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Accident Compensation Cases

Cullen v Accident Rehabilitation and Compensation Insurance Corporation (HC, 23/04/04)

Judgment Text

JUDGMENT OF GODDARD J 
Goddard J
[1]
This is an application for special leave to appeal a decision of Judge Beattie dated 31 May 2001, on the ground that Judge Beattie erred in law in his interpretation and application of s 32(2)(c)(i) of the Accident Insurance Act 1998 (“the Act”). Leave to appeal was refused by Judge Middleton in the District Court on 23 September 2002 on the basis that Judge Beattie's decision had been reached on the facts and did not raise any question of law. 
[2]
The facts are not in dispute. It is accepted that the injury concerned in this case comes within the definition of personal injury caused wholly or substantially by a gradual process, being of a kind described in s 39(2)(d) of the Act. The applicant, who was employed as a cleaner at the time, had developed carpal tunnel syndrome. Both sides accepted that: 
a)
his work activities (frequent hand-wringing while cleaning) would have contributed to the onset of his condition, satisfying the test in s 33(2)(b)(i) of the Act; 
b)
and that the evidence of the occupational medical specialist satisfied the test in s 33(2)(b)(ii) of the Act. 
[3]
The issue arising is whether Judge Beattie correctly applied the test in s 33(2)(c)(i) to the applicant's case, using the formula adopted by William Young J in Knox v ARCIC [2000] NZAR 609. The applicant says that on a correct application of the test in s 33(2)(c)(i) he has satisfied the test and should qualify for cover. 
[4]
The respondent says that no arguable question of law does arise from Judge Beattie's decision over the correct application of the test in s 33(2)(c)(i). Mr Barnett's submission was that Judge Beattie had reached his decision on the facts and that the decision had been open to him on the evidence before him. 
The legislation and test in s 33(2)(c)(i) of the Act 
[5]
The relevant provisions of s 33 (and s 33(2)(c)(i) and (ii) in particular) are as follows: 
“(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 the 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. ”
[6]
In his decision, Judge Beattie made the observation that s 33(2)(c)(ii) and its predecessor s 7(1)(c) in the 1992 Act had “exactly the same wording”. That is not strictly correct as the former s 7(1)(c) had provided: 
7. Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment – (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if – 
 
(c)
The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. ”
[7]
The difference between s 33(2)(c)(i) and s 7(1)(c) is that s 33(2)(c)(i) distinguishes between “task” and “environment” and presents the tests as alternatives, whereas s 7 joined them together and referred to the task in that environment. 
[8]
In Knox v ARCIC, the case in which a convenient X and Y formula for the significant risk test was adopted, William Young J also referred to “the relevant work task in the relevant work environment” and to “that task in that environment” rather than focussing solely on the employment task as specified in s 33(2)(c)(i). 
Judge Beattie's decision 
[9]
In his decision, Judge Beattie recorded the acceptance of the expert medical advisors and the respondent that the applicant does suffer from CTS on both wrists, with the injury assessed as in the range of mild to moderate severity. Medical opinions had been obtained from the applicant's general practitioner and from Dr Keir Howard, an occupational medicine specialist, and these were that the syndrome is directly linked to the cleaning work the applicant was carrying out “insofar as his work activities will have attributed to the onset and progress of the condition” (per Dr Keir Howard). 
[10]
Judge Beattie further recorded that Dr Keir Howard and a second occupational medicine specialist, Dr John Monigatti, had also reported that the development of carpal tunnel syndrome is multifactorial in origin and can occur in a number of non-employment activities (such as cleaning in the home) and is relatively uncommon in men. However, neither occupational health expert knew of any epidemiological studies that had specifically looked at particular risk to commercial cleaners. In his report, Dr Monigatti had elaborated as follows: 
“ … The highest rates of carpal tunnel syndrome tend to be found in occupations and job tasks that demand intensive manual exertion, such as meat packers, poultry processors and automobile assembly workers. Workers subject to hand-arm vibration, such as rock drillers and forestry chainsaw operators are also at increased risk. 
Like Dr Howard, I am unaware of any statistical data to suggest a greater incidence of this disorder in cleaners than in other occupational groups. The NIOSH epidemiological review (1997) did not cite any studies involving carpal tunnel syndrome in cleaners. The Montreal study by Rossignol et al (1997) [which looked at carpal tunnel syndrome in middle-aged housewives whose daily activities required frequent wringing motions of the hands] identified seven occupational groups as having an excess risk of surgical carpal tunnel syndrome. In decreasing order, these were housekeeping, food and beverage processing, wrapping or packaging, food and beverage servicing, lorry driving, child caring, and data processing. The risks in hairdressers, specialised educators, manufacturing occupations, clerical workers, healthy care occupations, and construction workers were not statistically increased. 
I imagine Dr Howard was referring to this study when he equated cleaners with housekeepers in terms of significantly increased risk. 
However, the Montreal study has important limitations. There were only seven female and four male housekeepers in the population sample. This is a very small group from which to draw statistical inferences. Also, housekeeping and cleaning encompass a wide range of tasks, many of which are not common to both and not provocative of carpal tunnel syndrome. Moreover, the housekeepers in the Montreal study were in full time employment, whereas Mr Cullen was not. For these reasons, I consider the evidence for a greater-than-expected incidence of carpal tunnel syndrome in cleaners somewhat tenuous. ”
[11]
Applying the X and Y formula adopted in Knox v ARCIC, and earlier applied by him in his own decision of Burgess v ARCIC (Decision No 99-99, 22 April 1999), Judge Beattie compared the characteristics involved in the particular tasks that the applicant had undertaken in his cleaning job with the commonality of those same tasks in other occupations and aspects of daily living. He said: 
“ … it is to be looked at from the point of view of a person who carries out the cleaning tasks which involve the use of certain hand or body movements which are the causative factors, or in this case the contributorily causative factors, and compare that risk with the risk of injury associated with persons who are not doing cleaning tasks involving those particular body movements. ”
[12]
Of the expert opinion evidence before him, Judge Beattie noted: 
“ … there is no definitive statement from any expert source expressing an opinion of a significantly greater risk. At best Dr Monigatti is prepared to assess that X might be marginally greater than Y but as he noted, the characteristics involved in the particular tasks the appellant did and which were found to be contributorily causative are also found to a material extent in numerous other occupations and aspects of daily living. 
I do not consider that the observation by Dr Howard that because CTS is relatively uncommon in men that this would suggest an occupation relationship, I find that this can only be particular to his appellant and may lead to reinforce his earlier view that the appellant's work tasks were contributorily causative of his condition. However, for the purposes of the test of (c) it cannot be said to be uncommon in persons generally and Dr Monigatti has taken it that stage further to indicate his view and there is also the fact that the appellant may well have had some predisposition, which again is not a factor which can be taken into account when considering the tests under (c). ”
[13]
On th basis of the evidence before him, and applying the significant risk test in s 33(2)(c)(i), Judge Beattie found that the particular work task performed in the applicant's case and which had been found to be causally connected to his injury did not give rise to any degree of risk of injury from doing that particular task in the workplace greater than the risk of developing this injury in “numerous other occupations and aspects of daily living”. Thus Judge Beattie concluded, as a matter of law and fact, that the evidence before him had failed to satisfy the test required under s 33(2)(c) so that the applicant was not entitled to receive cover for his carpal tunnel injury. 
The case for the applicant 
[14]
Mr Miller began by referring to the distinction now made between “task” and “environment” in s 33(2)(c), a distinction which he submitted had changed the focus of the test to be used, and referred to Judge Beattie's apparent error in stating that the wording of s 33(2)(c) is “exactly the same” as the wording in the previous s 7(1)(c). He submitted that Judge Beattie's error in this regard, coupled with his adoption of the X and Y formula in Knox v ARCIC (that case having also erroneously referred to “the relevant work task in the relevant work environment”) had led Judge Beattie to make the significant risk comparison using a more restricted group as X than is the case when the task is separated from the environment, which is now the position under s 33(2)(c)(i). 
[15]
The second point advanced by Mr Miller was that Judge Beattie had also erred in his comparison of significant risk of carpal tunnel syndrome by including in group Y all cases of carpal tunnel syndrome in reliance on Dr Monigatti's evidence that “carpal tunnel syndrome is a very common condition in the general population and occurs mostly in people who do not work”. Mr Miller's argument was that a comparison of risks under s 33(2)(c) is to be made in the context of the definition of personal injury under s 29 of the Act and thus not all cases of carpal tunnel syndrome occurring in the general population (including the non-working population) should be included in group Y. 
[16]
The third point advanced by Mr Miller was that Judge Beattie had further erred by an incorrect comparison of employment tasks in groups X and Y. He submitted that the proper application of the test is to compare in group X the risk of injury from employment tasks having the particular property or characteristic with the risk of injury from employment tasks which do not have that particular property or characteristic. Thus in the present case the comparison should have been made between employment tasks requiring frequent wringing or lateral movements with the wrists/frequent use of the fingers with the wrist flexed and tasks that do not involve those particular movements. If, on such a comparison, the incidence of carpal tunnel syndrome is found to be greater in the X group than in the Y group then there is significant risk for the purposes of s 33(2)(c)(i). However, to simply include one employment task with that particular characteristic with all other employment tasks with the same characteristic would be to ensure that no carpal tunnel syndrome claimant could ever succeed in any employment injury claim. 
[17]
Mr Miller said: 
“The learned judge actually answers this in the appellant's favour though as he was applying the wrong test he thought it was against the appellant when he said at [para] 35 that ‘the particular tasks the appellant did and which were found to be contributory causative are also found to a material extent in numerous other occupations … ’ 
This it is submitted answers the question in the appellant's favour as all these other occupations are actually brought into factor X as they are tasks requiring frequent wringing movements with the wrists/frequent use of the fingers with the wrist flexed. 
They are not brought into factor Y, as the Judge thought, as factor Y covers those who either do not do frequent wringing movements with the wrists/frequent use of the fingers with the wrist flexed in their tasks and suffer CTS or are those who suffer CTS in non employment situations BUT in both X and Y groups the CTS being compared must also be a personal injury under s 29. 
Thus the learned Judge has applied the wrong test. 
What is clear is that the test must be one that will not result in the risks in one injurious employment being compared to the risks in another injurious employment with the result that injured workers in either injurious employment will not be covered for their workplace injuries. 
The tests adopted by the respondent's medical advisors and the Judge unfortunately result in that situation. ”
[18]
Finally, Mr Miller noted that in several subsequent cases Judge Beattie has in fact moved to adopt a less stringent test for carpal tunnel syndrome injuries than in the applicant's case and has ruled in favour of cover for carpal tunnel syndrome sufferers on a correct application of the comparative test. For instance, in Beets v ACC (DC Wellington 12/03, 20 November 2001) Judge Beattie found as follows: 
“Although the respondent did not consider the statutory criteria of a gradual process injury before it declined the claim for cover, it simply dealing with the matter on causation alone, I find that the evidence of Dr Monigatti sufficiently covers the other criteria. He advised there were no non-work activities which could be considered materially causative and that the risk of suffering CTS is significantly greater for persons who perform the employment tasks such as those performed by the appellant than for persons who do not perform those employment tasks. ”
[19]
Similarly Judge Beattie found in favour of the claimant in the decisions in Scoles v ACC (DC Dunedin 310/01, 8 November 2001) and Ah Siu v Care Advantage Limited (DC Wellington 12/03, 30 January 2003) 
Discussion 
[20]
Although the test under s 33(2)(c)(i) can probably be categorised as a new test because the comparison in that subsection is not dependent upon the environment as a criteria, the significant risk test to be applied (in terms of a comparative X and Y formula) essentially remains the same and applies equally to s 33(2)(c)(i) and (ii). 
[21]
Therefore, notwithstanding the error in Judge Beattie's statement that the wording of the s 33(2)(c)(i) and s 7(1)(c) is “exactly the same”, I am not convinced that he overlooked the distinction now made in s 33(2)(c). This is because he expressly distinguished between “work task” and “work environment” in his earlier decision in Burgess v ARCIC, which he quoted from in paragraph 34 of his present decision as follows: 
“Section 7(1)(c) is intended to assess whether or not a particular work task or work environment, which has been identified as causing or contributing to the personal injury is a task or an environment which involves particular bodily movement or posture, or being subject to a particular environment which persons generally might not be expected to undertake or be subject to, and that there is a significantly greater risk of injury associated with that bodily movement, posture or environment as it is present in that work task or work place as opposed to bodily movement posture or the environment generally which might be experienced by persons in ordinary day to day living outside that particular workplace. 
With that in mind I find that the Court is entitled to look at the particular work task that is performed and which has been found to be causally connected to the injury [to] see whether it is the type of task that the populous in general might be expected to do so that the risk from injury from doing that particular task in the work place is no greater than the risk outside the workplace because that particular task posture or movement is equally performed in a myriad of circumstances. ”
[22]
However there is a real issue as to whether, in applying an X and Y comparison, Judge Beattie did compare “apples with apples” (in terms of comparing groups that both fell within the definition of personal injury in s 29) and also compared the incidence of risk in persons undertaking the particular employment task undertaken by the applicant with the incidence of risk in other employment tasks not involving the same characteristics. 
[23]
I am satisfied that Judge Beattie did not distinguish his X and Y group on those particular bases but rather conducted a comparison between the incidence of carpal tunnel syndrome in commercial cleaning with the incidence of carpal tunnel syndrome across all other occupations as well as in the general population. In this regard, he relied upon the interpretation that the medical experts placed on the significant risk test and on the comparisons of groups of carpal tunnel syndrome sufferers that they had made. Their interpretation seems however to have been influenced by the seeming prevalence of carpal tunnel syndrome in the general population and by a lack of any authoritative epidemiological data as to specific causes. 
[24]
What is interesting to note is that in the later decisions of Beets, Scoles and Ah Siu referred to above, an approach that does accord with the test in s 33(2)(c) has been taken by the respondent's medical advisers and Judge Beattie in relation to carpal tunnel syndrome in the workplace. Any other approach, with respect, would seem unlikely to fulfil the objectives of the compensation legislation. As Mr Miller submitted: 
“Whatever test is used it is submitted that it must be one that will not result in the risks in one injurious employment being compared to the risks in another injurious employment with the result that injured workers in either injurious employments will not be covered for their workplace injuries. ”
Conclusion 
[25]
It follows from all of the above that I find Judge Beattie erred in law in his application of the test in s 33(2)(c)(i) to the facts of the applicant's case and the matter is to be referred back to the District Court for redetermination. The significant risk test in s 33(2)(c)(i) is to be undertaken by a comparison between all occupations involving employment tasks with the same characteristics as those undertaken by the applicant (ie tasks involving lateral wringing movement of the wrists) and all other occupations not involving those particular employment tasks. 

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