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Accident Compensation Cases

Hunter v Accident Compensation Corporation (DC, 13/12/07)

Judgment Text

Judge J. Cadenhead
The Course of the Hearing 
The employer attended the hearing and was represented by M. Walker, but was content to abide the decision of the Court. 
This appeal is against a review decision dated 30 October 2006, which dismissed the appellant's application for review and found that the New Zealand police were entitled to revoke cover under section 65 (2) of the Injury Prevention, Rehabilitation and Compensation Act 2001 on the basis that the appellant's claim did not meet the requirements of section 30 of the legislation. 
Narrative of Facts 
The appellant has worked for the police as a full-time telephonist for some 22 years. 
Before October 2005, she worked at a workstation, which involved two computers sitting close together in front of her. One computer was used to divert callers to the extent they required. The other computer was used to access roster information, so the appellant could check whether the requested person was at work that day. 
In October 2005 the appellant moved into a new office, which entailed a new workstation. Although, at that stage the appellant's role changed to include reception work, the vast majority of the work continued to be telephone work. 
The appellant's new workstation includes a shallow desk, which led to the telephone computer being placed to the right of the appellant, and the roster computer being placed to the left. This required the appellant to reach out with her right arm to operate the telephone computer, while taking phone calls. The new desk was significantly higher than the previous one. 
After a few weeks at this new workstation, the appellant began to experience pain in her right shoulder. This gradually became worse, with pain radiating down the right arm into her hand. An ultrasound scan of the right shoulder taken on 12 January 2006 revealed a subacromial bursitis with bunching in abduction. 
On 24 January 2006 the appellant's general practitioner lodged a claim on her behalf. The diagnosis given was subacromial impingement. 
The appellant was placed off work. She remained off work for some five weeks. She then returned on reduced hours. On returning to work the appellant did as much as she could with her left arm. Subsequently, she began experiencing symptoms in both arms. 
The police had a workplace assessment conducted by Allison McNamara. In her report of 13 February 2006 it was stated: 
the layout of the appellant's workstation required frequent reaching with the right arm. This arose as a result of keying been completed with the right-hand as the left-hand was holding the receiver; 
while the volume of phone calls could vary throughout the day, at the time of the assessment, the calls being received were continuous. The receiving of these phone calls were considered to be a priority; 
Ms McNamara was concerned at the fact that the appellant was not sitting directly in front of either computer, as this resulted in both twisting and reaching. The report stated that the configuration of the workplace needed to be addressed. 
In a letter dated 4 September 2007 the occupational therapist noted her original remarks that there was concern about the design of the workstation, which resulted in Mrs Hunter not sitting directly in front of either the computer or the telephone system. She said the design of the workstation had now been addressed. 
Ms McNamara said that when the appellant reached to answer the telephone it was necessary to abduct her right shoulder to a maximum of 60°. This was a repetitive movement. When assisting people at the counter, the appellant was required to obtain documents and this involves forward flexion of the shoulder joint to 50°. This was not a repetitive action. 
In the view of Ms McNamara the appellant did not engage in any non-work activities that involved the same degree of repetitive/sustained reaching. Ms McNamara said: 
“I am still of the opinion that the appellant would have been required to reach at a below shoulder level. In particular, whether the appellant would have been required to flex and abduct her arms away from her body by 60° or more while at work. It is necessary to comment that the original design of the workstation did place Mrs Hunter at risk and this was recognized with changes being made to the workstation. ”
In the course of investigating the claim the respondent sent the appellant to Dr Hartshorn, specialist occupational physician. Dr Hartshorn, in a report dated 23 March 2006, thought that the occupational factors that had to be shown to be causative of the type of injury exhibited by the appellant included sustained repetitive or forceful work activity with the shoulder in the position of flexion or abduction of 60% or more. Dr Hartshorn, also, states that the evidence is more convincing if there is forceful overhead activity. 
Dr Hartshorn states that the subacromial bursitis can be associated with degenerative change in the AC joint, with spurring of the acromion, or with a degenerative and dysfunctional rotator cuff apparatus. Dr Hartshorn felt that the issue of the degenerative change would be clarified by review of the radiological investigation results. 
Because of Dr Hartshorn's opinion that the lack of overhead reaching was involved in the appellant's job, Dr Hartshorn gave an initial opinion that her work activities were not causative of the injury. He indicated that he would need to see the ultrasound results before he could confirm this opinion. 
Dr Hartshorn was duly provided with the ultrasound results and issued a further report on 7 April 2006. Dr Hartshorn confirmed his initial conclusion, and contended that the appellant's job did not involve flexion or abduction of the arms away from her body by 60%. Dr Hartshorn did not state that the ultrasound results showed any degenerative changes, which might be responsible for the appellant's bursitis. 
The appellant was seen by Mr Geoff Anderson, orthopaedic surgeon, on 13 June 2006. In his report of the same day Mr Anderson stated that the appellant's problem appeared to be more in keeping with “frozen shoulder”, rather than a rotator cuff problem. Mr Anderson stated that the appellant's scans showed evidence of inflammation around the bursar and that this was probably the primary problem and that she had now developed secondary frozen shoulders. 
Mr Anderson recorded that the appellant's right shoulder had improved considerably following a steroid injection, but the left shoulder had not. Mr Anderson repeated the injection on the left side, and recommended physiotherapy. 
Mr Anderson confirmed that the appellant would be unfit for work for six weeks. 
The respondent issued two decisions on 22 June 2006. The first one stated that the appellant's claim had been deemed accepted because the respondent had failed to make a decision within the statutory timeframe. The second decision revoked the deemed decision on the grounds that the appellant's work had not caused the physical injury. 
The appellant applied for a review of these decisions. 
Dr Hartshorn issued a further report dated 24th of July 2006. He referred to Mr Anderson's clinical findings. Dr Hartshorn stated that the right frozen shoulder could be secondary to the initial bursitis. Dr Hartshorn then went on to reiterate his view that this type of condition is caused by repetitive or sustained flexion or abduction movements of the upper limb by 60° or more away from the body, and that in his opinion the appellant's workplace assessment did not describe such a posture on a sustained or repetitive basis. On this basis, Dr Hartshorn stated that there was not a characteristic within the work environment that was likely to increase the appellant's risk of developing that type of injury over and above that of the general population. 
Mr Anderson provided a further report on 25 July 2006. There had been improvement in the appellant's left shoulder. The right shoulder showed good rotation movement. He said: 
“She tells me that an assessor from CRM feels her problem is not work-related but I have to say I would query that judgement. She has worked in the same office many years without problems and her shoulder pain started as soon as her workstation was changed. The description she has given me of her workplace, combined with the timing of the onset of symptoms, make it extremely likely in my view that her shoulder pains had been precipitated by posture at the new workstation. ”
In a report dated 5 September 2006, Mr Anderson stated that the appellant was getting pain in her right shoulder again, with abduction been limited in that shoulder. He gave her a further injection of cortisone in the right shoulder. Mr Anderson advised that the height of the appellant's workstation would need to be adjusted before she returned to work, or her shoulder problem would simply recur. 
The review hearing took place on 17 October 2006 and the reviewer issued his decision on 30 October 2006. The reviewer held that the respondent was able to revoke the deemed decision. Furthermore, the reviewer found that the three stage gradual process test was not fulfilled in this case. In coming to this conclusion the reviewer held that the third stage of the gradual process causation test requires that the risk of the injury is significantly greater for a person performing that particular task in that environment than for those who do not. He said that this was not to be looked at from the perspective of the particular employment, but rather from the perspective of the particular employment task which has the offending property or characteristic relative to the general community. The reviewer thought that Dr Hartshorn's opinion was the only one that significantly commented on that issue of causation. He thought that Mr Anderson did not comment on this aspect of the matter. 
The Review Hearing 
I set out hereunder the conclusions of the reviewer: 
“Relevant Law 
Section 65 of the Act reads: 
If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error. 
The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading. 
A revision may- 
amend the original decision; or 
revoke the original decision and substitute a new decision. 
Every amendment to a decision, and every substituted decision, is is a fresh a fresh decision. 
Section 30 contains a three-part inclusive test that must be met for a claim to receive cover. The first test is that the employment task or environment has a particular property or characteristic which has caused or contributed to the cause of the injury. The second test requires a claim to be declined cover where the property or characteristic causing the injury is present to a material extent outside the workplace. 
Material extent is taken to mean capable of causing or contributing to the injury. The third test requires that the risk of suffering the injury is significantly greater for a person performing that particular task in that environment than for those that don't. This approach was endorsed in the High Court case of Knox. In the recent District Court case of Fullam (301/02) it was found that this was not to be looked at from the perspective of the particular employment but rather from the perspective of the particular employment task which has the offending property or characteristic relative to the general community. 
The District Court has considered section 7 (1992 Act equivalent) in many instances. In Click-Clack (61/95) it was found that the Corporation has an obligation to properly investigate a claim. This will usually require obtaining specialist comment. 
Revoked Decision 
NZ Police, quite correctly, issued a decision to Mrs Hunter advising that her claim had been deemed accepted. The deeming was by operation of Section 58. Clearly Section 65(2) allows NZ Police to then revoke that decision. However, it must not recover any payments made up to the date of that decision. 
Cover under Section 30 
The onus lies with Mrs Hunter to prove that she has an acceptable claim under the Act. As she is claiming for a gradually occurring condition she must prove that her claim meets the requirements of Section 30. 
As noted in Click-Clack, NZ Police has an obligation to properly investigate any claim. Normally that involves obtaining specialist medical advice. In this case that advice was obtained from Dr Hartshorn. His is the only medical opinion that comments on the issue of causation. Mr Anderson does not comment on this aspect. Dr Hartshorn's opinion is that Mrs Hunter's work tasks or environment do not cause the condition that she has in her shoulder. It may be that the change in workplace aggravated the condition. However, that does not satisfy the test under Section 30 that work caused the condition. On this basis I find that her claim for cover must fail. ”
The Medical Reports of Dr Hartshorn 
Dr Hartshorn reported concerning the appellant on 23 March 2006, 7 April 2006, 24 July 2006, and 19 September 2007. It is clear after reading his medical reports that his diagnosis to a certain extent was based upon the proposition that the shoulder postures at the relevant times of flexion or abduction were not in excess of 60°. I set out his opinion dated 19 September 2007, which summarises his contentions: 
Re: Jill HUNTER 
Claim No. FG97720 
Thank you for your letter dated 12 September 2007. Thank you for enclosing the following further documentation. 
Review summary dated 17/10/2006 
Medical report Dr Wigley dated 2/4/2007 
Worksite Assessment Report dated 13/2/2006 
Occupation Therapy Letter dated 4/9/2007 
I have reviewed the enclosed information. An interesting point in the history is the development of left shoulder symptoms during 2006. An ultrasound scan in April 2006 identified evidence of subacromial/subdeltoid bursitis also on the left side. This was a very similar presentation to that assessed clinically by myself relating to the right shoulder. 
Dr Wigley's conclusion is that the subacromial bursitis on the right shoulder and indeed on the left shoulder have been caused by repetitive flexion-abduction postures of the shoulder to 0 or 90 degrees. This conclusion has largely been based upon a re-creation of work station in the course of Dr Wigley's medical assessment and worksite assessment performed in March 007. The workstation had already been altered at that time, as a result of the previous worksite assessment, and thus a reconstruction of the original workstation was required for Dr Wigley's analysis. 
Additionally I note that it is not specified whether Mrs Hunter was in fact with Dr Wigley at the time of the worksite assessment and whether or not he relied upon an estimate of Mrs Hunter's positioning when recreating the work station. In contrast the worksite assessment performed by Adapt Therapy Services was performed with the work station in its original position and was explicitly performed with Mrs Hunter operating at the work station throughout the assessment. The conclusion reached by Adapt Therapy Services is that all of the reaching involved a below shoulder level reach. This is highly unlikely to have translated :to sustained shoulder postures of flexion or abduction in excess of 60 degrees. In this context. I prefer the worksite assessment performed by Adapt Therapy Services and see a well completed worksite assessment performed in the original workplace with the affected worker demonstrating work activities, prior to the specific issues central to causation being identified, as providing accurate information when considering the issue of causation in Mrs Hunter's case. 
It is also interesting to note that Dr Wigley mentioned significant worsening of the left shoulder symptoms in the early part of 2006. This aspect of the presentation was certainly not mentioned by Mrs Hunter at the time of my assessment in March 2006. Neither was the left sided discomfort noted at the time of the worksite assessment performed by Alison McNamara on 13/02/2006. Additionally, one must make mention that Mrs Hunter's primary and core task was that of telephonist duties. Over this period she was holding the handset phone with the left hand. I do not see how this aspect of Mrs Hunter's core work activity as telephonist could possibly result in flexion abduction postures at the left shoulder. Dr Wigley states that she began to perform more activity with the left upper limb to protect the right. He does not however explain how this results in flexion- abduction postures at the left shoulder when Mrs Hunter's core work activity involved telephonist work using a hand set phone held in the left hand. 
Thus I do not believe there is good evidence to support the conclusion that there are substantial flexion-abduction postures at the right shoulder within the work environment. Furthermore I believe there is very little evidence to suggest that such flexion- abduction postures could have occurred in the left shoulder. I believe that the worksite assessment performed by Alison McNamara is sufficient to form a very clear idea regarding the work tasks and work environment in Mrs Hunter's case. In many respects this assessment is inherently superior to that performed by Dr Wigley in that the worksite did not have to be reconstructed from memory and the work activities observed by Alison McNamara were performed by Mrs Hunter herself within that particular work setting. 
Mrs Hunter's work activity is of low force and thus highly repetitive or sustained flexion abduction postures would have to be established in order to support causation in her particular case. 
It is not immediately clear in my view the cause of Mrs Hunter's subacromial bursitis in the right shoulder. I do note that she had been engaging in her normal domestic duties, which did include cleaning tasks in a larger than average house. In my view, this is much more likely to be an important factor in the development of her symptoms. Once again I am at a loss to explain the left sided symptoms on the basis of Mrs Hunter's work activity. There does not appear to be a plausible fashion in which she could have established significant flexion abduction postures in the left shoulder within the work environment while still utilising the hand set phone with the left hand. This may suggest that there are indeed non occupational factors which are the most important in the development of her bilateral subacromial/subdeltoid bursitis. 
Please feel free to contact me should you have any questions regarding this letter. ”
The Medical Reports of Dr Wigley 
In his medical report dated 2 April 2007 Dr Wigley said: 
What is Mrs Hunter's physical injury? 
Bilateral subdeltoid bursitis. This is supported by typical signs, symptoms and ultra-sound imaging. On the right there was bunching indicating impingement on the acromion. There may also have been supraspinatus tendon strain (tendonitis) of insufficient degree to show on ultra-sound examination. 
In your opinion what caused the bursitis. 
There was sustained repetitive work soon after changing to a clearly unsatisfactory work-station holding the phone mainly to her left ear and reaching repeatedly 80 to 90 degrees and less often to 120 degrees to reach the door release button. The load was greatest on the right shoulder till it became painful so that she transferred the load to the left shoulder, which then became painful. The desk was higher than recommended so that all her desk activities would involve more shoulder elevation than normal adding to her shoulder load. 
On returning to work she did as much as she could with the left arm to spare the right, so it was not surprising that she developed identical symptoms (bursitis) on the left. 
The time relationship of work to signs and symptoms is important. The symptoms regularly increased with work and decreased on her days off and the period off work. It has been said that a time relationship alone does not prove cause. This is true of concurrence of load and symptoms once or twice but if this happens more than three times, as in Jill's case, causation is beyond doubt. In her case this is supported by the other factors discussed above and further by the contemporaneous occurrence of shoulder pain in two of her co-workers on changing to the same unsatisfactory work-station. 
Were there any non-work factors contributing to causation? No. 
Are those in her occupation at greater risk of developing subdeltoid bursitis than those who are not? 
Though no studies have been reported of her exact work situation, studies of similar occupations (End 5) have shown that the repetitive elevation of the shoulder to 60 degrees and above are at risk of such shoulder complaints. She repeatedly held her arm at 80 to 90 degrees of forward flexion and abduction and intermittently to 120 degrees of forward flexion for the door button. When the chair was low she would have to raise her arms further adding to the load on her shoulders. 
It is established that she had subdeltoid bursitis on the right with impingement followed by the same problem on the left when the load was transferred to the left. 
There is strong evidence that repetitive elevation of her shoulder to 80 to 90 degrees reaching from side to side at a very unsatisfactory workstation caused her shoulder problems first on the right and then on the left when she tried using the left arm to spare the right shoulder. 
There is less certain evidence that she had supraspinatus tendon strain. There is no evidence that she had capsulitis. 
With further improvements to the work station she should ultimately sustain more work hours. ”
In medical report dated 23 September 2007 Dr Wigley said: 
“I have studied the new information from Allison McNamara and Dr Hartshorn and will comment as requested. 
4 September 2007. Ms. Allison McNamara, Adapt Occupational Therapist, 
The change in the workstation is obviously going to result in difficulties. 
While this is true it was not difficult to move the viewing screen, keyboards and other equipment to simulate the previous work station. Mrs Hunter demonstrated this herself and Sgt Newberry was present. 
She considers that there was repetitive abduction of the right to 60 degrees rather than my estimate of 80-90 degrees. Either way this is sufficient to cause shoulder problems as indicated in the NIOSH report (Enclosure). 
She accepts that Mrs Hunter transferred the load more to the left arm to spare her painful right shoulder. This would involve similar reaching angles for the left side, presumably under more stress as the equipment was placed for right handed use. This would be in addition to holding the phone to the left ear repeatedly. 
She agrees that Mrs Hunter does not engage in any non-work activities that involve the same degree of repetitive/sustained reaching. 
She comments that the original work station did place Mrs Hunter at risk as recognized with the changes to the workstation. 
19 September 2007. Dr Hartshorn to Ms K Berry, Ford Sumner Lawyers. 
He comments that the subachromial /subdeltoid bursitis identified on 18 April 2007 (26 days after his examination) was similar to the presentation on the right side. 
He was concerned that for my worksite assessment the original work station had to be simulated. As stated above this was done by Mrs Hunter herself and was observed by myself and Sgt. Berryman. 
Despite this difficulty Ms McNamara only disagrees with my observations in saying that reaching was not above shoulder height and she questions whether flexion/abduction would have been more than 60 degrees or more. Her statement on this is not explicit. Dr Hartshorn concludes: ‘This is highly unlikely to have translated into sustained shoulder postures of flexion or abduction in excess of 60 degrees.’ This conclusion is not supported by either worksite assessment. 
I agree that highly repetitive or sustained flexion/abduction postures would have to be established to support causation but I consider that these risk factors did apply in Mrs Hunter's case. 
He considers that normal domestic duties (not detailed) are more likely to be an important factor in the development of her symptoms. If this was so why she did not develop her symptoms previously as she has always coped with domestic duties? Ms McNamara states that Mrs Hunter does not engage in any non-work activities that involve the same degree of repetitive/sustained reaching. Thus I cannot support this theory. 
He is ‘at a loss to explain the left sided symptoms’ as he does not think she could achieve significant flexion/abduction postures while still holding the phone in the left hand. She had to assume the functions previously done by the right hand alternating with holding the phone. Surely this would place her at greater risk of developing the left sided symptoms and bursitis than when she sustained her right sided injury. ”
Legislation and Legal Principles 
The legislation in force is the Injury Prevention Rehabilitation and Compensation Act 2001 (“the 2001 Act”). The provisions of s 30, the relevant section, are as follows: 
“30. Personal injury caused by work-related gradual process, disease, or infection 
Personal injury caused by a work-related gradual process, disease, or infection means personal injury— 
suffered by a person; and 
caused by a gradual process, disease, or infection; and 
caused in the circumstances described in subsection (2). 
The circumstances are— 
the person— 
performs an employment task that has a particular property or characteristic; or 
is employed in an environment that has a particular property or characteristic; and 
the particular property or characteristic— 
causes, or contributes to the cause of, the personal injury; and 
is not found to any material extent in the non-employment activities or environment of the person; and 
may or may not be present throughout the whole of the person's employment; and 
the risk of suffering the personal injury— 
is significantly greater for persons who perform the employment task than for persons who do not perform it; or 
is significantly greater for persons who are employed in that type of environment than for persons who are not. 
Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is of a type described in Schedule 2 that is suffered by a person who is or has been in employment involving exposure to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury. 
Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). 
Personal injury caused by a work-related gradual process, disease, or infection does not include— 
personal injury related to non-physical stress; or 
any degree of deafness for which compensation has been paid under the Workers' Compensation Act 1956. 
Subsection (7) applies if, before 1 April 1974, the person— 
performed an employment task that had a particular property or characteristic; or 
was employed in an environment that had a particular property or characteristic. 
The circumstances referred to in subsection (6) do not prevent the person's personal injury from being personal injury caused by a work-related gradual process, disease, or infection, but he or she does not have cover for it if section 24 or section 361 applies to him or her. ”
I have considered the cases of Cullen [2004] NZAR 481, JBDB [2000] NZAR 385, Knox [2000] NZAR 609, Phillips (AI 436), Turner (AI 95/2004) and Scott (AI 95/2004). Gradual process claims have become unduly medically and legally complicated and I attempt to set out some simple principles. 
My starting point is 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 onus is on the appellant to show the necessary degree of causation on the balance 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. ”
In Barnsley (Wellington DC 68/99) Judge Barber, considering a gradual process claim for carpal tunnel syndrome, said: 
“I think this is a situation which requires nothing more than a consideration of the evidence, particularly the medical evidence, and the application of commonsense undeterred by some curious views of the medical experts. 
Also, I have misgivings about a stream of written medical opinion reports … In this case there seemed to be no end to these reports … A debate about ‘symptoms’ versus ‘injury’ only clouds the simple approach required in this case …  ”
In my view these approaches set out in a simple uncomplicated way the approach generally to causation issues arising under this legislation. 
The elements that must be established by the appellant under s 30 are: 
There must be proof of a personal injury caused by gradual process, disease, or infection arising out of and in the course of employment. This first element is important, as it raises the issues of “personal injury” being caused by “gradual process”. It is generally necessary to prove a discrete physical injury. It is also, important to show a causative link to a “gradual process”. In this case the injury is bilateral subdeltoid bursitis with associated impingement. 
It is then necessary to identify that the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic, which caused or contributed to that personal injury by gradual process, disease, or infection. This identification is critical, as it serves as the comparative basis in establishing the next two steps. Medical evidence will be critical in isolating the particular characteristics of the gradual process that have caused or contributed to the personal injury. 
Having identified the property or characteristic then the appellant must show that it is not found to any material extent in the non-employment activities or environment of the person. This generally is a simple factual test. But if the characteristic of the work task is also found in the non-employment environment to a material extent then the test in s 30(2)(b)(ii) is not satisfied and cover is not available. So it is not a question of either work being the cause or employment activities being the cause. Both the work activity and the non-employment activity may be material contributors, and if that is the case, then the second test is not satisfied. 

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