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Accident Compensation Cases

Peters v Accident Compensation Corporation (DC, 22/02/01)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the second respondent, acting in its capacity as an Accredited Employer, was correct in its decision of 7 April 1998 to revoke its earlier decision of 19 June 1996 to grant cover under section 7 of the Act to the appellant for a gradual process injury arising from her employment as a Directory Assistance Operator with the second respondent. 
[2]
The facts which are relevant to the determination of this issue, as I find them to be, are as follow. 
[3]
The appellant is now aged 51 years and was at all material times employed by Telecom NZ Ltd at its Palmerston North branch as a Directory Assistance Operator and the appellant had been so employed by the second respondent since March 1990. 
[4]
In May 1996 the appellant lodged a claim for cover with the second respondent, who is an ACC Accredited Employer pursuant to section 105 of the Act, in respect of OOS in both arms said to have been work-related. 
[5]
On receipt of the appellant's claim the second respondent referred it to CRM Ltd, Risk Managers and Administrators, for it to handle the administration of the appellant's claim on its behalf. 
[6]
The medical certificate on that original claim form completed by the appellant's GP, Dr Drummond, gave as the diagnosis OOS bilateral. 
[7]
In the injury details completed by the appellant, the injury is stated as being RSI — work-related. Both arms. 
[8]
The form went on to state that the date of the injury was about March — gradual deterioration and it stated that the appellant's first visit to her doctor for treatment was 27 May 1996. 
[9]
The appellant's claim was treated as a claim for cover for a gradual process injury and gradual process questionnaires were sent out and completed by the appellant, her doctor and her employer. 
[10]
In the Medical Practitioner Questionnaire Dr Drummond again gave as the diagnosis OOS bilateral. He stated that the cause of the condition was Keyboard usage. He stated that he knew of no non-work activities which could have contributed to the development of her condition, and he indicated that the appellant had no history of this complaint. He advised that he had referred the appellant on to SIRCLE, who were a group of occupational therapist specialising in the treatment of occupational overuse syndrome. 
[11]
Telecom through its Team Manager, Dalveen Boyle, completed the Employer Questionnaire noting that the appellant's duties comprised “Sitting at a computer console and keyboard searching for information regarding directory listings, has programmed VDU breaks, 2-15 min breaks and one 30min during shift”
[12]
The questionnaire indicated that others performing similar work had suffered from this condition and that an OSH survey had indicated a need for ergonomic equipment, chairs, arm rests, screen raisers, awareness of exercises, information regarding health and safety — each of which has been progressively fulfilled. 
[13]
In the panel for other comments it is stated as follows: 
“Jan did constantly sit with her keyboard on an extreme angle — when approached Jan always pointed out that this was the way she felt comfortable and did not feel that there was any problem — also had a back problem (ACC Claims 16.5.94).. Tended to lean back on chair which elevated pain. Jan has informed me in recent weeks that she put her keyboard down and this was when the pain started. ”
[14]
The claim file would indicate that no further inquiry of any sort, whether medical or occupational, was carried out and the appellant was advised by letter of 19 June 1996 that her claim for cover had been accepted. 
[15]
Thereafter the appellant commenced receiving entitlements, in particular payment of medical and physio fees, and the medical certificates issued by Dr Drummond simply recited the injury as being OOS arms and that the treatment was for pain. 
[16]
The appellant ceased work at the time her claim was lodged and subsequent medical certificates from Dr Drummond confirmed her unfitness for work. In a certificate dated 17 July 1996 he noted that the pain in her arms was worse. 
[17]
Subsequent medical certificates also mentioned the injury as being signified by pain. 
[18]
In addition to medical entitlements the appellant commenced receiving weekly compensation, that compensation commencing from 7 June 1996. 
[19]
In March 1997 the appellant was referred to Dr R D Wigley, Consultant Rheumatologist, for assessment by CRM Limited and Dr Wigley reported to it on 1 April 1997. Dr Wigley's report noted, inter alia, as follows: 
“She initially developed pain in the neck which she thought may not have been relevant but in retrospect it was I think the beginning of her present problem. About eight months ago she started getting pain in the arms, more marked on the right. She is right handed. There was some improvement with lighter work but the symptoms recurred severely and she has not been free of them since. ”
[20]
Dr Wigley's diagnosis was 
“She has well marked bilateral occupational overuse symptoms affecting mainly the right side and arising out of her work at Telecom. ”
[21]
Dr Wigley went on to recommend a course of treatment and referral and he indicated that it was unlikely that she would be able to return to her former employment. 
[22]
In a note to CRM dated 18 March 1997 Dr Drummond gave as his diagnosis: 
“Bilateral muscular and tendon pain in both arms and shoulders, consistent with what is loosely called OOS. She has had both physiotherapy and massage and is currently being referred to Dr R A D Wigley who is Rheumatoglist specialising OOS. ”
[23]
The appellant continued to be certified as unfit to return to work and although there were attempts at vocational rehabilitation nothing positive eventuated and the appellant continued to receive weekly compensation into 1998. 
[24]
In March 1998 CRM sought a further medical evaluation on the appellant's condition and referred her to Professor Gorman, Head of Occupational Medicine at the University of Auckland. Professor Gorman interviewed and examined the appellant on 17 March 1998 and reported to CRM on that same date. Professor Gorman had a copy of Dr Wigley's report of April 1997 as well as other background medical information, such as it was. 
[25]
Dr Gorman's diagnosis was that the appellant had a resolving chronic regional pain syndrome and he noted that there was no evidence that her pain syndrome was post traumatic. 
[26]
Professor Gorman then went on to consider the appellant's condition as he had diagnosed it in the context of the Accident Rehabilitation and Compensation Insurance Act 1992 and in this context he stated as follows: 
“Cover in this context requires that the following conditions are met. 
The pain syndrome is, at least in part, a response to a discrete injury. Many pain syndromes onset with local pain - this is not indicative of an injury and just represents the first phase of the evolution of the syndrome. There is no description here of a discrete injury; and no record of a precedent injury recovering in an acceptable time after Jan first stopped work. 
It follows that this condition can not be established. 
The discrete injury is the result of either an accident or a biomechanical process at work. This is, of course, somewhat academic, if no discrete injury has been established. The insistence on a biomechanical process is due to mental trauma being excluded from cover under the ARCI Act 1992. The insistence on any gradual process being at work is due to the requirement that the ‘property or characteristic’ responsible for the injury is essentially restricted to the work environment. There is no history of a discrete accident - the original M46 does not provide any details of either an accident (incident) or local injury. Given her typing skills, Jan's original work process and workplace ergonomics are not plausible causes of any significant injury to her upper limbs; and, none has been demonstrated at any time. There are also obvious mechanical non-work factors that could explain injuries to her arms and there are several aspects of Jan's history that suggest a non-mechanical stress basis for her pain syndrome. Examples include the stress she was under to perform at work and the problems that she encountered as a result of the Telecom strike. 
Overall then her entitlement to cover under the ARCI Act 1992 has not been established as there is no description of any accident or discrete injury to substantiate a post-traumatic pain syndrome. Many factors suggest a primarily psychosocial basis for her problems. This is usual for such pain syndromes. ”
[27]
It was as a consequence of Professor Gorman's advice that CRM wrote to the appellant on 7 April 1998 advising her that it was the advice of Professor Gorman that there was no evidence of any discrete injury to substantiate a post-traumatic pain syndrome and therefore her condition did not qualify as an injury under section 4 of the Act. She was advised that the cover which had previously been granted was now revoked. 
[28]
The appellant sought a review of that decision and for the purposes of that review hearing CRM sought further advice from Professor Gorman and he was asked what was meant by the term chronic pain syndrome and he responded as follows: 
“By definition, a chronic pain syndrome is neither a mental nor a physical injury. Indeed, a chronic pain syndrome is best considered to be a state of altered nervous system physiology. Although changes are most marked in the central nervous system, there are also changes in peripheral nerves. These changes consist of cellular, biochemical and functional neuronal alterations. As a result, there is altered processing and generation of painful stimuli. Some chronic pain syndromes appear to be inherited on an autosomal dominant basis. Many factors have been shown to either aggravate or precipitate such chronic pain, but none of these factors have been shown to be causal. Certainly, the findings of changes in peripheral nerves does not in any way establish that the chronic pain syndrome was caused by some peripheral injurious event. 
As you are aware, I recently chaired a consensus meeting on chronic pain syndromes and particularly fibromyalgia. This meeting was sponsored by the ACC, but involved representation of all the appropriate specialist medical groups. Although the meeting has been described as resulting in a plethora of opinions, the reality was that there was substantial agreement on all issues. Indeed, only one attendee had a significant dissenting opinion on most issues, while two others disagreed with some of the consensus statements. Nevertheless, it is clear that there is substantial agreement amongst relevant specialists in this country about chronic pain syndromes. The nature of chronic pain syndromes is described above. I have enclosed a copy of the consensus report for your information. Although this is written specifically about fibromyalgia, these comments are essentially generic to chronic pain syndromes. ”
[29]
Dr Wigley examined the appellant a second time on 19 May 1998 at the request of her GP and for the purposes of his report, Dr Wigley had the report of Professor Gorman of 17 March 1998. Dr Wigley reported that the appellant's present situation had improved considerably from that when he last saw her. In response to the question of whether there was evidence of actual injury, Dr Wigley responded to Professor Gorman by enclosing a Summary of Research which had been carried out by himself and with reference to literature from others who had done similar research. He set out a series of points under the heading: SUMMARY OF CURRENTLY AVAILABLE EVIDENCE OF INJURY IN OVERUSE SYNDROME AND FIBROMYALGIA. 
“(1)
The pain which results from over work in an unsatisfactory work station which dictates an awkward posture is associated with demonstrable tenderness which can be measured with a Dolorimeter. Though the responses are partly a subjective reaction of the patient, this is largely a measurement made by the observer. 
(2)
There is a considerable body of evidence (Wigley, Darby & Brown) that sustained muscle contraction causes interruption to the circulation of muscle leading to production of chemicals such as Substance P which cause pain which in turn induces further muscle spasm and further pain. This continual pain stimulus leads to changes in the sensory nerve cells which go on with time to produce plastic changes in those nerve cells leading eventually to sustained pain after the initial cause is removed. There is evidence that there is actual damage to and even death of cells in this process 
(3)
Recent work from The University College, London has shown that sensation to vibration is decreased in people with OOS and that they also have an increased sensitivity to an increasing stimulus with vibration. This test clearly separates controls from cases so that this could be used as a diagnostic test. It has also been shown that these changes are temporarily increased following keyboard operation. This has not yet been tested in fibromyalgia. 
Though some will argued[sic] that this is not in fact an injury, I consider this strong evidence of a change in the function of the nerve conveying the vibration sense and that it is reasonable to interpret that as evidence of injury. 
(4)
In fibromyalgia work from a reputable source in Israel shows an increase in hyaluronic acid in the blood. This is clearly higher in fibromyalgia than in normals and in arthritis. This will provide another objective test and indeed a diagnostic routine test and a measure of severity. This I interpret as reflecting injury. This has not yet been tested in OOS. 
(5)
In fibromyalgia electro-microscopic examination of the collagen fibres show decreased cross linkage suggesting anatomical damage at an ultra microscopic level. This is not a test which can be done outside specialist Research Laboratories. 
(6)
A study from Cambridge University shows that skin temperature falls after typing in OOS subjects indicating a decrease in circulation. This does not occur in normal individuals. This indicates defective control of blood flow. 
Sharma JD, Smithe M, Hazelman B.L., Jenner J.R., Thermo Graphic Changes in Keyboard operators with chronic forearm pain. Forearm Pain. Brit.Med.J. 1997314: 118. 
(7)
Studies show that the blood flow in the central part of the brain is altered in fibromyalgia. This may be the result of rather than the cause of the disorder. This may also apply to occupational overuse syndrome, since fibromyalgia is often a more extensive and more advanced form of occupational overuse syndrome. 
(8)
Fibromyalgia can also occur without an occupational cause. It may follow injury. It has been theorised that it may follow stressful life events, though a recent detailed study from a very reputable unit has failed to confirm this hypothesis; (Russell et al.) That psychosocial problems can be the result of these pain syndromes is not disputed. 
There is controversial evidence that people who develop generalised pain syndromes including fibromyalgia, are so predisposed by some abnormality, such as psychological stress, a hereditary tendency, or that there are more unfavourable life events preceding the onset of symptoms. Even if this is true the ‘egg shell skull’ principle would still apply as affirmed by Justice Ongley in Saddleton vs ACC. 
Russell I.J., Russell S.J. et al Early Life Trauma and Confiding in Fibromyalgia Syndrome. A & R 1997 ABST 385. 
(9)
Thickening of the median nerve and decreased conduction in a high risk occupation, Cleaners has been demonstrated by NMR Imaging. 
At present these items are like pieces of a jigsaw puzzle. Research proceeds apace so the missing pieces should soon available to allow us to fit them together. 
To say now that ‘there is no physical injury, harm, damage or abnormality to tissue is not in my opinion sustainable’. ”
[30]
Dr Wigley's report and the summary were referred to Professor Gorman and he responded to Dr Wigley's Summary as follows: 
“1.
He agreed that tenderness as a subjective reaction. 
2.
Whilst he agrees with Mr Schug that there is damage to and death of nerve cells in chronic pain syndromes nevertheless such physical findings do not indicate the problem is either an injury or caused by an injury. 
3.
The finding that there are changes in vibration sense in peripheral nerves in people with chronic pain syndromes and people using keyboard work does not establish cause. Physical changes are found in all forms of disease, mental illness and injuries. To argue that physical changes in this context are indicative of injury alone is ridiculous. 
4.
The finding of an increase of hyaluronics acid in the blood of fibromyalgia suffers may well become a diagnostic test for people with some chronic pain syndromes but it cannot be interpreted as reflecting injury, such a proposition is ridiculous. 
5.
Changes in collagen fibres indicate that chronic pain syndromes are real and that there are changes in the nervous system. This is not contested. What is in dispute is whether these changes imply any form of cause. There is no data to establish cause. 
6.
Changes in skin temperature and blood flow are not indicated as being as a consequence of injury. 
7.
The comment that fibromyalgia is often a more extensive and a more advanced form of occupational overuse syndrome is not accepted. The term occupational overuse syndrome is a clinical term of limited utility. Indeed, fibromyalgia is frequently seen in non-occupational settings. 
8.
A review hearing took place in July 1998 at which all the medical reports were submitted and in her decision dated 24 August 1998 the reviewer noted that there was no disagreement that the appellant was suffering from chronic pain syndrome. She then gave greater weight to the reports from Professor Gorman and did not accept Dr Wigley's proposition that the presence of pain was sufficient evidence to establish physical injury. She held that there must be more objective evidence of injury than pain on its own. The primary decision to revoke cover was therefore confirmed. ”
[31]
For the purposes of appeal to this Court the appellant's advocate sought further advice from Dr Wigley, particularly in relation to the views expressed by Professor Gorman. Whilst a criticism of Professor Gorman's critique of his Summary is noted, it does not advance the issue and is therefore not further recorded in this decision. However Dr Wigley was asked certain questions and these questions and answers are as follows: 
(1)
Do you agree with Professor Gorman's diagnosis of chronic pain syndrome in this case? 
One has to agree with this diagnosis since it is merely a description of the plight of a person who has chronic pain. This is elaborated by Dr John Hancock in the case of Lowry v ARCIC
(2)
If so, do you consider that this has always been the condition with which she has suffered since she first consulted her GP? Would examination of her doctor's records assist in determining this? 
So long as she has had chronic pain the term ‘chronic pain syndrome’ applies. What this term does not do is to indicate cause. I cannot accept the use of that term means that there is no cause and that therefore one must ignore all evidence of causation. I prefer the term occupational overuse syndrome in view of the strong evidence in Mrs Peters' case that it was due to overuse in her occupation relating to the work station and work environment. I would accept the following title: occupationally induced chronic pain syndrome.” 
Dr Drummond, who saw her first and is therefore in a better position to describe the circumstances at that time and so causation, reported on 13 April 1998 ‘while it is not for me to discuss cause and effect, it seems obvious that the initiating and continuing cause of Mrs Peters symptoms was high pressure keyboard usage.’ 
Initially she had pain in the neck which is sometimes referred to as tension neck syndrome but this is no more than adding a further descriptor indicating the localisation of the chronic pain. 
(3)
This question I answer in the negative for reasons stated above. 
(4)
In Professor Gorman's earlier report he stated that it was possible, that at the time she first saw you, Mrs Peters would have satisfied the research classification for fibromyalgia syndrome. Do you agree? 
This is possible, but not having examined her at the onset I cannot comment, except to say that whether or not it was a localised condition, progressing to a generalised complaint of pain with more than 11 tender points is largely irrelevant to the legal issues, since it is generally accepted that local pain syndromes can merge into general pain syndromes and tender point counts may vary widely from day to day and week to week. 
(5)
The Review Officer refers to discounting a physiological basis to account for Mrs Peters' condition and your failure to identify a specific injury and establish a specific cause. How would you respond? 
Clearly the Review Officer does not accept physiological abnormalities as specific injury. My response is that if the work tasks and environment induces those physiological disorders, though these may not be demonstrable under a microscope or by eye that they still constitute injuries under the wording of the Act. If, as Professor Schug suggests, from animal experiment these physiological changes may progress to the stage of cell death, then that would constitute a physical injury, though arising via physiological and/or biochemical changes. It is for the Court to decide whether such changes constitutes an injury. We are not able to examine these tissues for obvious ethical reasons but that does not disprove injury. ”
[32]
The only other evidence introduced for the purposes of the appeal were some statistics provided by Telecom in answer to interrogatories delivered to the appellant as to the number of Telecom employees who had suffered OOS symptoms from keyboard use in the period 1 April 1996 to 31 December 1998, that number being advised as being 27 such employees. 
Submissions 
[33]
Mr Rowlett, advocate for the appellant, submitted as follows: 
The appellant is placed in considerable difficulty by the second respondent's agent CRM having accepted the diagnosis of “OOS” without obtaining any specialist opinion. 
The injury suffered by the appellant is one whereby there was wear and tear on the body, particularly the muscles in her arms, and it is that which is the injury. The reduction in grip strength is evidence of that as is the intermittent swelling reported by ADAPT. 
The decision of Judge Barber in Lukken (151/2000) established that a chronic pain syndrome can be regarded as physical injury. 
The report of Dr Wigley establishes the presence of the criteria necessary to satisfy section 7(a), (b) and (c) and it is to be noted that Dr Wigley inspected the work site. 
[34]
Mrs Grover, counsel for the first respondent, submitted as follows: 
The onus is on the appellant to establish that she is entitled to cover. 
The appellant must establish that she has suffered a personal injury in terms of section 4 of the Act. 
No specific physical injury has ever been diagnosed. OOS bilateral as diagnosed by Dr Drummond is not a diagnosis of a physical injury. 
The only diagnosis that has been made is that of chronic pain and chronic pain does not equate with physical injury. 
Even if a Court were to find that there had been physical injury there is no evidence that any property or characteristic of the appellant's work or environment caused or contributed to her condition. 
[35]
Mr Collins, counsel for the second respondent, submitted as follows: 
There is no evidence of injury, only evidence of pain. 
OOS is not an acceptable diagnosis in terms of section 7(1). 
There is no evidence that the appellant has suffered a post traumatic fibromyalgia/chronic pain syndrome. 
If the appellant's symptoms are a result of a chronic pain syndrome non-consequent on any trauma, then it cannot be said to have been caused by her workplace. 
Decision 
[36]
This appeal relates to the decision to revoke the appellant's cover for a gradual process injury which had been granted to her in June 1996. The power that was exercised by the second respondent's agent in April 1998 was that given by section 67A of the Act which gives power to revoke a decision when a decision has been made in error. In the context of this appeal the assertion is that the appellant should not have been granted cover because the symptoms she displayed were not those of any physical injury but rather her symptoms were simply that of regional pain. 
[37]
The term OOS is not a diagnosis of any specific injury but rather is an umbrella term to describe a type of condition which may or may not include a discrete physical injury. 
[38]
In the appellant's case at no stage did her GP, or subsequently Dr Wigley, identify any physical injury. Indeed in Dr Wigley's report of April 1997 he notes her history of the condition and that it was initially pain in her neck and then pain in her arms, more marked on the right. At all stages the only symptom has been pain and again this is the symptom which Dr Drummond referred to in the various medical certificates that he provided. Nowhere is there mentioned any strain injury and this Court must take the view that if indeed there had been such an injury it would have been referred to. 
[39]
It was the evidence of Professor Gorman that the appellant's chronic regional pain syndrome was not post-traumatic, he being unable to find any evidence of trauma and he notes that there is no description of a discrete injury and no record of a precedent injury recovering in an acceptable time after the appellant ceased work. 
[40]
The Court notes the plea made by Mr Rowlett about the seeming unfairness of the situation whereby the second respondent's agent accepted the diagnosis of bilateral OOS and granted cover and then nearly two years later it states that that diagnosis was not acceptable and that there was no evidence of injury which would give rise to an entitlement to cover. 
[41]
The Court has considerable sympathy with the appellant in these circumstances but must note that it was open to the appellant to bring evidence through her GP of any discrete injury that he may have noted at the time he gave his diagnosis of OOS bilateral. No such evidence has been forthcoming and again the Court must assume that it is not forthcoming because it just does not exist. If that is the case, then the appellant cannot really feel unfairly treated as it would seem that if the hard questions had been asked at the time the claim for cover was first lodged, the answers would have been such that cover would have been declined at that point and the appellant would not have had the benefit of some two years of entitlements under the Act that she did in fact enjoy. 
[42]
I accept the submissions of counsel for the first and second respondents that the primary basis for cover under the Act is that the claimant must have suffered personal injury. In the case of a claim for cover under section 7 that personal injury can be established as having occurred over time rather than by a single event which would constitute an accident. However the fact that the injury can be sustained over a period of time does not mean that anything less than a physical injury is acceptable. Pain is not evidence of injury and this Court notes that the causes of pain need not necessarily be as a consequence of physical injury. 
[43]
Mr Rowlett referred to the decision of His Honour Judge Barber in Lukken (151/2000) and sought to assert that decision as establishing that pain is sufficient to found the claim. It is true that in that decision His Honour noted that the claimant was suffering from a general pain condition but His Honour found on the facts that she had suffered a personal injury. He found at para 31 in his decision that there was clear evidence of physical injury including right arm and neck and spine sprain. Indeed His Honour was at pains to note that there required to be evidence of physical injury which was the cause of the pain before cover could be had. 
[44]
In those circumstances, I find that the decision of Lukken does not assist the appellant, as on the evidence that I have received in this appeal there has been no evidence of any physical injury propounded. In those circumstances the very foundation of an entitlement to cover is absent. 
[45]
In Dr Wigley's summary of currently available evidence of injury in overuse syndrome and fibromyalgia, the essence of his argument is that the change in the function of nerves can be interpreted as evidence of injury. As I note the response of Professor Gorman to Dr Wigley's theory he is of the view that physical changes in the context used by Dr Wigley cannot be indicative of injury. In summary then, I find as a matter of law that the particular physical characteristics that Dr Wigley says are present when someone has a chronic pain syndrome or fibromyalgia do not of themselves amount to a manifestation of a physical injury. 
[46]
For the foregoing reasons therefore, I find that the appellant cannot establish the necessary criteria required under section 7 of the Act to establish a claim for cover for a gradual process personal injury and therefore the decision of the second respondent to revoke that cover, as it did in April 1998, was correct. This appeal is dismissed. 

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