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Accident Compensation Cases

Rose v Accident Compensation Corporation (DC, 19/07/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the appellant is entitled to cover for a gradual process injury to her wrists and forearms. 
[2]
The fact which are relevant to the determination of this issue, as I find them to be, are as follows. 
[3]
The appellant is now aged 36 years and she commenced working at the second respondent's freezing works in December 1991. In 1993 the appellant began experiencing pain and discomfort in her left hand, her dominant hand, and she was diagnosed as having left sided carpal tunnel syndrome and underwent decompression surgery in September 1993 for that. A claim under the Act was duly lodged and cover granted in respect of that injury and she received entitlements under the Act. 
[4]
The appellant returned to the freezing works for the 1994/1995 season but did not resume the same duties as had been diagnosed as causing the earlier problem. Rather than being a head cracker and brains scooper she was now a neck stringer. This involved stringing the forelegs of the carcass up to the neck and tying them. 
[5]
In the 1997/1998 season she did experience symptoms of heaviness and cold sensation in her hands, wrists and forearms and in the following season she experienced greater discomfort in both forearms, wrists and hands. She described them as feeling cold and dead and by February 1999 her discomfort had reached the stage where she had to be placed on alternative duties. 
[6]
A claim for cover was lodged by the appellant in February 1999, the diagnosis from the second respondent's medical officer Dr Guthrie being bilateral carpal tunnel syndrome and he identifying that it was her work activities which had caused the condition, that condition being physically evidenced by painful swollen, blue and cold arms. 
[7]
The appellant's claim was treated as a gradual process claim and she was referred to John Talbot Orthopaedic Surgeon by Dr Guthrie. In his letter of instruction on 2nd March 1999 Dr Guthrie stated: 
“This lady has had symptoms in both wrists initially mildly last season. These have become severe this season. Her job is neck stringing which requires frequent twisting of her wrists often to maximum capacity. Most of the work is relatively light but at times they get a lot of stiff ones. Clinically I think she has carpal tunnel syndrome. I would be grateful for your assessment and investigation and treatment. ”
[8]
Mr Talbot reported to Dr Guthrie on 10th March 1999. It is to be noted that at the time that the appellant was examined by Dr Talbot she had been off work for a month. In his report he stated inter alia: 
“I note that she had a left carpal tunnel decompression undertaken in Ashburton in August 1993. 
I know that you have referred her as a possible case of carpal tunnel syndrome, but she said that her current symptoms feel different from those that she had in 1993 prior to her surgery. 
On examination there is little to find now apart from mild swelling along the medial aspects of both forearms from the elbow down. There is no local tenderness. She has a left carpal tunnel scar. 
My impression is that she is probably suffering from a type of repetitive strain injury related to her peculiar job. I doubt if this is carpal tunnel syndrome but, just to be safe, I have requested some nerve conduction studies. I will see her when these have been done. In the meantime I would suggest that you might beat the gun and refer her to an Occupational Health Physician with expertise in diagnosis and treatment of RSI I usually ask Bill Turner to see this sort of patient, but you may prefer someone else. I think this is going to be a very difficult condition to treat. I doubt whether there will be any surgical solution to it, and my feeling is that she may be looking at a job change sooner rather than later. ”
[9]
The appellant was referred to Dr W E D Turner Specialist in Occupational Medicine and Dr Turner examined her on the 24th of May 1999 and provided a report dated 9 June 1999. After examining the appellant Dr Turner reported as follows: 
“There are in fact two diagnoses that would explain the totality of this persons condition. Firstly there is little doubt in my mind that she has livedo reticularis. This presents as a blotchy bluish red discolouration discolouration of the skin due to an irregularity of the blood supply of the cutaneous vessels. It usually occurs on the limbs of women and in ponna ii was most noticeable over the thighs and foream1S. It is ordinarily more or less permanent but is accentuated by exposure to cold. The area surrounding the mottled discolouration becomes livered or cyanotic when the arterial supply is reduced. This is normally due to narrowing of the arterials in response to cold and the subsequent hypoxic dilation of capillaries and venules. The cause is unknown but occasionally it is associated with precipitating serum globulins, cushmg syndrome, tuberculosis and caisson disease. She did not have any of these conditions. 
Secondly there is little doubt m my mind that she has a regional myofascial pam syndrome affecting the muscles of her upper limbs and m particular the wrist and finger extensors and to a lesser extent the wrist and finger flexors. Examination revealed that there was muscle imbalance with reduced strength in the wrist and finger extensors compared with the flexors. A similalr finding was present in the triceps of her upper limbs compared with the biceps. She had mal alignment of her shoulders with forward drawing, there was protraction of the scapulae. I could find no evidence m my examination that she had the carpal tunnel syndrome. 
Livedo reticularis is a medical condition for which there is no known treatment. Clearly avoidance of exposure to the cold would assist in reducing the more chronically associated Clearly repetitive manual handling activity of the upper limbs can activate the trigger points, the prevailing view amongst occupational physicians however these trigger points are present in latent form as a pre-existing state, their presence from personal factors such as rirnscle imbalance, loss of strength, hand dominance and Thus in S1Jmmary her work can certainly be regarded as acting as a triggering stimulus in pain condition but it is unlikely to be primarily causative. 
There is no evidence from the history and e.xamination that she has suffered personal injury.Furthermore the myofascial trigger points when examined histologically do not manifest injury but there are certainly histochemical changes largely in relation to enzyme profiles and build up of waste products etc. 
Certainly the repetitive manual handling tasks involved in her labouring job at Fairton and also neck stringing can activate the aforementioned trigger points however it is most unlikely that they were primarily caused by the biomechanical work process. 
Clearly she has livedo reticularis which is contributing to her symptoms complex particularly the sensation of coldness and heaviness in her upper limbs, possibly also the tingling which is the primary complaint from which she currently suffers. My examination also revealed lack of muscle imbalance, lack of endurance and reduced fitness which is a factor influencing pain experience. Clearly any non work activity involving repetitive strain or constrained postures can activate trigger points but again these activities would be unlikely to be the primary cause other condition. ”
[10]
The appellant was then referred to Dr J L O'Donnell Rheumatologist/Immunologist for a second opinion. Dr O'Donnell similarly examined the appellant and he gave his opinion as follows: 
“On the basis of her symptoms and the absence of any objective signs of joint, muscle or nerve disorder it would be my conclusion that Mrs Rose suffers from a chronic regional pain disorder, previously referred to as RSI or 008. On the basis of her history there is clearly a temporal relationship to the onset of this condition with her work. There are two questions I need to address here. 
1.
What is the best treatment for this chronic regional paisn disorder? Unfortunately we do not know what the mechanism of chronic pain is so it is difficult to prescribe specific treatments that may be helpful. What seems clear is that it is important for a person to continue to remain active, although not necessarily in an occupation that seems to exacerbate their pain. Individuals who stop using their limbs because of pain genera1ly fare worse than those who continue to be active with the limbs. It is not only the limbs that need to remain active but the general body needs to improve in aerobic fitness as this seems to help with the pain management as well and for this reason most recommend some form of aerobic fitness programme. This is not just walking around the block but fitness that would lead towards the completion of something like a 10km run or swimming a prolonged period of time or cycling for a long period of time. Other measures that may be helpful are those designed to improve sleep. Improving aerobic fitness may do this as may low dose amitriptyline at night. If all these measures fail then it would be reasonable ~ to refer Mrs Rose to the Pain Management Centre at Burwood Hospital.: 
2.
What is the cause and effect relationship between her chronic arm pain and her work? This is an exceedingly contentious area. Acute pain has a different mechanism than chronic pain. Acute pain is protective. Chronic pain is not. There is no evidence on examining Mrs Rose that she has suffered a specific injury and 
yet she suffers from persistent chronic pain. The aetiology of chronic pain is poorly understood and clearly very complex. Psycho-social factors and probably genetics play an important part in its development and perpetuation. It seems that: the nervous system from spinal cord up undergoes some change in its biochemistry. Whether you consider that change in biochemistry and nerve connections: to be an injury is a moot point. It is my view that there is no direct relationship in; the sense of an injury that causes such chronic pain disorders. I would however point out that there are a number of weIl respected rheumatologists who hold a diff'erent1view. I am aware that Dr Richard Wigley in Palmerston North certainly holds an opposing view to this and in Mrs Rose's case I suspect he would take the view that there is clearly a direct relationship between her work and her pain and that her work caused her pain. Because of a multitude of other factors are involved I do not think that such a simplistic view can be taken but I alert you to this just in case Mrs Rose wants to take the issue further to give a more balanced view of the matter. 
There was another point and that was mention of livedo reticularis. Mrs Rose has; a benign form of livedo reticularis often referred to as cutis marmorata or livedo reticularis. It is a variant of normal involving a pattern of vessels underneath a persons skin in somebody whose superficial vessels tend to respond readily to the cold. ”
[11]
It was on the basis of Dr Turner's report that the accredited employer did advise by letter of 16 June 1999 that cover was declined, the letter stating that it was noted that she suffered from a medical condition which was not accident-related and that she was also suffering from a pain syndrome but that no personal injury had been sustained. It was as a consequence of that letter that Dr O'Donnell was instructed and at the same time the appellant sought a review of that decision. 
[12]
For the purposes of the review the opinion of Dr R D Wigley Consultant Rheumatologist was sought by the appellant. 
[13]
Dr Wigley examined the appellant and reported to her advocate on 22nd September 1999. In his report he stated, inter alia, as follows: 
“There is a clear relation of symptoms to work in that they recede when she does not work and increase when she does work or undertakes similar activities in the home. This establishes without doubt in my opinion, that these symptoms are work related. No alternative explanation has been discovered. Thus, the term ‘occupational overuse syndrome’ is appropriate. The history of swelling and altered colour of the forearms when the symptoms were at their worst provides independent evidence of abnormality and so evidence of injury. 
Although earlier there is some doubt as to whether she had actual carpal tunnel syndrome, the nerve conduction tests still show some abnormality on the left, confirming that diagnosis. I could not detect any definite signs of that today though there was a suggestion that sensation to pin prick was reduced in the median nerve area compared with the ulnar nerve. This can be part of the general overuse syndrome. Under the ACC approved names, this would could be classed as ‘regional pain syndrome’ to which the adjective ‘occupational’ should be added but this descriptive diagnosis is not as appropriate since pain has not been a major feature of her. injury. I prefer the name ‘diffuse symptom type of occupational overuse syndrome’ as defined in the First Edition of the Practitioners Guide. ”
[14]
Dr Wigley had the reports of Dr Turner and Dr O'Donnell as well as the notes from Dr Guthrie. In relation to Dr O'Donnell's report Dr Wigley stated in relation to Dr O'Donnell's statement that there was no evidence on examination that the appellant had suffered a specific injury, he noted that this was evidently true at the time of his examination but that there was previous good evidence of injury in that there was swelling and circulatory change in the hands and some evidence of median nerve entrapment. 
[15]
Dr Wigley went on to consider the requirements of section 7 of the Act and he considered firstly that there was indeed an injury and that the provision of section 7(1)(a), (b) and (c) could all be satisfied in the case of this appellant. Dr Wigley ended his report by stating: 
“The history, examination findings and the reports leave me in no doubt whatever that she has a work-related injury. ”
[16]
It is to be noted that with that report Dr Wigley attached what can only be described as a most impressive curriculum vitae. 
[17]
A review hearing took place on the 13th October 1999 and it was the review officer's decision that the appellant had not established, on the balance of probabilities, that she had in fact sustained a physical injury as was required under the Act. The review officer preferred the evidence of Drs Turner and O'Donnell and confirmed the correctness of the decision to decline cover. 
[18]
For the purposes of appeal to this Court the appellant sought leave to adduce further evidence from Dr Wigley and she submitted a brief of his evidence for that purpose. Dr Wigley was present at the hearing of this appeal but as counsel for both respondents indicated they did not wish to cross-examine Dr Wigley his brief of evidence was accepted. 
[19]
Dr Wigley stated in that brief, inter alia, as follows: 
“I have not visited the work place but this and the nature of the workload is detailed by Dr Guthrie the company doctor. From this and her description it is clear that the work involved repeated forceful gripping with twisting of the wrists. This increased when larger sheep and stiff sheep in poor condition were being processed (stringed). 
It is clearly documented in the USA NIOSH report (Encl 1) that such activity can result in an increase in the pressure in the carpal tunnel that contains the median nerve ant numerous tendons, which bend (flex) the fingers. The National Research Council report to the US Senate (Encl 2) describes how the pressure in the tunnel is raised by the degree of flexion or extension of the wrist and tension on the tendon by the load on the fingers. When this rises above capillary blood pressure, which is very low, the blood supply to tendons and the nerves is cut off. Both are very susceptible to injury from shortage of blood supply and so oxygen. Thus there is no difficulty in explaining injury to the median nerve causing a carpal tunnel syndrome. Failure of the carpal tunnel release operation to relieve symptoms is not surprising as she returned to the provocative activity so the repeated pressure would be applied to the nerve. 
Mr Talbot on 10 March 1999 certified ‘treatment to correct a condition that is the result of personal injury for which the claimant has cover from ACC’ and ‘On 16 March 199 he described swelling “probably suffering a type of repetitive strain injury … I doubt this is a carpal tunnel syndrome but, just to be safe, I have requested some nerve conduction studies’
Dr Donaldson, Neurologist, on 8 April 1999 carried out conduction tests. ‘The abnormal finding on the left is suggestive of mild decompression of the median nerve at the wrist. The other findings are within normal limits.’
When I examined her on 22-Sept 1999 ‘she made some mistakes on both sides with two point discrimination and possible greater pin prick sense over the fifth fingers on ea side’. This was suggestive but was not conclusive evidence of median nerve compression. 
Taking this evidence overall the evidence was of at least residual median nerve injury persisting some time after the release operation. 
In the review hearing there was a misunderstanding concerning the bluish discoloration of the skin. I noted that ‘the patchy bluish discoloration of the skin … further hack history … not relevant to her present symptoms or occupation’. In this I referred to what had been named LIVEDO RETICUL4RlS. This is a complaint that is usually related significant diseases. Dr O'Donnell correctly pointed out that this is in Mrs Rose's case should have been named CUTIS MARMORATA. That is a condition of similar: appearance that is only of cosmetic importance and so should be disregarded. 
It is not disputed that originally there was injury to the median nerve. This led to operation. Whether the persisting symptoms arise from persistence of nerve injury on the secondary extension to the less defined overuse symptoms, these are indicative of injury unless a very narrow definition of injury is used. This narrow medical definition requires that there be evidence of physical injury demonstrable by direct observation or by operation, microscopy or some imaging technique. In Mrs. Rose's case this definition was satisfied in that there was nerve damage, circulatory disturbance and reduced grip strength. The legal definition of physical injury is wider as detailed by Mr John Miller in his submission in the case of Marino vs. ACC under Judge Barber. Under this definition which would include physiological and biochemical abnormalities, chronic pain alone could be considered to be an injury. ”
Submissions 
[20]
Ms Watson, advocate for the appellant, submitted that there was considerable evidence from the specialists and work interview reports that the appellant's work tasks and environment had a property or characteristic which caused the appellant to suffer a physical injury. She submitted that the evidence of swelling and of median nerve entrapment and circulatory changes to the hands are evidence of physical injury. 
[21]
Ms Watson finally submitted that Dr Wigley had considered the tests required under section 7 of the Act and that, having established that a physical injury had taken place, the necessary requirements to establish cover for a gradual process injury had been made out. She also referred to the decision of His Honour Judge Barber in Marino (Decision 72/2000) as supporting her submissions. 
[22]
Mr Hunt, counsel for the first respondent, submitted that the appellant cannot establish that she has suffered a physical injury and he further submitted that the conclusions reached by Dr Talbot, Dr Turner and Dr O'Donnell which are to that effect, should be preferred. Counsel further submitted that some of the symptoms identified are those of cutis memorata which is established as not having been attributable to her work place situation. 
[23]
Counsel submitted that because the appellant could not satisfy the “threshold test” of personal injury, her claim for cover could not succeed. 
[24]
Mr Greene, advocate for the second respondent, supported the submissions of Mr Hunt and further noted that a diagnosis simply stated as being occupational overuse syndrome, which was referred to by Dr Wigley, is not an acceptable diagnosis to establish personal injury. 
[25]
Mr Greene finally submitted that if the Court found that there had been personal injury then nevertheless the matter should be referred back to a review officer to consider whether the relevant criteria of section 7 had been established. 
Decision 
[26]
This is a claim for cover for personal injury arising out of the appellant's employment with the second respondent. It was a claim for cover for what is known as a gradual process injury. That claim was made by the appellant on or about the 20th of February 1999. 
[27]
Supporting that claim was the certificate from Dr Guthrie the second respondent's medical officer, and whilst his diagnosis/prognosis of bilateral carpal tunnel syndrome might have been conditional, he did diagnose the physical effects of her condition as being painful, swollen, blue and cold arms. 
[28]
When the appellant was seen by John Talbot he identified mild swelling along the medial aspects of both forearms from the elbow down. He doubted whether it was carpal tunnel syndrome. The nerve conduction tests which Dr Talbot requested showed that there was an abnormal finding on the left suggestive of mild compression of the median nerve at the wrist. 
[29]
It is to be noted that the examinations of Dr Guthrie and Dr Talbot, and the nerve conduction tests, were all done within a short time of the appellant ceasing work because of her condition. 
[30]
It is not until June 1999 that the appellant is examined by Drs Turner and O'Donnell and each of them identify a regional pain syndrome affecting the muscles and limbs which had earlier been identified as having been swollen but at the time of their examination there was only the pain in those areas rather than any other physical signs of strain. There is little difference between the physical findings from examination by Drs Turner and O'Donnell from that which were found by Dr Wigley and yet Dr Wigley is able to correlate the physical findings that had been seen and identified by Drs Talbot and Guthrie as providing evidence of abnormality and evidence of injury. 
[31]
For the purposes of cover I find that the question of whether or not the appellant's injury has progressed into some more diffuse or regional pain syndrome is not the question that this Court is at this time called upon to answer. The requirement is for a determination to be had as to whether or not this appellant has suffered a physical injury as a consequence of her work tasks or her work environment. To that question I find that there is only one answer and that is that the appellant did indeed suffer personal injury. That injury was sufficient to prevent her from working, to be seen by the second respondent's medical officer and referred to a specialist and for that specialist to identify the physical signs of injury consistent with the type of use to which those particular limbs were being put in her daily work. 
[32]
To my mind the opinions of Drs Turner and O'Donnell are to be respected but they relate to a point later in time and are not relevant to her condition on the date when this appellant suffered her injury, namely when she first felt the symptoms sufficient to seek medical treatment, which the file shows was on or about the 17th of February 1999. 
[33]
In the course of submissions the appellant's advocate referred to the decision of His Honour Judge Barber in Marino (72/2000) where the issue was also one of gradual process claim for a suspected carpal tunnel syndrome. Dr Wigley also gave evidence in that claim. And again there were competing medical opinions. In his decision the Learned Judge stated as follows: 
“I can quite understand Mr Barnett's submission that where the diagnosis is not in issue, but the cause is, then the occupational physician is best placed to make the assessment and that in this case all three of them, Professor Gorman, Doctor Bremner and Doctor Monigatti are not satisfied that the appellant's fibromyalgia is caused by her work. On the other hand Doctor Wigley for the appellant considers that there is a causal association between the appellant's work tasks and the chronic pain syndrome from which she suffers. As I remarked to Mr Barnett, the medical witnesses are no more than givers of evidence based on their professional skill and experience. Their integrity is, of course, not in question. At the end of the day, it is the Court which must stand back and look at the scenario overall, and decide whether issues have been proved on the balance of probabilities. Professional though they are, medical witnesses do proffer their evidence on behalf of a particular party and, in any case, when formulating their opinions have not heard the evidence which I have heard. 
Mr Barnett sought to make quite something of the point that if the appellant had carried out such work for 23 years without injury, then that work cannot have been the cause of the gradual process injury from which she now suffers. However, I find that the nature of the appellant's work and her environment caused the gradual process injury which I have described. Perhaps the fact that she had subjected herself to that wear and tear for 23 years led to an accumulating situation whereby she was prone or vulnerable at the time the symptoms emerged. Certainly, the fact that she had performed the work for 23 years without injury does not seem to me to be a compelling factor for arguing that her work was not causative of her gradual process injury. 
I certainly agree with Mr Barnett that, in declining cover, it is not for the respondent to prove some other cause of the chronic pain syndrome. He refers to it being difficult to assign a cause to the appellant's condition because that condition is widely regarded as having no proven cause. I am aware of much of the literature written about these OOS type conditions by medical experts and, quite frankly, I find a lot of it to be somewhat isolated from reality. 
However, I am concerned with the particular facts of the case before me. I am certainly not captured by the argument for the respondent that psycho-social stresses were the cause of the complaint. Mr Barnett referred to this concept a number of times but in typed submissions stated: 
‘It is not for the respondent to prove, for example, that psycho-social stresses were the cause of the complaint. ’
I can accept that, perhaps, psycho-social stresses have exacerbated Mrs Marino's condition. However, without wishing to appear simplistic, I see a picture of a woman cleaner steadily carrying out a demanding and heavy job which stresses her hands, wrists and arms so that she eventually succumbs to some type of OOS condition. I note that the medical experts keep changing the name of that condition. In the absence of some compelling supporting evidence, I could not accept that condition has arisen from psycho-social stresses in terms of the facts of this case. ”
[34]
In this present case the appellant was carrying out a repetitive work task which had the characteristics to cause the type of injury to her wrists and forearms, being a strain type injury. In addition to the pain which she undoubtedly experienced there was the physical manifestation of swelling and discolouration. Whether or not the discolouration may have been attributable to the unrelated condition of cutis memorata is beside the point. There is no suggestion that cutis memorata was the cause of the pain or the swelling. The appellant had some years previously suffered from carpal tunnel syndrome for which she had been given cover and the nerve conduction tests which were carried out for her present condition did establish an abnormal finding on the left. Even an abnormal finding of nerve patterns I find must amount to a personal injury, and as it is so closely associated with the well-recognised injury of carpal tunnel syndrome which is particularly associated with the type of work that the appellant was doing, then that abnormal nerve condition is a condition caused by the work tasks. 
[35]
As I have stated above, the Court is only concerned with the appellant's entitlement to cover at the time she makes her claim, not several months down the track when her condition may well have progressed, as is known to be the case for a certain minority group in the community whose condition does not resolve but for reasons which have not yet been properly determined progresses into what is commonly described as a regional pain syndrome. 
[36]
The Court is not going to make any finding at this time on the effect that that condition has on the appellant's eligibility for continuing entitlements save to say that it does not impact upon her entitlement to cover in the first instance. 
[37]
For the foregoing reasons therefore I find that the appellant has satisfied the test on the balance of probabilities that she did suffer a physical injury and that it was work-related. Furthermore, I am satisfied from the evidence of Dr Wigley and the comments of other specialists that the provisions of sections 7(1)(a), (b) and (c) have been satisfied and under those circumstances I see no reason to refer the matter back to a review officer for consideration of that question. 
[38]
Accordingly, the decision to decline cover to the appellant is revoked and cover under section 7 of the 1992 Act is hereby granted to the appellant, that injury being that which was identified by Drs Guthrie, Talbot and Wigley. 
[39]
The appellant is entitled to costs which I fix at $1000 together with costs associated with the brief of evidence of Dr Wigley. I direct that each respondent pay a half share of the costs and disbursements so fixed. 

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