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Accident Compensation Cases

Warren v Accident Compensation Corporation (DC, 12/06/07)

Judgment Text

Judge M J Beattie
The issue in this appeal concerns the correctness of the decision of Work AON, as agent for the respondent, of 22 July 2005, whereby it revoked its earlier decision of 4 November 2004 to grant cover to the appellant for a gradual process injury arising from her employment. 
At the time that cover was granted to the appellant she was employed as a Technician at the Fonterra Dairy Company, Fonterra being an Accredited Employer under the Act and Work AON being its Manager of claims made under the Act. 
The background facts relevant to the issue in this appeal may be stated as follows: 
In 2004 the appellant was employed as a Laboratory Technician at the Fonterra Dairy Company, Edgecumbe. 
Part of her duties included the regular lifting of heavy boxes and sample trays. 
In April 2004 the appellant lodged a claim for cover for Tendonitis of her right wrist said to be attributable to her work tasks of lifting heavy boxes and sample trays. 
In a questionnaire completed on 3 May 2004, her GP, Dr Insull, provided an injury diagnosis of “Tendonitis, right wrist”
Dr Insull referred the appellant to Mr Andrew MacDiarmid, Orthopaedic Surgeon, for assessment. 
Mr McDiarmid noted x-rays of her wrist were unremarkable and suggested an MRI scan to further evaluate the problem. 
An MRI scan of the appellant's right wrist was taken on 30 June 2004, and the Radiologist's report gave as her conclusion “peripheral dorsal TFC tear”
Mr McDiarmid reviewed the appellant's condition and advised that she should be referred to Mr Richard Morbey, Orthopaedic Surgeon, for arthroscopic surgery to her wrist. 
Work AON approved the surgery by Mr Morbey and this surgery was carried out on 16 December 2004. 
Following that surgery Mr Morbey reported that there was no TFC tear as had been suspected. 
Work AON referred the file to Dr David Prestage, Occupational Medicine and Health Specialist, and his advice was that the appellant's condition would not qualify for cover under the Act. 
As a consequence of Dr Prestage's report, Work AON issued its decision revoking cover on 22 July 2005. 
The appellant continued to experience pain and discomfort and her GP referred her to Mr Tim Tasman-Jones, Hand and Upper Limb Surgeon. 
Mr Tasman-Jones reviewed her medical history and recommended a further MRI scan. 
An arthrogram and MRI scan were carried out on the appellant's right wrist on 30 March 2006. 
Mr Tasman-Jones reported that those investigations identified a small capsular disruption between the Pisotriquetrial articulation and a small perforation in the Lunotriquetrial ligament. 
The appellant sought a review of Work AON's decision and a Review Hearing took place on 6 July 2006 and all the medical reports to that date were presented to the Reviewer. 
In her decision of 20 July 2006 the Reviewer confirmed the decision to revoke cover, she stating inter alia as follows: 
“My decision is that there has been no identification of a discrete physical injury which can be attributed to the repetitive work tasks carried out by Ms Warren. She has not been able to establish her right to cover on a work related gradual process injury, and I therefore confirm Work AON's decision to revoke cover. ”
For the purposes of the appeal to this Court, further medical reports from Mr Tasman-Jones and Mr Morbey have been introduced. 
The respondent's position, as outlined by Mr Barnett in his submissions, is that Work AON was correct to revoke cover as the injury for which cover was granted was found, after further investigation, not to be so and that the only condition which the appellant had was that of a pain syndrome rather than any discrete physical injury. 
Mr Barnett further submitted that the further investigations carried out by Mr Tasman-Jones, which identified another type of injury which possibly could have been suffered by the appellant in the course of her employment, was a matter which the Court could not consider as a substitute injury but rather it would require the appellant to lodge a fresh claim for cover in respect of it. 
It was Ms Taylor's submission that the further investigation of the appellant's wrist had identified a discrete injury and she urged that cover be reinstated in respect of it. She submitted that cover was only revoked on the basis that there was no physical injury, whereas she submitted that subsequent medical evidence had identified that there was indeed a discrete injury for which cover should be given. 
I have set out the chronology of events when setting out the background facts, but for the purposes of my decision some of the medical evidence requires some expansion in the light of the submissions which the Court received from Counsel for the parties. 
Whilst it is the case that the appellant's GP diagnosed Tendonitis of the right wrist, it must be conceded that this diagnosis was one which would be required to be the subject of confirmation from more specific and precise investigation. The Court was not provided with any of the medical notes of Dr Insull, but it can be inferred from his letter of reference to Mr MacDiarmid that the appellant had presented to him with pain in her wrist localised over the distal right ulnar. I take it it was from those symptoms that he had diagnosed Tendonitis. 
Mr MacDiarmid's initial and provisional diagnosis was that he suspected that the appellant had a tear of her tri-radiate cartilage of the distal radial ulnar joint, more commonly described as a “TFC tear”
Mr MacDiarmid sought an MRI scan to confirm that diagnosis and the MRI scan carried out at Tauranga Hospital stated, inter alia - 
“There is a peripheral full thickness tear of the triangular fibrocartilage and dorsal radioulnar ligament. The radial attachment of the TFC is intact and no major abnormality is seen in the remainder of the TFCC. ”
It was consequent upon that MRI scan that Mr MacDiarmid considered that the appellant required arthroscopy surgery by way of treatment for that condition. He recommended Mr Morbey to be the surgeon for this procedure. 
Thus it was the case that on the basis of the MRI scan Mr MacDiarmid confirmed the TFC tear and reported as such to Work AON. 
Mr Morbey carried out arthroscopy surgery on 16 December 2004 and his surgical report stated inter alia as follows: 
“The findings were normal articular surface, normal scapholunate and lunotriquetral ligaments. The triangular fibro cartilage was intact with normal tension. The ulnar carpal ligament is intact. The mid carpal joint likewise the articular surfaces were normal and there was no evidence of lunotriquetral or scapholunate diastasis. A good view of the pisotriquetral joint was also achieved which was normal. 
There was no intra-articular cause found for her wrist pain at arthroscopy. ”
Work AON then referred the appellant's medical file to Dr David Prestage, Occupational Medicine Specialist, for assessment and he examined the appellant for the purpose. It was Dr Prestage's opinion that the lack of any objective evidence of a specific injury meant that the appellant's condition was that of a regional pain syndrome. He advised that it was feasible that her repetitive work tasks were the cause of this condition. 
Dr Prestage further advised that in the absence of a specific musculoskeletal injury the appellant's condition would not qualify for cover under the Act. 
It was following that advice that Work AON did issue its decision to revoke the cover earlier granted, that cover having been granted for a torn right TFC. 
In a report provided to the respondent's counsel and which was introduced for the purposes of this appeal, Mr Morbey provided an explanation as to how the first MRI scan had identified a TFC tear, whereas a second scan taken in March 2006 did not, but had diagnosed another type of injury. Mr Morbey's letter, I find, properly explains the position, his advice being as follows: 
“There are a number of things to note regarding Mrs Warren's case. Firstly the initial MRI scan was a plain scan without dye being injected into the joint. The repeat MRI scan in 2006 was an MRI arthrogram with dye injected into the joint. The diagnosis of a small capsular disruption adjacent to the pisotriquetral joint was made on the basis of dye leaking in this area. It is unlikely that this would have been detected on the initial scan. Secondly, the MR arthrogram showed a leak of dye when injected into the radiocarpal joint into the midcarpal joint. It can be difficult sometimes to identify where the leak occurred, especially if there is a small disruption of the soft tissues. The radiologist who reported the scan stated that it was probably through the lunotriquetral interval (i.e., ligament). A plain MRI scan is not terribly sensitive at detecting lunotriquetral ligament tears and even less so with a small tear, without complete disruption of the ligament. Therefore, again it is impossible to say whether this was or was not present on the initial plan MRI scan. 
Arthroscopy with a direct inspection of the joint is more sensitive at detecting lunotriquetral ligament injuries. At the time I performed the arthroscopy I did not detect a lunotriquetral ligament tear. It is possible that a small tear was missed at the time of arthroscopy but if there is indeed a significant disruption of the lunotriquetral ligament, it is likely that this has developed since the initial arthroscopy. However a small capsular disruption adjacent to the pisotriquetral joint would have been unlikely to have been diagnosed at the time of arthroscopy. ”
Mr Morbey gave this advice following being provided with the details of the second MRI scan, a scan which Mr Tasman-Jones had ordered, and from which his diagnosis of her injury was that of a “Small Capsular Disruption Pisotriquetrial Joint, Partial Lunotriquetrial Ligament Injury Right Wrist”
Mr Tasman-Jones recommended surgery which would involve arthroscopy and debridement of the Lunotriquetrial Ligament of the right wrist and excision of the Pisiform in the right wrist. 
From the foregoing, I find that the medical evidence establishes that the appellant did not in fact suffer a workplace injury of either Tendonitis of the right wrist or a TFC tear of the right wrist. In those circumstances, it must be the case that the decision of Work AON to grant cover for same was one made under mistake of fact. It is quite understandable that the decision was one made in error, as Work AON was simply relying on the medical advice it had received from Mr MacDiarmid that that was the diagnosed condition and it was Mr MacDiarmid's diagnosis based on an MRI scan which, in the absence of evidence to the contrary, he would be entitled to rely on. 
Having found that the decision to revoke cover was the correct one, it now requires the Court to consider whether as a matter of fact and law the injury which has been diagnosed is an injury for which cover can be substituted. 
As a point of jurisdiction, I find that the Court cannot substitute the injury now diagnosed, namely a capsular disruption between the Pisotriquetrial Ligament, and/or a perforation in the Lunotriquetrial Ligament, as those injuries are quite separate and distinct from the TFC tear. I find it would require the respondent or Fonterra's agent to determine whether the injuries now diagnosed were injuries that could arise as a consequence either of gradual process or by accident and had been suffered by the appellant in the workplace. 
The position is that Work AON accepted that the criteria for a gradual process injury, as contained in Section 30 of the Act, had been made out. In that regard it had the advice of the appellant's doctor and Mr MacDiarmid that the particular type of injury suffered was one that was likely to have been suffered by the appellant carrying out particular work tasks involving repetitive heavy lifting. 
At the present time the Court has no evidence as to whether the particular injury now diagnosed is one which would satisfy the criteria of Section 30 of the Act, and it is not open to the Court to make any primary decision regarding such an injury as qualifying for cover. 
Accordingly, whilst it is the case that the decision to revoke cover must be confirmed, the Court makes it clear that this decision cannot operate as an estoppal or a bar to the appellant seeking to obtain cover for the injury to her right wrist as identified by Mr Tasman-Jones and Mr Morbey following the MRI scan in March 2006. Any claim for cover should be treated solely on its own merits. 
Accordingly this appeal is dismissed subject to the rider which I have given. 

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