Law Briefs : Each case different with OOS

Law Briefs

CCH New Zealand


Employees who suffer gradual process injuries in the form of occupational overuse syndrome (OOS) cannot be excluded from accident compensation cover as a matter of policy. Eligibility for accident compensation must be determined on the merits of each case.

The district court, in Teen v ARCIC, had to decide whether a Telecom employee who was diagnosed with OOS had suffered a personal injury entitling her to accident compensation cover.

The case was decided under the Accident Rehabilitation and Compensation Insurance Act 1992. The Accident Insurance Act 1998 provides cover for gradual process injuries in circumstances which are very similar to those covered by the 1992 Act.

The employee worked for Telecom as a credit service representative. In October 1996 her general practitioner diagnosed her as having OOS in the right shoulder, arm, neck and back, and the left upper arm. In the opinion of a specialist who later examined the employee, her condition was caused by the ergonomics of her work environment.

An assessment of the employee's workplace identified the following problems:

* Prolonged call-taking (for up to two hours without a break).

* Keyboarding without wrist support.

* Anticipatory holding of the little finger in extension.

* High work-related stress levels.

The employee was initially granted accident compensation cover. However, compensation payments ceased after about a year following a report from a specialist occupational physician. The physician stated in his report that OOS was not an acceptable diagnosis "either medically, or for ACC."

In the physician's opinion, the employee had not suffered an injury in the normal sense of the word, for example, a fracture, bruise, cut or inflammation. He went on to state that there were policy reasons for compensation schemes not covering a regional pain syndrome such as OOS.

The policy reasons included the potentially unsustainable financial cost to compensation schemes and the possibility that covering OOS cases would cause a proliferation of claims.

The physician referred to the decision taken in Australia to withdraw compensation for this type of injury. He said that the decision was taken to alleviate the OOS "epidemic" in that country in the 1980s.

The physician's views were in line with those adopted by a majority of specialists at a consensus meeting held in Wellington in February 1998.

The district court expressed its concern about the fact that, as a result of the Australian experience, the consensus meeting was convened for the specific purpose of providing a policy by which claims for OOS could be declined.

The court also regarded the occupational physician's statement that claims ought to be denied to meet the public policy requirement of limiting the number of people developing chronic pain as completely disregarding the requirements of the accident compensation legislation.

It was inappropriate for an insurer, the ARCIC in this case, to adopt as its policy the consensus meeting's finding that the number of OOS claims accepted for cover had to be severely restricted. Rather, each case had to be considered on its merits.

In this case the court decided that the employee's condition arose because of the physical stress caused by the poor ergonomics in her work environment.

It concluded that she had suffered a gradual process injury and reinstated her accident compensation payments.

* CCH (NZ) Ltd is a tax, business and employment law publisher based in Auckland.

* For further information, visit the CCH web site at www.cch.co.nz or call 0800 500 224.