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Eketone V Acc injury was notdue to work injury and DRi

#1 User is offline   doppelganger 

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Posted 18 January 2005 - 08:55 PM

IN THE DISTRICT COURT HELD AT HUNTLY
Decision No.326 /2000


IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992
AND
[N THE MATTER of an Appeal pursuant to Section 152 of the Accident Insurance Act 1998

BETWEEN IRENE EKETONE

Al 39/00

Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent

HEARD at HUNTLY on the 18th day of October 2000

APPEARANCES:

Mr M D Meyrick counsel for appellant
Mr S D Galloway counsel for respondent
Mr M W Vicary advocate for employer, MAF Quality Management Ltd


RESERVED JUDGMENT OF JUDGE M J BEATTIE



The issue in this appeal is whether the appellant can satisfy the test contained in section 7(1 )© of the 1992 Act in respect of her right arm epicondylitis said to have been sustained by the appellant in the course of her employment as a Meat Inspector with MAF Quality Management Limited

The facts which are relevant to the determination of this issue are as follows.

Between 1987 and November 1993 the appellant worked as a Meat Inspector for MAF Quality Management at various meat works in the Southland area.


On 10 May 1996 the appellant lodged a claim for cover in respect of the injury which was described by her GP, Dr Sinclair, as "right tennis elbow and OOS due to occupation". The details of how the injury occurred were stated as being "working as meat inspector, sharpening knives, cutting/trimming meat, developed pain in elbow". The date of the first visit for treatment was stated as being 28 September 1994.


The appellant's claim was treated as a gradual process injury claim but after investigation the respondent determined that the claim did not satisfy the tests provided in section 7 of the Act. In its letter declining cover of 24 July 1996 the respondent stated:

"It is accepted that your employment has contributed to your injury. However this is not a particular risk for a meat inspector and any non-work activities could have significantly contributed to the development of this condition. Also the fact that you have not been working for sometime at this job is also a contributing factor to this decision. Therefore it has not been established that the condition relates to your employment as a meat inspector with MAF Invercargill."


The appellant sought a review of that decision but a review hearing did not take place until 22 December 1998. In his decision dated 19 January 1999 the Review Officer determined that the appellant had satisfied the tests contained in section 7(1)(a) and (b), but insofar as the test in 7(l)© was concerned the Review Officer ruled that the Corporation had not considered that question and there was no evidence before him upon which a determination of same could be made. He therefore referred the matter back to the Corporation to obtain expert opinion on whether the appellant's claim satisfied section 7(1)© and directed that a new decision in respect of section 7(l)© be made following the obtaining of that further evidence.


Following that review decision the respondent obtained further information relating to the appellant's job as a meat inspector. Job descriptions were supplied by both the appellant and the appellant's former employer arid the respondent thereupon sought the opinion from two Occupation Medicine Specialists, namely Drs Monigatti and Turner.


It transpires that Dr Turner had previously been consulted by the appellant through her then counsel, Mr Cadenhead, in August/September 1997. Dr Turner had at that time concluded that in his opinion the appellant did have a gradual process injury arising from the biomechanics of her occupational tasks and he considered she had a claim. Mr Cadenhead sought further clarification from Dr Turner but Dr Turner advised that before he could have give further advice he would require further particulars of the appellant's situation and he listed a number of matters on which he required information.
Before that information was provided Dr Turner notified Mr Cadenhead in October 1997 that he would no longer be available to consult with the appellant.

Subsequent to his involvement with the appellant's case, Dr Turner undertook an extensive study of meat industry employees focusing on occupational overuse in meat Inspectors. It was because of this appointment that Dr Turner withdrew from the appellant's case. when Dr Turner was further consulted by the respondent after the review decision he did so with the knowledge and written consent of the appellant.


In his report to MAF in relation to occupational overuse in meat inspectors dated 25 November 1997 Dr Turner concludes his advice by stating:
"In conclusion people who carry out meat inspection duties are not at any greater risk from OOS than people who do not do this type of work This is because the biomechanics of meat inspection work are such that no significant hazards are likely to give rise to serious harm. Indeed in my view being off work or unemployed and therefore passive or inactive provides a significantly greater risk of musculoskeletat pain through the adoption of statically loaded postures than any activity entailed in meat inspection duties. Where pain develops in an individual meat inspector and escalates despite being off work issues of fitness for work, shoulder and spinal posture, muscle strength, individual stress vulnerability and job satisfaction must be entertained as contributing causes since inevitably pain is of multifactorial origin."


Dr Monigani reported to the respondent on 31 March 1999 and his report states as follows:

"Thank you for requesting an opinion as to whether this claim satisfies the requirements of section 7(l)© oft he ARCI Act, 1992.

Lateral epicondylitis can arise from direct impact, as an overload injury, or from age-related degeneration. As an overload injury it follows mainly minor and often unrecognised trauma (microtrauma) involving the extensor and sup motor (outward rotation) muscles of the forearm.

You will be familiar with the 1997 NIOSH criteria used by the ACC as the evidential basis for attributing certain conditions to work The NIOSH document reported an association between forceful work and epicondylitis, and found strong evidence for a relationship between this condition and exposure to a combination of risk ftactors (e.g. force and repetition, force and awkward posture). There was insufficient evidence to support an association between epicondylitis and either static postures or repetitive work involving the elbow, as isolated factors. The Review concluded: 'forceful and repetitive work is most likely a surrogate for repetitive, forceful hand motions tie at cause contractions of tire muscles whose tendons insert in the area of tire lateral... epicondyle of the elbow".

Mrs Eketone's work as a meat inspector involved mostly observation and palpation of visceral organs and body cavities. There was some repetition of movement and perhaps postural awkwardness, but the essential element of forcefulness was lacking. Besides, "acute" conditions do not arise some months after cessation of the provocative activity, as occurred here.

Although three of the 22 studies cited in the NIOSH Review reported an increased incidence of epicondylitis in meatcutters and meatpackers, none dealt with meat inspectors. I am not aware of any other epidemiological evidence to suggest an increased risk of this condition in this occupational group, 6r in groups performing comparable manual activity.

Degenerative lateral epicondylitis occurs most commonly in the fourth and fifth decades. It is possible that Mrs Eketone had a lower threshold for occupational injury because of her age, but the fact that she had no symptoms indicative of lateral epicondylitis whilst working suggests that the work was not causative.

in my opinion, the requirements of section 7(1)© of the 1992 Act are not met in respect of lateral epicondylitis."



Following on from receipt of Dr Monigatti's opinion the respondent did, by letter dated 15 April 1999, advise the appellant that based on the evidence provided to it by Dr Turner and Dr Monigatti her claim could not satisfy the test of section 7(1 )© and therefore her claim for cover was declined.


That decision became the subject of a review hearing which took place on 16 November 1999 at which hearing Mr Meyrick, who was representing the appellant, did not seek to introduce any further medical or other expert evidence and whose submissions seemed to be directed at discrediting the evidence of Dr Turner and Dr Monigatti.


In his decision dated 3 November 1999 the Review Officer found that there was no evidence upon which he could find that section 7(1)© had been satisfied, rather there was expert evidence to the contrary, and he therefore confirmed the respondent's decision to decline cover on the basis that the appellant could not satisfy the test of section 7(l)©.


For the purposes of appeal to this Court no patty sought to introduce any further evidence.
SUBMISSIONS
Mr Meyrick for the appellant submitted that the Review Officer was wrong in coming to the decision he did. He contended that it was wrong for the Review Officer to accept the written evidence of Dr Monigatti and there was no opportunity given to the parties to examine or cross-examine him and his report should not have been given the weight that it was.


Counsel further submitted that the Review Officer erred in considering the later evidence of Dr Turner in relation to the MAF study which he had conducted when he had as it were changed horses. Counsel submitted that Dr Turner had a conflict of interest and that his comment should not be given weight. He submitted on the evidence able to be considered that the appellant's claim fitted within section 7 and satisfied all parts of the test.


Counsel then went on to assert that the Review Officer, or the review process, was fundamentally biased because of the contractual relationship between the Corporation and Dispute Resolution Services Ltd (DRS) which carried out the review. Counsel submitted that the review hearing could not be independent because of that. Counsel then went on to give a dissertation on the various aspects of bias, actual apparent and presumptive. Counsel submitted that bias must arise despite the provisions of section 140 of the Accident Insurance Act 1998.

Mr Galloway, counsel for the respondent, submitted:
That the evidence of Dr Turner directly addresses the test required of section 7(1)© and finds no increased risk to meat inspectors and persons generally.

The appellant has not produced ariy evidence which would rebut that of Dr Turner and Dr Monigatti.

There is nothing improper in Dr Turner making a report to MAF which was relating to meat inspectors in the industry as a whole arid which was quite separate from the one consultation for the appellant and which was concluded prior to that subsequent study.

Section 140 of the 1998 Act makes express provision for the Review Officer to be employed by the Corporation so that fact does not make them lacking in independence.

Section 158 of the 1998 Act states that any appeal from a Review Officer's decision is to be a rehearing and the issue of bias therefore does not arise.


Mr Vicary, advocate for the employer, supported the respondent's submissions. He reaffirmed the evidence that he had given at the review hearing that epicondylitis was not a significant injury amongst meat inspectors. He stated there were at the time the appellant was working for MAF, approximately 1000 meat inspectors, but that this had now reduced to 750 and that the number of claims per year was less than 2%., with only two claims in the past 12 months.


DECISION


The determination of the issue in this appeal requires a consideration of the provisions of Section 7(1)© of the 1992 Act. That provision must be seen in the context of the provisions of section 7 as a who le. This section states as follows:

7. Personal injury caused by gradual process, disease, or injection arising out of and in the course of employment
Personal injury shall be regarded as being caused by gradual process, disease. or injection arising out ofand in the course ofemployment only if
  • In respect of a period that ended on or after the 1st day ofApril 1974, the employment task performed by the affected person, or the environment in which it was performel had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and
  • The property or characteristic is not found to any material extent in the non-employment activities or environment ofthat person; and
  • 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

[n the context of this appeal the Court is asked to accept that the provisions of section 7(1)(a) and (b) have been satisfied, as was found to be the case by the Review Officer in the decision at the first review. However, merely because it has been determined that an employment task performed by the appellant had a particular property or characteristic which caused or contributed to the appellant's epicondylitis, does not have any relevance for a determination of 7(l)©. That subsection talks of persons generally and is therefore requiring an objective assessment which must put aside the fact that the appellant did suffer the personal injury and look at the employment task in general to see whether it creates a significantly greater risk than the risk of suffering that injury generally,


This provision was recently considered in the High Court decision of Knox v ARCIC (Dunedin Registry AP 3/00) where His Honour Justice Young stated at para 23 as follows.'

"[23] Section 7(1)© requires the decision-maker to make three assessments, The first is to assess the risk of a person carrying out the relevant work task in the relevant work environment developing the injury concerned, say x. The second step is to assess the risk persons who do not perform that task in that environment have of suffering from that personal injury, say y- The third step is to decide whether x is "significantly greater' than y If it At S 7(])© is satisfied. If not, then a claim for cover must fail.


If one applies that formula to the facts as I find them in this present case, the evidence of Dr Turner, which is based specifically on a study of meat inspectors in New Zealand, is that factors x and y are no different. Indeed, Dr Turner stated that the biomechanical activity required of a meat inspector brought about a very low risk of bringing about an occupational overuse injury. Furthermore, Dr Turner noted that persons who are not even doing any work at all are more likely to be at risk and that there is nothing in the particular work task which would indicate a significantly greater risk,


Whilst I am mindful that Justice Young in the Knox decision was critical of the way in which Dr Monigatti had posed the tests in section 7(l)©, I find that his evidence in this case is not of the same type. He is not seeking to categorise by reference to a scale the level of risk of meat inspectors, rather he is stating that the particular movements that they carry out which involved mostly observation and palpitation of visceral organs and body cavities does not require any element of forcefulness and he advises that it is only in situations for work tasks which involve elements of forcefulness can the risk of epicondylitis be increased and he referred to the occupation of meatcutters and meatpackers as examples. I take it from his evidence that because the essential element of forcefulness is lacking in the work of meat inspectors in general, there is no greater risk to that category of persons than for the public in general which can suffer that injury from several sources, namely direct impact, as an overload injury, or from age related degeneration.

The Court has had no evidence asserting any contrary position to that stated by Dr Turner and Dr Monigatti and therefore there is no basis to question their evidence which is supportive of each other.


Mr Meyrick's suggestion that Dr Turner's evidence ought not to be considered, or not be given weight, I find is without foundation. The circumstances under which Dr Turner provided his opinion to MAF was not in circumstances of compromise or conflict. He had given a preliminary indication only to the appellant and certainly was not seized of all the necessary information before a proper opinion could be given and he stated so. In any event his report to MAF relates to the meat industry in genera[ and is certainly not specific to the appellant or any other individual employee.


Dealing now with the allegation of bias by the Review Officer, I find such a submission somewhat alarming based as it is solely on the statutory relationship which is created by sections 138 to 142 of the Accident Insurance Act 1998. Mr Meyrick was at pains to accept that there was no question that the Review Officer was other than independent, as is required to be the case by sections 140 and 142, but nevertheless he contended that the contractual relationship, by its very nature, gave rise to one or more of the categories of bias.


Counsel referred to the Casino decisions but I find that these decisions have no( applicability to the present case unless there is provided some particular of the bias that is alleged. The appellant did not seek to assert that the Review Officer was in any way by his manner of conduct, by word or deed displaying any bias. As best as l can understand Mr Meyrick's submission he simply says:
"For the above reasons the contractual relationship between the parties creates an inescapable perception of bias and the legal presumption of bias within Dispute Resolution Services and by necessary inference within its Review Officers. DRS must renew its contract or cease to exist. And that is the problem.


I do not propose to dwell further on counsel's submission save to say that it is totally rejected. In any event It at submission is misguilded in the context of an appeal to this within the jurisdiction created by the appeal provisions of the Accident Insurance Act 1998. Section 158 of the Act states that an appeal is a rehearing and for that reason any errors or omissions, actions of perceived bias or predisposition by a Review Officer are not matters which the appellant has to face and surmount.

Both parties stand on an equal footing and the Court hears the evidence and determines the matter afresh, coming to its own decision and making its own findings of fact where necessary.


For this reason the submissions relating to bias propounded by the counsel for the appellant have no basis as a ground of appeal in the particular appellate jurisdiction created under the Accident Insurance Act 1998 and its predecessors.


Raving found as I have that the evidence is wholly against finding that section 7(1)© can be satisfied for the appellant it follows that the claim for cover cannot succeed and the respondent's decision to that effect is hereby confirmed. This appeal is dismissed.


DATED at WELLINGTON this 4 th day of December 2000






M. J. Beattie
District Court Judge




AT39.OOEkctcne~doc(gtn)
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Posted 18 January 2005 - 09:07 PM

mmmm given the recent article that identified the doctor as
favourable to the comany, and seeing this one and hearing of lots of other work related claims, im wondering if theres a relation between the employer experience rating and how hard occupational injuries are fought?.....
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#3 User is offline   ernie 

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Posted 18 January 2005 - 09:47 PM

Interestingly, Mike Meyrick, who was the lawyer representing Irene Eketone in this appeal, was sentenced in the District Court late last year for attempting to pervert the course of justice, and has relinquished his practising certificate. He is still facing child pornography charges.

As I have said before, do not just get any lawyer to represent you in ACC cases, but check them out first. Forum contributers will be able to advise you re most of the lawyers and advocates who have reputations as the competent ones, and some of the scumbags who will do a useless job and rip you off.

Quote

Disposing of evidence earns $10,000 penalty

21.12.04
By Nicola Boyes

 
An outspoken former police officer, now a lawyer, has been fined $10,000 for attempting to pervert the course of justice while police were investigating him for allegedly possessing child pornography.

Former Huntly senior sergeant Mike Meyrick, 57, appeared for sentencing before Judge Michael Behrens yesterday in the Hamilton District Court. He had been found guilty in October.

In September last year he took computer parts from his daughter Amyís Auckland home during the police investigation.

Early next year he is to face 31 charges of possessing objectionable material.

The case unfolded when his daughter allegedly found child pornography on his computer in May last year and showed his now-estranged wife Marion Ashby.

Ms Ashby gave the computer hard-drive to Hamilton police in August last year and his daughter took the rest of the machine to Auckland where Meyrick took it before police could execute a search warrant.

Meyrick told the Herald he felt let down by members of his family who had not stood by him.

He believed that the Hamilton police had a vendetta against him and he said he would appeal against the decision because the parts he took from his daughterís home had no evidential value to the police investigation anyway.

"I am utterly bewildered how they came up with that charge. Iím not feeling bitter, I donít actually care. Iíll do something else. Iíll never be a lawyer again but thatís life, isnít it. Iím not going to sit around crying."

Meyrick appeared with another former police officer who is also a lawyer, Alex Hope, on TV3ís 20/20 programme alleging police racism, violence and corruption.

At yesterdayís hearing, Judge Behrens said there was a hint of "arrogance" about Meyrick, who had made a "clumsy" attempt to thwart the investigation already knowing the evidence police had against him.

Crown prosecutor Philip Crayton recommended a prison term of six to 12 months.

He said police never thought the rest of the computer would be taken by a former senior sergeant and officer of the court who knew the implications of his actions.

Meyrickís lawyer, Tom Sutcliffe, said his client had handed in his practising certificate to the Law Society and there was an application to the High Court to have him struck off.

He said the offending had had a devastating effect on Meyrick, whom who he described as an icon in the community held in high esteem by many. His fall from grace was considerable and one he would find hard to come back from.

"He feels he has to reinvent himself - a very difficult task at his age."

Judge Behrens said that while Meyrickís offending was not as serious as interfering with witnesses, it was premeditated and had stopped police gathering any further evidence from the rest of the computer.

Meyrick said he would represent himself at his appeal.
- http://www.nzherald....bjectID=9004112
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#4 User is offline   hukildaspida 

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Posted 27 July 2012 - 09:56 PM

Be mindful there are two Mike Meyricks, both now former Police Officers, one became a Lawyer & is the one based in Huntly, near Hamilton.
Use your own judgement.

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