many years would have certainly been factors which contributed to the occupational overuse syndrome injury which the Appellant suffered from. ”
In cross-examination from Mr Barnett, counsel for the respondent, Ms Stickney acknowledged that the appellant would have been the subject of non-physical stress as well as the physical stress from the set up of her workstation. 
In his submissions Mr Cuttance, advocate for the appellant, submitted that there ought to be a heavy onus on the appellant to establish the basis for its decision to revoke its earlier decision granting cover. He submitted that the original decision was not simply a pro forma decision but one which had been made after receipt of proper medical evidence and after due inquiry. 
Counsel submitted that the respondent's decision to revoke cover was based on the report of Dr Dodwell, made some five years after the decision to grant cover was made, and counsel submitted that Dr Dodwell was in effect stating what the appellant's present condition was rather than that which pertained at the time the cover was granted. 
Counsel submitted that there was no evidence to show that the assessments made at the time cover was accepted in 1994 were wrong and therefore there was no basis for cover to now be revoked. 
Mr Barnett, counsel for the respondent, submitted that the evidence establishes that there was not a discreet injury identified. Counsel further submitted that the report from Dr Dodwell indicates that there is presently no evidence of injury and that there never was an injury. He submitted that Dr Dodwell was not just talking of the appellant's present condition but that which pertained at the time that cover was granted. 
Counsel referred to the GP's medical notes and the references to the history of tension and stress and submitted that if those were causative factors in the appellant's condition then cover was excluded by virtue of the provisions of section 7(4) of the Act. 
This is the second appeal which the Court has heard this week which has involved the questioning of the respondent's decision to revoke cover to a claimant some five years or more after granting cover for a gradual process injury. That earlier appeal was the matter of O'Hara (Decision … ) and the observations I made in that decision are equally as relevant in the present case. 
The decision, which is appealed, is that of the respondent made on 29 April 1999 to revoke the cover granted to the appellant for her claimed gradual process injury which had been granted by the respondent in October 1994. 
As was the case in the O'Hara matter, the author of the decision letter of 29 April 1999 is getting his signals somewhat mixed, in that the grounds stated in the letter talk of the appellant's present condition as disclosing no clear physical injury and that there is no evidence that her current symptoms were caused by a specific injury itself compensable under the Act. Such reasoning would be more appropriate for a decision to be made under section 73(1) of the 1992 Act or section 116 of its successor, the 1998 Accident Insurance Act. 
Rather than use those provisions, the Corporation applied the provisions of section 67A of the 1992 Act which gives the Corporation the power to revoke or amend a previous decision if it appears that that decision had been made in error. Thus it is by its decision of 29 April 1999 the respondent is contending that the appellant ought not to have been granted cover for her injury, rather than it contending that she is now no longer eligible for entitlements in respect of the covered injury. For this reason therefore, it is necessary for the Court to consider the evidence that exists which relates to the initial decision to grant cover, and in particular, what was the medical evidence which could establish that the appellant had suffered personal injury by gradual process arising from her employment with the New Zealand Dairy Board. 
Medical evidence as to the appellant's present condition is not helpful or relevant to that inquiry and in that regard, evidence which seeks to look back some five years or so must be treated with caution, but present day opinion evidence based on the hard data of the facts which were available at the time the claim for cover was made would be acceptable. In other words simple reverse crystal ball gazing based on present day examination of the claimant is unlikely to be persuasive but opinion evidence based on reasoning from hard facts that have been ascertained at the relevant time must be persuasive. 
In this present case, the hard facts are few. Although the Act had been in force for some two years by the time this appellant lodged her claim, it has been the Court's experience with many appeals involving claims for cover under section 7 of the Act that even by then those claims were considered and dealt with in many instances on less than satisfactory information, both medical and occupational. 
A prime example arises in this case where the respondent accepted from two sources, a general practitioner and a specialist rheumatoligist, a diagnosis of occupation overuse syndrome arising from the stress and work that the appellant was required to carry out. The original diagnosis submitted with the claim form by Dr Jordan was simply OOS in neck and both arms. It is to be noted that both in the claim form and in the medical questionnaire Dr Jordan displayed uncertainty by putting a question mark next to the word OOS in the diagnosis and by referring to possible occupational overuse problems contributing and then stating exact diagnosis and prognosis uncertain. 
To his credit, Dr Jordan referred the appellant to a specialist Dr Graham Chiu, Physician/ Rheumatologist and whilst it cannot be certain that the respondent had the benefit of Dr Chiu's report of 29 September 1994 before it made its decision, nevertheless that report does represent the only contemporaneous specialist evidence pertaining to the appellant's condition. That report describes the history of the appellant's pain in her neck, right wrist and forearm and more latterly shoulders. He noted that she had taken a week off work but it had made no impression to her level of pain. 
Dr Chiu examined the appellant and he stated that this examination was unremarkable. Most importantly he stated “There is no evidence of synovitis”. Synovitis is the inflammation of a synovial membrane, it is usually painful, particularly on motion and is characterised by a fluctuating swelling due to effusion within a synovial sac (Dorland's Medical Dictionary 27th Edition). 
Dr Chiu also noted that there was no neurological deficit. 
Dr Chiu concludes by stating that the “problem sounds very much like an occupation overuse syndrome due to high stress levels and the amount she is doing”
It was on the basis of that evidence and detail that the respondent granted cover to the appellant for her OOS injury. The only intermediate diagnosis that occurred from that of Dr Chiu in September 1994 until Dr Dodwell in April 1999, was that of Dr Rodrigo in December 1998 when she simply advised the respondent that the appellant's diagnosis was OOS arms/shoulder and neck. Various ARC 18 certificates issued by the appellant's successive GPs over the years have simply referred to OOS arms, shoulders, neck or similar. 
It is the assessment of Dr Dodwell based on the information that he had, which I find was in effect all the hard data which was available at the time the original decision was made, that no clear injury had ever been identified and there was no causal evidence such as a plausible mechanism of injury from work. He noted, as is gernearlly accepted to be the case now, that the term OOS is not a specific diagnosis and it is my experience that such a diagnosis would not be accepted today as being sufficient to determine physical injury for the purposes of a gradual process claim. 
For the purposes of this decision, I take no account of what Dr Dodwell or Dr Howard say is the present condition that the appellant suffers from as that is not relevant to the determination of the issue in this appeal. For this reason, I find that Dr Howard's advice is not particularly relevant and cannot assist in the determination of the issue. 
The Court does however accept the opinion of Dr Dodwell that there has been no specific injury identified in the diagnosis made at the time and in that regard the Court notes the finding of Dr Chiu on examination that there was no evidence of synovitis. This Court is aware that almost without exception the type of injury which is categorised by the term Occuptional Overuse Syndrome or Repetitive Strain Injury is the injury of tenosynovitis or an associated identifiable injury such as carpal tunnel syndrome or tendonitis, all of which have been scientifically established as being physical injury that can arise from the repetitive use of particular muscles or tendons in certain aspects of a range of particular work tasks. 
In the case of this appellant, there is no evidence of any physical injury such as tenosynovitis, tendonitis or other identifiable repetitive strain injury which might be attributable to some facet of her work tasks or her work environment. The Court does acknowledge that it has received evidence of her work environment and the fact of her tasks being carried out under stress. However, there is no evidence of a causal nexus between any work task or the environment (i.e. her workstation) and a discrete physical injury. 
The need to identify a discrete physical injury is not only required by the statutory provisions that were applicable but it is also required in order to particularise the claimant's condition from the general term of OOS which might be used quite properly in some circumstances when dealing with the claimant's entitlements. The need to particularise I find can be demonstrated by referring to the statement made by Dr W E D Turner, Occupational Medicine Specialist, and has given evidence in a considerable number of cases in appeals to this Court and where in his book The Occupational Overuse Syndrome he has stated as follows: 
“Occupational overuse syndrome [OOS] is the collective term for a range of conditions characterised by discomfort or persistent pain in muscles, tendons and other soft tissue with ou [sic] without physical manifestations. OOS is usually caused or aggravated by work, and is associated with repetitive movement, sustained or constrained postures and/or forceful movements. Psychosocial factors, including stress in the working environment, may be important in the development of the syndrome. Some conditions that fall within the scope of OOS are well-defined and well understood medically, but many are not, and although the basis for the cause and development of these is becoming clearer, it has yet to be fully elucidated. OOS occurs among workers performing tasks involving either frequent and/or forceful movements of the limbs, or maintenance of fixed postures for prolonged periods. ”
Whilst the Court is aware that there is some controversy over the epidemiology of certain strain injuries, chronic pain syndrome and fibromyalgia, nevertheless I find that the opinion expressed by Dr Turner above is indicative of the wide range of the situations that can give rise to pain and that not all of those circumstances are ones that give an entitlement to cover for personal injury by gradual process under accident compensation legislation. 
In the circumstances of this present case, I do find that this appellant has been let down as it were by the way in which the respondent initially received and then accepted her claim for cover. It ought to have made proper inquiries as to the exact nature of any physical injury and secondly, whether there were any causative factors between that injury and her work place/work tasks as is required to be satisfied by then section 7(1)(a) of the Act. 
Whilst I consider that the respondent was less than diligent in its initial handling of this claim that cannot be set up against it when all that occurred was to allow a claimant to obtain cover when that cover ought properly not to have been granted. This is the conclusion that I have come to based on the evidence that was available to the Corporation at the time. 
Whilst it is clear that the appellant was suffering from pain there was no evidence, and Dr Chiu carried out an examination for that purpose, that the appellant was suffering from any physical injury. Even if it were to be accepted that there was physical injury, there was no evidence that any such injury was as a consequence of any work task or work place situation so as to establish a causative link as required under the Act. 
Although it is only there in the background, the factor of psychological stress, or to put it another way, non physical stress, was present and acknowledged and if there were any physical manifestations caused by non-physical stress then that is not compensable by virtue of section 7(4) of the Act. 
In the final analysis therefore, I rule that the respondent was correct to revoke cover for the appellant as it did on the grounds that the appellant could not establish entitlement as required by section 7(1)(a) of the Act. Accordingly therefore, this appeal must be dismissed. 

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