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Accident Compensation Cases

Walker v Fusion Insurance Services (DC, 23/11/04)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The Issue 
[1]
The issue, and this issue was agreed to by consent, was whether or not a discrete injury such as to attract cover for a gradual process injury, could be proved in this case. The reason is that the review hearing was argued and decided on the basis of a carpal tunnel injury, but since the hearing of the review the appellant relies upon a medical report of Dr Anderson, who has held that the nature of the discrete injury was that of tendonitis. It is accepted by the parties that the review decision in that respect is correct in the findings that carpal tunnel injury could not be proved, but for the sake of convenience and expense I have been asked to rule on the wider issue. 
Narrative of Facts 
[2]
The appellant was employed as a shelf filler at Pak'n Save from October 1997 onwards. She worked for 23½ hours per week. 
[3]
From October 1997 until July 1999, the appellant worked as a shelf filler in the health and beauty aisle. She had to stack and fill the shelves continuously, lifting up boxes with the products in them, stacking bottles of shampoos, hand lotions, deodorants, and so on. 
[4]
In July 1999, the appellant's work on the health and beauty aisle came to an end. She was moved to a grocery aisle where she had to lift and stack coffee bags, bottles of oil and baking products. The appellant said that this was heavier lifting than was the case in the health and beauty aisle. 
[5]
It was on 19 July 1999 that she moved to the grocery aisle, and it was then that the appellant first noticed pain and discomfort in her forearms. 
[6]
On 27 July 1999, she consulted her general practitioner, Dr Penny Mitchell, who diagnosed bilateral strain, and specifically mentioned tendonitis. Later that day, the appellant consulted her employer's doctor, Dr John Mills, who reported similar symptoms, including tenderness in both arms. Both these doctors made the suggestion that the problem might be carpal tunnel syndrome. 
[7]
The appellant returned to work, and was put on “light duties”, which involved cleaning and scrubbing. Unfortunately, these actions exacerbated her problem, and she was put off work in August 1999. 
[8]
In October 1995, the appellant and her husband started running a dairy together. From October 1997 onwards, during her employment with Pak'n Save, the appellant continued to work in the dairy for approximately ten hours per day. 
[9]
The appellant submits that the duties that she carried out in the dairy were light ones. Her husband or other people carried out the heavy lifting duties and heavy stacking, and the dairy carried much less stock and generally smaller items than what one would find in a supermarket. 
[10]
The appellant's duties at the dairy were more varied than that of a shelf filler, the latter being more repetitive. 
[11]
The appellant moved house in June 1999. The submission made by the appellant is that while heavy objects were lifted in this move, it would be difficult to say whether the appellant's injury arose from such lifting or not. 
[12]
The appellant did some of the light packing to prepare for the move, and she and her husband arranged for a furniture removal company to come in and pack the large items. This occurred on one single day in June 1999, and the appellant measures that against the every day shelf filling in the supermarket grocery aisle, which she said was onerous and repetitive. 
The Review Decision 
[13]
This matter was the subject of a review decision dated 31 July 2002. At that time Ms Walker was seeking cover for bilateral carpal tunnel syndrome, claimed to be the result of her part time work stocking shelves at Pak'n Save, Dunedin. The reviewer set out her reasons for dismissing Ms Walkers claim at page 7 of her decision: 
“The main issue in this case is the second limb of section 33, which requires Sandra to show, on the balance of probabilities, that the particular property or characteristic of her work caused or contributed to her personal injury and that the characteristic is not found to any material extent in her non-employment activities. The Act does not require evidence that the property or characteristic is a primary cause of the personal injury. 
In August 2000, Dr Ching expressed the opinion that Sandra's injury was not caused by the characteristic of her job. He opined: 
… I do not think stacking shelves for 23 1/2 hours per week from October 1997 to July 1999 would have caused bilateral carpal tunnel syndrome. This job did not involve hyperflexion or hyperextension of her wrists. 
Dr Ching concluded that Sandra had ‘intrinsic factors’ which caused her bilateral carpal tunnel syndrome and that her bilateral carpal tunnel syndrome was secondary to mild peripheral oedema. 
In relation to recommended treatment, Dr Ching suggested that Sandra try simple ways to alleviate her pain, for example wrist splints and steroid injections. These methods were recommended in place of surgery because of Sandra's predisposing conditions and knowing that surgery had not resolved her complaints on her right side. 
Mr Turner saw Sandra in February 2002. He agreed with Dr Ching that Sandra's injuries were unlikely to be caused by her work activities. He further commented that in his view, Sandra was probably suffering from a regional pain syndrome. 
Sandra brought no additional medical evidence to support her position that her work activities caused or contributed to her bilateral carpal tunnel syndrome. In the absence of evidence to the contrary, I must rely on the medical evidence of Dr Ching and Mr Turner. They share the opinion that Sandra's injury was not caused or contributed to by her work activities. Both point to underlying predisposition and oedema. 
I find, in reliance on the opinions of both Dr Ching and Mr Turner, that Sandra's bilateral carpal tunnel syndrome was not caused by her work. On that basis, I find Sandra has not satisfied the second limb of section 33. 
I, therefore, dismiss Sandra's application for review and uphold Fusion's decision of 5 March 2002. ”
[14]
Since that decision, Ms Walker has sought medical opinion from Mr Michael Anderson, specialist in occupational medicine. On the basis of his reports Ms Walker is now claiming cover for a regional pain syndrome involving hands, wrists and arms. The claim is brought on the basis of a pre-existing discrete injury, tendonitis, leading to the subsequent development of the pain syndrome or, alternatively, that the pain syndrome itself constitutes personal injury. 
The Legislation 
[15]
The relevant legislation is contained in s 33 of the 1998 Act: 
“33. Personal injury caused by work-related gradual process, disease, or infection 
(1)
Personal injury caused by a work-related gradual process, disease, or infection means personal injury- 
(a)
Suffered by an insured; and 
(b)
Caused by a gradual process, disease, or infection; and 
(c)
Caused in the circumstances described in subsection (2). 
(2)
The circumstances are- 
(a)
The insured- 
(i)
Performs an employment task that has a particular property or characteristic; or 
(ii)
Works in an environment that has a particular property or characteristic; and 
(b)
The particular property or characteristic- 
(i)
Causes, or contributes to personal injury; and 
(ii)
Is not found to any material extent in the non-employment activities or environment of the insured; and 
(iii)
May or may not be present throughout the whole of the insured's employment; and 
(c)
The risk of suffering the personal injury- 
(i)
Is significantly greater for persons who perform the employment task than for persons who do not perform it; or 
(ii)
Is significantly greater for persons who work in that environment than for persons who do not work in it. 
… ”
Legal Principles 
[16]
Recently the High Court has considered in Teen v ARCIC (High Court Wellington, CIV-2003-485-1478, 11 November 2003) the issue of a chronic pain syndrome, when there was no obvious physical injury. Wild J discussed the statutory concept of “personal injury” under the provisions of the 1992 legislation and the submissions of the appellant that incapacitating pain could in itself without evidence of a direct physical injury constitute a personal injury. At paragraphs [35] to [37] he said: 
“Judge Beattie considered the s 4 definition. He said: 
[13]
It is clear from that definition that physical injury is clearly distinguished as a separate category of injury from mental injury. Physical in this context I find to be in accordance with the dictionary meaning ‘of or relating to the body as distinguished from the mind or spirit’. Using the definition of physical injury in line with the natural and ordinary meaning it must therefore involve physical damage or hurt, that is bodily harm or damage. 
[36]
Mr Corkill pointed out that, a few days later in the related case Jones v ACC and Telecom (3 September 2002, District Court, Wellington 242/02) Judge Beattie repeated this definition adding: 
‘[16]
Mr Corkill also referred to the decision of this Court in Williams (80/01), in which I stated: 
“In this context ‘injury’ means damage or hurt and ‘physical’ means of or relating to the body, perceptible to the senses, apparent. ””
As I found in Williams those dictionary definitions are applicable to the meaning of those two words for the purposes of the Accident Compensation legislation as it relates to compensation for personal injury. ’”
[37]
Mr Miller's reference to Hume Steel Ltd v Peart is not greatly helpful. That case involved the meaning of ‘injury’ in two sections of the Workers Compensation Act 1926-1946 of New South Wales, whereas Judge Beattie was concerned with the interpretation of definitions and provisions in the 1992 Act. Similarly, ACC v E, also invoked by Mr Miller, was concerned with the definition of “personal injury by accident” in the Accident Compensation Act 1982. The Court of Appeal held that a proper construction of that definition required inclusion of the mental consequences of an accident within the term ‘personal injury by accident’, whether or not there was also physical injury. The definition of “personal injury” in s 4 of the 1992 Act is materially different. Indeed, it appears to be expressly designed to avoid the outcome in ACC v E. ”
[17]
The case of Teen (supra) concerned a key board operator, who developed “OOS”. There was no evidence of physical injury, apart from a regional pain syndrome. A requirement was that the claimant must have suffered a “personal injury”. At the District Court appeal Judge Beattie found: 
“In the final analysis therefore I find that the appellant did not suffer a personal injury in the course of her employment with Telecom. That she suffered harm during the time that she was so employed there is controvertible but the fact of the matter is that the Act limits compensability to a physical injury which can be established as having been caused by a particular property or characteristic of a work task performed by the person. In the present case not only do I find that there is no evidence of personal injury within the meaning of the Act, but also there is no evidence to suggest that the appellant's condition was caused by any property or characteristic of her employment tasks. ”
[18]
Judge Beattie concluded that the appellant was not entitled to cover under the 1992 Act as the condition that she had presented did not have the basic requirement of being a personal injury, that is a physical injury. The submission of the appellant was that incapacitating pain suffered by the claimant could come within the definition of “injury” as including hurt or pain, or of “pain” as “bodily suffering; a distressing sensation or soreness”. After an analysis of the medical evidence Judge Beattie could not find any evidence even suggestive of a physical injury. Wild J on appeal upheld that analysis and approach. 
[19]
Further the cases of Teen v ACC (Beattie DCJ, 244/2002) and Jones v ACC (Beattie DCJ 242/2002) illustrate the requirement for the need to prove a physical injury, which is the substantial cause of the present symptoms: that is the injury still persists and the symptoms attributed it can be objectively measured as resulting from it. This is in accord with the statutory framework providing a filter to liability as being generally the requirement of a physical injury, which provides an objective reference so that the injury may readily be audited or monitored over the course of the years. Without some significant external signpost this process would be fraught with difficulty. 
[20]
In a recent High Court decision Cochrane (CIV 2003—485-2099 Wellington 2 June 2004), Justice Miller said, while confronting a causation issue under the 1982 Act. 
“The question ought to have been whether he could show that his incapacity was caused in some degree by the injury for which he was granted cover. Had he been able to do so, it could not have been said that his condition was caused exclusively by factors such as age or disease. An appellant may not establish causation simply by showing that the injury triggered an underlying condition which was already vulnerable (‘the egg shell skull principle’) or that the injury accelerated a condition that would have been suffered anyway (‘the acceleration principle’); McDonald [2002] NZAR 970. The question is simply whether the necessary causal nexus continues to exist between the injury and the condition … In some cases an injury in a person who suffers from degeneration will produce symptoms in circumstances where that person may otherwise have remained asymptomatic for ever. In such a case it is the injury, rather than the degeneration, that is the cause of the incapacity. 
The onus is on the appellant to show the necessary degree of causation on the balance of probabilities, but the court has cautioned against placing too much emphasis on the onus; Wakenshaw [2003] NZAR 590. The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between injury and incapacity exists. This point is important in a case such as the present, because evidence shows that it is in the nature of back injuries of this kind that medical evidence frequently cannot establish clear cause and effect. For that reason, I consider that the District Court was wrong to dismiss the appellant's claim by pointing to the onus of proof and the inconclusive nature of the clinical evidence. At the end of the day, causation is a question for the Court. Temporal considerations may enter into it, as may questions of credibility that cannot be delegated to the experts. ”
[21]
The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between the injury and the incapacity exists. In keeping with the dictum of Miller J is the observation of Lord Brandon in Rhesa Shipping Co S.A v Edmunds [1985] 2 All ER 712, 718: 
“No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. ”
The Medical Reports 
[22]
Fusion relies on reports from Mr Fitzpatrick, orthopaedic surgeon, Dr Ching, rheumatologist, Dr Short, Fusion's in house medical advisor, and Dr Turner, specialist in occupational medicine. The appellant relies upon the reports of Dr Anderson, who has diagnosed tendonitis and the initial diagnosis of the general practitioners. 
The Appellant's Submissions Concerning the Medical Reports 
[23]
The appellant's comments on the medical reports are as follows: 
[a]
Mr Fitzpatrick: The appellant saw Mr Fitzpatrick, an orthopaedic surgeon, on 1 September 1999. He directed that she undergo a nerve conduction tests, and in November 1999 she had an operation to release her right hand carpal tunnel. The appellant submits unfortunately two negative events occurred over the next few months: 
(a)
The appellant's left hand started developing an apparent carpal tunnel problem; and 
The carpal tunnel and pain symptoms on the right hand side returned much to the appellant's distress. 
The appellant submits that it was apparent then that there was a problem with the diagnosis of carpal tunnel in the first place. The appellant's pain should not have returned following the operation for release of the right hand carpal tunnel, if that was the problem. 
(b)
Dr Ching's report: The appellant saw Dr Daniel Ching in August 2000, which was a year after her acute symptoms developed. In his report dated 22 August 2000, Dr Ching accepted the diagnosis of bilateral carpal tunnel. He was of the view that this was an accurate diagnosis from the lesions shown up by the nerve conduction test and there was an issue with fluid retention. However, Dr Ching considered that the condition did not arise from the appellant's work environment whether from Pak'n Save or the dairy. He concluded that the syndrome had been caused by the oedema. Dr Ching thought that the carpal tunnel diagnosis arose from factors within the appellant's body, and had nothing to do with any work tasks. 
(c)
Dr Turner's first report of 25 February 2002: The appellant was referred by Fusion to Dr Turner in March 2002. Dr Turner in his report dated 25 February 2002, gave a combined diagnosis for the appellant's condition: fluid retention, regional pain syndrome and osteoarthritis. Dr Turner did not appear altogether comfortable with the carpal tunnel syndrome diagnosis, but he did not reject it out of hand. Dr Turner thought the most appropriate diagnosis was a regional pain syndrome, and he concluded that because the appellant's symptoms had continued beyond the carpal tunnel release operation, her pain did not arise from the carpal tunnel syndrome. He thought the fluid retention syndrome had an important part to play. 
Dr Turner could not see a causal connection between her symptoms and her work tasks, noting that there was no excess of pinch or power grasping required in her work, which would have led to the carpal tunnel syndrome 
(d)
Dr Anderson's first report May 2004: The appellant obtained a report from Dr Anderson in May 2004. In some areas, he was in direct agreement with Drs Ching and Turner, in that he agreed: 
(a)
With both of them that the carpal tunnel syndrome did not accord with the type of work the appellant was doing; 
(b)
With Dr Turner that the diagnosis of a regional pain syndrome was appropriate. 
Dr Anderson concluded the carpal tunnel syndrome was a “red herring” that had to be put to one side. The issue was what had caused the appellant's regional pain syndrome. Dr Anderson noted the following: 
(a)
The appellant moved to a different aisle with more onerous work shortly before the onset of the pain; 
(b)
The only difference in her shelf stacking activities was the heaviness of the products in the grocery aisle; 
(c)
The appellant's general practitioner diagnosed tendonitis, which is inflammation of the tendons and sprain/strain of the forearm muscles on 27 July 1999; and 
(d)
Later that day the employer's doctor made similar findings, noting tenderness in particular. 
[24]
Dr Anderson concluded from the above that the main problem was the onset of pain and particularly the involvement of her forearm muscles. He noted that both doctors who saw the appellant at the time described tendonitis. In his view, this inflammation had to arise from injury. The light duties the appellant was assigned to carry out simply exacerbated the problem. Dr Anderson noted the phenomenon where pain starts peripherally but then moves centrally and is maintained in the central nervous system. 
[25]
Dr Anderson placed weight on the temporal connection between the appellant's transfer to the grocery aisle and lifting of heavy objects, and the onset of the problem. 
[26]
Dr Anderson, accordingly, saw a direct link between the appellant's work activities, the onset of her pain and the development of her regional pain syndrome. 
[e]
Dr Turner's second report 28 June 2004: Dr Turner disagreed with Dr Anderson. He asserted that the pain syndrome was not developed from a physical injury, and the fact that it was from a physical injury could not be supported by the findings. Dr Anderson had not demonstrated a direct association with specific properties and characteristics contained in the work environment, or any temporal relationship between a change of work patterns and the onset of the pain symptoms. Dr Anderson had not demonstrated that the risk of the complaint was significantly greater for people doing the appellant's type of work than for others. 
Dr Turner said that the signs did not point to a diagnosis of tendonitis but rather they reflected myofascial pain. The cigarette smoking may have been a predisposing factor to the regional pain syndrome. The fact that the appellant's condition deteriorated after her work at the supermarket pointed to a non-occupational aetiology, the cause of the appellant's regional pain syndrome was unknown, but it was not her work. 
The appellant submits there are problems with Dr Turner's report. The date of the onset of the problem started on 19 July 1998, and the appellant sought treatment some seven months later on 27 February 1999. The appellant says these dates are incorrect. The appellant initiated her symptoms on 19 July 1999, and she consulted a doctor only eight days later, on 27 July 1999. 
In addition, the appellant says that Dr Turner mentions the ten hours work per day at the dairy, but he does not discuss at length the type of work that she did there. The appellant made it clear that the work in the dairy was of a different order than the supermarket. 
The appellant submits there is confusion in Dr Turner's report about whether the work in the grocery aisle was heavier or more difficult than that in the health and beauty aisle. 
The appellant submits that in her brief of evidence she did not directly compare the lifting in one aisle with the other, and did not say anything to the contrary. 
Dr Anderson, in discussion with the appellant, established that the lifting in the grocery aisle was heavier than that experienced previously. 
[f]
Dr Anderson's second report — 1 October 2004: Dr Anderson in this report points out some of the factual mistakes made by Dr Turner in his second report, and he says further: 
(a)
The two general practitioners diagnosed tendonitis when the appellant presented with her acute problem in July 1999; 
(b)
A regional pain syndrome which is a form of chronic pain developed from the acute problem; 
(c)
The acute symptoms would not have been present when the appellant was assessed by Drs Ching and Turner; 
(d)
It was necessary to pay particular attention to the history given by the appellant to the general practitioners and the opinions they gave; 
(e)
It appears to be established that when a person complains of painful muscles there is muscle damage; 
(f)
Smoking may play a part in worsening chronic pain but it could not have been a factor in causing the onset of the appellant's acute pain in the first place; 
(g)
It is perfectly plausible that the appellant's pain may have increased with time after she stopped work rather than decreased; 
(h)
The Bradford Hill criteria used to establish causation — temporal relationship, specificity, biological plausibility and coherence was satisfied in this case. 
(i)
The requirements of s 30 of the Act had been met. 
The Respondent's Submissions Concerning the Medical Reports 
[27]
Dr Mitchell, GP, completed an Accident Insurance Treatment Certificate (“AITC”) dated 27 July 1999. It originally lists a Read Code of “S51”, which is “forearm strain”. This has later been crossed out and a Code of “N21z2” inserted, which is “Tendonitis, upper or lower limb”. Under diagnosis it states: 
“A week of heavy lifting — pain both arms — bilateral strain forearms, +- carpal tunnel. ”
[28]
The date of injury is stated to be 7.00 a.m. on 26 July 1999. Ms Walker was declared unfit to return to work for two days, with a further two weeks on light duties (no heavy lifting). 
[29]
A second AITC was completed on 2 August 2004 by Dr Mills, the employer's GP. This provides a diagnosis of: 
“Gradual process tendonitis both forearm Bilateral Carpal Tunnels ”
[30]
It was recorded that two days of alternative duties had “stirred up her arms again”. Ms Walker was declared unfit for a further week. Subsequently Ms Walker was repeatedly declared fully unfit and has not returned to work since. 
[31]
In September 1999 Ms Walker was seen by Mr C Fitzpatrick, orthopaedic surgeon. Mr Fitzpatrick did not make a diagnosis of tendonitis. Rather he diagnosed bilateral carpal tunnel syndrome, right worse than the left. Nerve conduction tests later supported his diagnosis of bilateral carpal tunnel. On 3 November 1999 Mr Fitzpatrick conducted decompression surgery on the right wrist. 
[32]
Ms Walker was slow to recover following the surgery. In August 2000 Fusion referred her to Dr Ching, rheumatologist. In a report dated 22 August 2000 Dr Ching diagnosed nodal osteoarthritis in the first CMC and MCP joint in both thumbs, as well as fluid retention syndrome. He considered the cause of her carpal tunnel syndrome to be secondary to oedema, but at that stage did not know the cause of the oedema. However, he did not believe that the carpal tunnel was caused by stacking shelves at Pak'n Save, or her job running the dairy. He noted that there had been a deterioration in the symptoms of her left hand since she had stopped working and she had also started to notice symptoms again in the right wrist. He did not recommend further surgery. 
[33]
In February 2002 Fusion referred Ms Walker to Dr W E D Turner, specialist in occupational Medicine. Dr Turner examined Ms Walker on 19 February and completed a report dated 25 February 2002. Dr Turner noted that it was a complicated case. He believed that the diffuse nature of her symptoms pointed towards a regional pain syndrome as the most appropriate diagnosis. He agreed with Dr Ching that Ms Walker most likely had a fluid retention syndrome and osteoarthritis in her thumbs. As far as causation was concerned, he agreed with Dr Ching that her work as a shelf filler was an unlikely cause of bilateral occupational carpal tunnel syndrome. He confirmed regional pain syndrome as the predominant diagnosis and noted that the fact of her symptoms worsening, despite being out of the workforce, pointed towards a non-occupational diagnosis as the cause of her ongoing condition. Like Dr Ching he was opposed to further surgery and recommended instead treating her idiopathic fluid retention syndrome, as well as cessation of smoking and commencing a strength-reconditioning programme to her upper limbs. It was on the basis of Dr Turner's report that Fusion issued its decision letter dated 5 March 2002 suspending cover. 
The Report of Dr Anderson 
[34]
There was then a delay of almost two years before Ms Walker obtained her own medical report from Dr Michael Anderson. Dr Anderson stated that the earlier diagnoses of carpal tunnel syndrome was “a red herring” and agreed with Dr Turner that the current diagnosis was of a regional pain syndrome. Dr Anderson considered that the observations of the two GP's who had initially seen Ms Walker in July 1999 were sufficient to support a diagnosis of tendonitis. He records: 
“Returning to the history of the onset of the problem which has been documented fully before, we have the following: 
Sandra had been working at Pac'n'Save for 21 months without any problems. 
Due to ‘friction’ with a fellow worker she moved to a different work area. 
The work was similar, i.e. stacking shelves, but the only difference is that the products being stacked were heavier. 
Within a short time of changing to this activity there is a sudden onset of pain in both hands and forearms. 
Sandra reported promptly to her doctor who made the diagnosis based on her findings at that time, of tendonitis (inflammation of the tendons) and sprain-strain of the forearm muscles. 
Later that day Sandra visited ‘the Works Doctor’ who recorded similar findings, particularly noting that there was tenderness over the lateral and medial humeral epicondyle, (i.e. the site of attachment of her tendons for her forearm muscles.) …  
In my opinion there is a clear temporal relationship between the change in the work environment where Sandra had been for 21 months without a problem to a different area that involved lifting heavier products and the onset of the pain …  
Thus, in my opinion, Sandra's Regional Pain Syndrome is a direct result of the injuries to her tendons/muscles that she incurred while working at Pac'n'Save i.e. the Regional Pain Syndrome, that is stopping her from working, and is directly related to her work. ”
The Reply of Dr Turner 
[35]
Fusion then wrote to Dr Turner by letter dated 24 June 2004, seeking an update to his earlier report of 25 May 2002. Dr Turner replied by letter dated 28 June 2004. With respect to Dr Anderson's diagnosis of tendonitis, Dr Turner stated: 
“Dr Anderson's contention that her work had caused tendonitis is in my opinion tantamount to diagnosis by imagination. 
Essentially he reports the findings of the general practitioner, Dr Penny Mitchell … and that of Dr John Mills … as indicative of tendonitis. More specifically Dr Anderson writes ‘so both doctors who saw her that day while the problem was acute commented on signs and symptoms that would be consistent with sprain of muscles and tendonitis’. It should be pointed out that the reporting of tendonitis where this diagnosis does not exist is an all too common occurrence. There are reports in the literature that this is fashionable diagnosis seldom supported by objective evidence, and the lack of evidence generally means that it is incorrect …  
The signs are not consistent with a diagnosis of tendonitis rather they are reflective of myofascial pain syndrome, which I maintain was also the diagnosis right from the very outset. The fact of the matter is that the examinations undertaken by Dr Mitchell and Dr Mills were not consistent with tendonitis. Most specialist occupational physicians working in front-line practices particularly in industries where tendonitis is common, for example the freezing industry, see signs of inflammation such as acute swelling associated with heat, localised erythema and crepitus on movement. Furthermore with appropriate interventions such as anti-inflammatory medication and avoidance or modification of the work activity, there is almost always a significant improvement in the condition. This clearly did not happen with Ms Walker testifying to the non-inflammatory and non-occupational nature of her condition. 
Her diagnosis from the outset therefore in my opinion is beyond any real doubt. She had a regional myofascial pain syndrome at the time that she was examined by Dr Mitchell and Dr Mills and there was no evidence that the signs and symptoms presenting to these doctors were consistent with tendonitis or muscle sprain. ”
[36]
With respect to the second criteria, namely Ms Walker's out of work activities, Dr Turner comments: 
“This to me reflects on the quality of Dr Anderson's report in which he would appear to select information for purposes unknown to me. One must assume that as this is an adversarial contest his opinion would naturally reflect the wishes of the claimant. There is absolutely no doubt in my mind that these additional hours that she was undertaking would have an overall influence upon her regional myofascial pain disorder but only in the sense that they would cause symptomatic exacerbation rather than any primary injurious lesion. The same observations applied to her dairy work as they do to her supermarket activity. Neither of these occupations appears to have caused signs or symptoms consistent with tendonitis or acute muscle sprain, but certainly there was myofascial dysfunction no doubt arising through activation of the trigger points described by Dr Anderson on page 5 of his report. I too found signs of trigger point activation without any evidence of localised focal muscle injury at these sites nor were there signs or symptoms consistent with tendonitis. Dr Bill Short, medical advisor, has observed that Dr Ching, rheumatologist, who examined her in August 2000 at a time when she was describing swelling of her fingers and wrist as being unrelated to any inflammatory process that was primarily a function of fluid retention syndrome. Dr Ching did not find any evidence of palpable crepitus in the tendon sheaths that are the hallmark features of tendonitis and did not make a diagnosis of physical injury as the cause of her symptoms. How on earth Dr Anderson is able to do this in May 2004 in the face of evidence to the contrary is difficult to ascertain on evidence based grounds. ”

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