Fraser v Pacific Dunlop Ltd

[1989] TASSC 61

Serial No 61/1989
List "A"

CITATION:              Fraser v Pacific Dunlop Ltd [1989] TASSC 61; A61/1989

PARTIES:  FRASER, Angela
  v
  PACIFIC DUNLOP LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  WC 193/1986
DELIVERED ON:  15 November 1989
JUDGMENT OF:  Cox J

Judgment Number:  A61/1989
Number of paragraphs:  16

Serial No 61/1989
List "A"
File No WC 193/1986

ANGELA FRASER v PACIFIC DUNLOP LTD

REASONS FOR JUDGMENT  COX J

15 November 1989

1. This is a claim under the Workers' Compensation Act 1927 ("the Act") by a worker against her employer which carries on business at Derwent Park in Tasmania as a manufacturer of textiles and textile products. The claim is put on two bases. In the first place she claims she was and is disabled as a result of the disease referred to in Schedule II of the Act as inflammation of the synovial linings of the tendon sheaths, which disease arose out of and in the course of her employment with the defendant from February 1973 to June 1985. Secondly, and in the alternative, she claims she suffered personal injury by accident arising out of and in the course of her employment with the defendant at its premises, being an injury of gradual onset which occurred between 1973 and 1985. The condition complained of is inflammation of the synovial lining of the tendon sheaths of the plaintiff's left and rights wrists and hands. The facts stated hereafter represent my findings unless otherwise specified.

1. The plaintiff now aged 42 years commenced work at the defendant's premises in February 1973 and continued to work there until 1977 when she left to have a family. She resumed work in May 1980. From that time on she worked an evening shift of five hours on five nights of the week making doona covers. This was a highly repetitive process involving laying out in each shift between 500 and 600 pairs of cotton lengths measuring 85½ inches by 140, 180, 210 or 244 centimetres, the sizes corresponding with standard single, double, queen size and king size products. In 1984 she commenced to experience pain in her wrist and complained to her supervisor who gave her wrist bands to wear. The pain continued but was not very serious. Nevertheless she consulted her general practitioner, Dr Wakefield, who prescribed pain killers. Later on she began to experience a "pins and needles" sensation around the palm of her hand and on each wrist a ganglion developed. The pain would get worse as the week progressed and would be alleviated by rest over the weekend. The pain would affect her first in the wrist, then the hand, then up to the elbow and then up to her shoulder, the right side being more seriously affected than the left.

1. In 1985 Dr Wakefield prescribed anti–inflammatory tablets called Dolobid and on the 19 June of that year put her off work until the following 4 July. He found plainly visible swelling over the tendons of the wrists and diagnosed inflammation of the tendon sheaths which he regarded as associated with her work. On the 2 July 1985 there was a marked improvement in her overall well being, but there was still some fullness over the muscles in the web between the index finger and thumb of the right hand and he also found pain radiating from the upper border of the right trapezius muscle down to the right deltoid. He did not note any inflammation of the tendon sheaths on that occasion. On the 16 July 1985 she presented with a right carpal tunnel syndrome with some degree of numbness in the hand. This condition which involves entrapment of the nerve as it passes through the wrist into the hand is generally due to swelling of the tendon sheaths and other tissues in the space through which the nerve passes. On the 9 August 1985 he gave her a certificate to the effect that she was suffering from synovitis and right carpal tunnel syndrome commensurate with an injury received at work and was not fit for work from that date, but would be fit to return to work on the 16 August 1985.

1. Having been off work on Dr Wakefield's advice from the 20 June 1985 the plaintiff returned to work on or about the 19 August 1985 and worked for two days. A company officer directed her to attend the company's medical adviser, Dr Gibbs, and told her she was not to return to work until Dr Gibbs approved. She went to see Dr Gibbs but he would not certify her fit for work. She has never resumed work. By this stage, although not working, she was experiencing constant pain in her hands and arms and could not undertake such household tasks as vacuuming, ironing, knitting and hanging out washing. She began to favour her right arm and wrist but still experiences pain and swelling in it upon exertion. She said, and I accept her generally as a truthful witness, that a week before trial she had iced a cake and got swelling in the hand. The present symptoms are now more confined to the neck and shoulder area. Although the wrist pain has not gone away completely it has stopped being a constant pain. It was about one year after she ceased working that she no longer experienced constant pain in her hand and wrists but only pain brought on by particular activities.

1. Dr Wakefield continued to see her after she ceased work. On the 8 January 1986 she was complaining of pain and stiffness in the wrists and shoulders, but no inflammation of the tendon sheaths was noted by him. On the 6 August 1986 he observed pain over the right trapezius muscle and she complained of occasional pain to the wrists, elbows and shoulder. She had pain on flexion and extension of the wrist against resistance. He diagnosed the wrist pain as being caused by repetitive work injury. There was swelling and fullness over the front of the wrist due to inflammation and fluid collecting in the sheaths. On the 9 June 1988 she complained of pain over the upper border of the trapezius muscle on the right and pains over the latter aspect of the proximal third of the right forearm. No inflammation of the tendon sheaths was noted on that occasion. But on the 9 August 1988 she had a slight degree of right carpal tunnel syndrome with inflammation of the tendon sheaths. On his last two consultations, on the 21 November 1988 and the 28 June 1989, he considered that she was suffering from occupational overuse syndrome and although she did not on these occasions exhibit the signs and symptoms of tenosynovitis, and was not suffering from that condition, he said in evidence that it may rapidly recur should the tendons be subject to strain.

1. The term "occupational overuse syndrome" was put to Dr Wakefield in cross–examination by counsel for the defence as descriptive of the phenomenon observed in a large number of workers in recent years who have presented with a pain disorder of the right upper limb where apparently genuine pain is experienced, there is a common history of repetitive injury at work but no real understanding by the medical profession of the pathology which produces the particular pain. In the plaintiff's case Dr Wakefield agreed that in 1984 and 1985 her difficulties had related more to her wrists, but thereafter they related more to a general pain in the upper limb and radiating into the shoulder, neck and down to the elbow with the wrist problems themselves coming of less significance after 1986.  Nonetheless, he said the most probable cause of her pain was the strain of the tendons through repetitive activity with her work.

1. Mr Howard Bye, orthopaedic surgeon, first saw the plaintiff on the 31 July 1985 on reference from Dr Wakefield. On the history she gave of pains in the right wrist and right forearm going up to her elbow he considered it more likely than not that it was a work related condition. He found inflammation of the tendon sheaths on that occasion. This condition he said normally settles fairly quickly within a matter of weeks with rest and proper anti–inflammatory medication. He next saw her on the 20 June 1986. She complained of pain in the right wrist but of a different kind to that a year earlier, this pain radiating more into her shoulder. He found thickening around the tendon on the front part of the right wrist and concluded that there was some inflammation involved, sufficient in his view to bring it within the description of the disease in the second Schedule to the Act. He considered that she would have difficulty in performing her tasks at her place of employment for a full working week and would be unfit for work in the commercial sense. He last saw her in March 1989. The pain was more in the root of her neck and shoulder, but she had some discomfort in the wrist. The pain came on when she tried to do much in the way of activity. She had definite and dramatic wasting of the muscle around her right scapular. He felt that "the most likely cause was that she was not using that arm as normally one would expect because of whatever reason, probably discomfort given her history – it was because of discomfort that she was reluctant to use it and it was just withering from lack of use".

1. In cross–examination he conceded that tenosynovitis, or inflammation of the synovial lining of the tendon sheath, is a well known pathological condition as is carpal tunnel syndrome, both being capable of being relieved through conservative treatment and anti–inflammatory medication or surgical intervention. He said that when he first saw the plaintiff she had tenosynovitis of the front part of her right wrist which gave her symptoms, but then she had other symptoms which he would not directly relate to that tenosynovitis. By the time he saw her in June 1986 he agreed that "that strict tenosynovitis in the wrist had resolved but she still had a pain disorder of the upper limb which (he) accepted as being genuinely expressed" and that situation continued when he saw her in 1989. He was prepared to accept as a label for her condition "occupational overuse syndrome", being a condition caused by repetitious work practices producing ultimately a genuine pain disorder of the right upper limb radiating into her neck and shoulder, the exact pathology of which is unclear but an often present component of which is the existence of some structural changes to the body, in her case a low grade tenosynovitis which represents a small part of the problem but will not account for it all. Agreeing with the proposition that from a straight tenosynovitis in the wrist one would not have a pain radiating up into the shoulder and neck, Mr Bye said there could be several reasons for the latter complaints, one being hysterical function and another "could be that because of the pain perceived in the wrist it might be felt that it would hurt the wrist if the rest of the arm moved causing the muscles to adopt funny postures and therefore stop moving the arm". He said he saw that "as the kind of thing that one sees as a well known condition called the Shoulder Hands syndrome where people have an injury of the hand and they get a stiff shoulder, or a stiff shoulder and they can start getting pain in the hand".

1. Mr Bye said that a possible explanation of the occupational overuse syndrome was micro–trauma to muscles over a period of time and that he had some sympathy with that suggestion but agreed there was no hard evidence that that is the case and that it was a school of thought but nothing more.

1. The third medical practitioner who gave evidence was Dr NF Edwards who was called by the defence. Though not having formal specialist qualifications he had made a study of occupational overuse disorders while medical officer of the Repco Bearing Company since 1964. He first saw the plaintiff on the 25 February 1988 when he observed a ganglion on the left extensor sheath and a small ganglion associated with some tenderness of the flexor carpi radialis sheath on the right hand. His other examination of her was conducted in December 1988 when he found the pain had changed somewhat. He said "She still suffers some pain in her right common extensor origin in the right scapular region. This pain is present only on activity and is of nuisance value only." As a result of his examinations he said he was satisfied that she was suffering a pain disorder of the occupational overuse type, but the ganglia were not contributing to her pain and that he was fairly satisfied that she was not suffering carpal tunnel syndrome. Occupational overuse syndrome to him represented a "chronic pain disorder and that disorder is one that is an aberration of the person's ability to experience pain or in their experience of pain. He said he thought there were many factors contributing to the occurrence of such a chronic pain disorder and that as the plaintiff had been involved in repetitious tasks in her employment the performance of those tasks were a major factor in the occurrence of her chronic pain disorder. Expanding on the disorder he said:–

"Pain experience is a cerebral activity, it is not a peripheral activity. It means that it is the result of modulation of many different factors, one of which is the afferent messages coming in from periphery. So you understand the person who has an occupational overuse disorder, their pain reception ability misinterprets even the smallest movement of their arm or maybe even the touch of their clothes or even the presence of their watch. So those sorts of sensations come with the brain which normally you or I ignore or actually interpret as something not threatening. A person with pain disorder interprets those entirely differently and that's what we are talking about."

1. As       ked to explain the connection between the repetitious activity and the pain experienced Dr Edwards said:–

"Well my own theory, my own feeling is that – and I think there is some evidence to support it, in that there is special sensory fibres within muscle tissue. When a muscle is over–used then it's well known that the lactic acid concentration rises and certain other chemical changes occur within the muscle fibres. It is possible that the presence of those metabolites and the presence of the changes within the muscle because of anoxia as well – sorry, anoxite, then those afferent sensory fibres are stimulated in such a way that it becomes an extraordinary challenge to the central nervous system. Now that extraordinary challenge to the central nervous system may be the trigger that pushes a person into an abnormal experience of pain."

However, he added:–

"Now I'm only – that's pure supposition. There is no way, at this stage – there have been people who have done work on the – the types of fibres in muscles and that is very much in the initial phase – stages. There have been people who have talked about fatigue in muscles and the reasons why people feel pain with fatigue in muscles. But, again, that is purely speculative at this stage from my point. I'm not a specialist in this area."

Concluding his evidence–in–chief, he said:–

"I think Mrs Fraser is a middle aged lady ... who has worked diligently at her work and as a result of the particular repetitive tasks she has been doing, combined with other unknown factors, has come to suffer a chronic pain disorder which is called occupational overuse syndrome and that has continued since – I would say since 1984."

1. The medical evidence presents a confused picture and is indecisive in many respects. I do however find that as a result of repetitive tasks at her place of employment the plaintiff was and continues to be disabled from engaging in such work. Initially she sustained a condition which falls within the definition of a disease under the Act, namely inflammation of the synovial lining of the wrist joint and tendon sheath or, alternatively, inflammation of the synovial lining of tendon sheaths which although not exclusively was a substantial cause of her disablement for work. That condition, through rest and medication, became largely asymptomatic but was superseded by another chronic condition which can be described as occupational overuse syndrome which continued to disable her for her former work. The latter condition of itself is not a disease within the meaning of the Act, nor can it be described as an injury by accident. A distinction has always been maintained between injury by accident and disease of gradual onset and as Lord Porter said in Roberts v Dorothea Slate Quarry [1948] 2 All ER 201 at p203, "some one incident or definite and distinct series of incidents have been required if the Act is to apply." In that case the onset of work caused silicosis was treated as a disease rather than an injury by accident. On the other hand the back injuries received by a worker retrieving rockets from a firing range, by reason of constant jolting in a poorly suspended vehicle over an uneven surface and cumulatively operating on a pre–existing defective disc, were accepted as injuries by accident in the leading Australian case of Hawkins v The Commonwealth (1966) 116 CLR 159. In the present case the evidence of Mr Bye does not persuade me to accept what he regards as merely a theory, namely that the repetitious nature of the plaintiff's work tasks has subjected her to micro–trauma effecting some discreet physical change which can be identified as part and parcel of her current pain disorder (cf Fife Coal Company Ltd v Young [1940] AC 479 and Fitzsimons v Ford Motor Co Ltd [1946] 1 All ER 429). Equally Dr Edwards' theory of stimulated muscle fibre affecting the function of the central nervous system was not advanced sufficiently persuasively to enable me to be satisfied, on a balance of probabilities, that the plaintiff had sustained injury by a succession of accidents.

1. I think it is clear from the evidence that though periodically rendered asymptomatic by rest and medication the disease I have found to have been caused to the plaintiff by her work practices is a condition which is likely to recur on subjecting the wrists to the strain of such practices or ones of a similar kind and that it has in fact many times recurred. Mr Bye found evidence of it on the 31 July 1985 and on the 20 June 1986 and Dr Wakefield saw evidence of inflammation of the tendon sheaths as late as the 9 August 1988. I have no doubt that were she to return to work with her employer she would very rapidly develop disabling symptoms of this disease. Her case is not dissimilar to that of the appellant in a recent, as yet unreported, decision of the High Court Asioty v Canberra Abattoir Pty Ltd (delivered on the 20989) where a pre–existing but quiescent form of dermatitis was aggravated by the kind of work required of him as a slaughterman producing additional symptoms or an intensification of existing symptoms. Cessation of work resulted in an abatement of symptoms. In upholding the worker's appeal from the Federal Court, Toohey J, with whom all other members of the court agreed, said:–

"The Federal Court concentrated on the fact that once the appellant ceased work with the respondent his symptoms abated. That is not disputed but, in treating that fact as conclusive, their Honours applied the dicta of Moffitt J in Federal Broom Co Pty Ltd v Semlitch [1964] NSWR 511 too strictly. It is true that Moffitt J spoke of the aggravation of a disease as consisting of the production or intensifying of its symptoms. And this will often be the case. However, there is no reason why a disease which produces susceptibility to some debilitating condition should not be regarded as aggravated when that susceptibility is heightened by a circumstance such as work of a particular type or in particular conditions. The Ordinance does not require aggravation of the symptoms of a disease. The Federal Court did not meet the appellant's claim that by reason of the aggravation caused by his employment with the respondent, he is now unable to return to work because to do so will produce symptoms which have already prevented him from continuing at work."

Indeed the present case is stronger in my view for here there is no question of a pre–existing disease or disability. The nature of the plaintiff's work caused the disease in question and initially to such a degree that it incapacitated her for that work. By reason of the existence of that disease (albeit quiescent) caused by such employment she is now unable in my view to return to work, because to do so will produce symptoms which have already prevented her from continuing at work.

1. The fact that her work practices have also latterly produced a superseding condition with symptoms which are now fairly constant and which are themselves of sufficient gravity to disable her for work with the defendant does not disentitle her to the rights flowing from the existence of the scheduled disease. That disease has itself caused an incapacity for that work as I have said and one in my view as total though not as immediate as that produced coincidentally by the supervening condition. As Toohey J observed (supra) the ACT Ordinance (in which respect the Act is to the same effect) does not speak of symptoms. If a disease comprised in the Schedule produces a susceptibility to a debilitating condition, which susceptibility will be heightened by work of the same type as brought it on to begin with, the worker has a disease which disables him for that work. He is entitled to compensation accordingly for he has as a consequence "a reduced physical capacity, by reason of physical disability for actually doing work in the labour market in which (he) was working or might reasonably be expected to work" (Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at p178). He is entitled to compensation for this loss of earning power. The quantum will depend upon whether this loss is total or partial only.

1. The plaintiff was born in Columbia in South America where she completed school to the end of first year matriculation and after leaving school she trained as a dental assistant for one year before obtaining a clerical position in a government department for two years. In this position she gained some experience in shorthand, typing, filing and general clerical duties. She migrated to Australia in 1973 when she procured her job with the defendant company. This has been her only work experience in Australia. Although she speaks English quite fluently (Spanish being her native language) I accept the evidence of Miss Maureen Eady, a rehabilitation counsellor who tested her aptitude for an English speaking clerical position, that her score overall "came out in the one percentile which indicates that Mrs Fraser really doesn't have the skills to probably undertake a clerical job. Mainly she was not fast enough in her speed and accuracy. In the numerical test she was much better with working with figures but in the verbal comprehension test she scored extremely poorly as she could not fully understand the paragraphs presented to her." Miss Eady then identified:–

"... the following jobs I felt she would be capable of physically performing and within her training level if she was able to find such employment and these include being a kindergarten aide which she goes along to 'mothers' help' so she felt she could cope with that; a dental assistant given her previous experience; family day care worker because you can organise your own hours to suit; a sales assistant provided the merchandise was not too heavy to lift; Spanish interpreter; a dress maker as long as it was not repetitively using a machine and she could vary the work; a window dresser she was interested in but knew she would need to do a relevant TAFE course or a craft instructor as she has had some experience in that and was interested in such jobs."

She concluded that there were a few jobs that the plaintiff was capable of doing if able to secure such employment. Mrs Dianne Prattley, a very experienced occupational therapist, also gave evidence which I accept that any return to work by the plaintiff ought to be looked at fairly carefully and it would need to be in a position basically where she would be self pacing with a minimum of lifting. I find that for all practical purposes, at least until retrained, the plaintiff can be said to be totally incapacitated for work.

1. In my view the plaintiff is entitled to payment of weekly compensation from the 20 June 1985 to date at the agreed rate set out in the particulars filed. On my calculations this amounts to $44,812.90 as at the 12 November 1989 and continues at the rate of $204.05 per week. In addition fees for medical consultations relevant to the work induced disease amount to $286.20. The plaintiff will have judgment accordingly.