ACC battle over restaurant worker’s carpal tunnel claim

A Napier restaurant worker has won a three-year battle with “Goliath” ACC over whether his workplace injury was caused by using tongs to make kebabs on the job.

Ismail Robin used tongs for most of his shift at Café Anatolia in Taradale, putting salad and meat on wraps or rice on plates.

Struck with numbness in his fingers and pain in his lower forearm and wrist, Robin went to his GP, Dr Greg Beacham, who on August 10, 2019 signed his claim form for injury with a diagnosis of carpal tunnel syndrome (CTS).

Beacham explained that the probable cause of Robin’s injury was “grabbing tongs at work” in which he worked nine hours a day, six days a week, using his right hand to serve food with tongs.

In a questionnaire for the ACC, Robin said his usual job duties involved “barbecue/salad bar/using tongs” for 5-6 hours a day and “other jobs like prep” for 2 to 3 hours a day. Her first symptom was numbness in her fingertips around July 13, 2019.

The ACC denied his claim in September, saying his work environment did not cause the illness.

There was no evidence that the highly repetitive and forceful wrist flexion and extension or gripping and vibration were a significant part of his work week, he said.

Robin hired employment law specialist – and his doctor’s daughter – Sacha Beacham who appealed in December 2019 that the ACC had made its decision “in haste, unilaterally and arbitrarily” and not by a suitably qualified ACC staff member.

The ACC then engaged occupational medicine specialist Dr. Geraint Emrys in February 2020 to examine Robin in person.

He found that repetitive pinching of the tongs when serving salad and cooking meat on a griddle was associated with the onset of CTS symptoms.

However, the range of duties when not in use was light and did not involve frequent heavy lifting or extended wrist positions.

Emrys also noted that cafe workers, food servers and handlers would not be a group that would have an increased risk of developing carpal tunnel syndrome.

Actions involving forceful gripping and repetitive wrist movements or force and posture were more likely to cause CTS, he said.

Again, VAC denied his request.

It was now July 2020 and the country’s lockdown was lifted.

Dr Beacham provided the ACC with another report stating that Robin’s entire working day consisted of grabbing and rotating wrist joints, and working a six-day week compounded the problem.

Robin also brewed coffee for 40-50 people a day, involving firm grips and movements and wrist thrusts.

Dr Beacham wrote that his CTS symptoms had diminished during the lockdown.

“After returning to work after confinement, the symptoms reappeared.

“It’s not rocket science to come to the conclusion that his workplace is the most likely cause of his carpal tunnel syndrome.”

However, Robin’s review was again rejected by the ACC and he again appealed.

Dr Beacham filed another report, criticizing Emrys, noting that he did not give enough weight to Robin’s practice of making coffee and forceful gripping and flexing of the wrist during his 50-day work week. hours.

He also pointed to a report by his daughter – and Robin’s lawyer – Sacha Beacham, showing that “the highest proportions of carpal tunnel syndrome have been observed in cooks and occupations characterized by high physical workload”.

Dr Beacham noted that he had seen more cases of CTS in cafes and fast food workers, where food and drink were prepared quickly and consumed by more of the population.

However, in response, Emrys said serving rice with a spoon involved “a light grip, minimal weight, relatively low frequency or repetition rate, and forearm pronation”.

In making his decision, Judge Peter Spiller said there was corroborating evidence from Robin, the cafe’s human resources manager, and Dr Beacham regarding his repetitive use of tongs to serve food.

He concluded that Emrys’ assessment “should be given less weight” for several reasons, including his evidence of no flexion or extension and that there was no “significant force involved in the ‘use of pliers’ and was ‘unnecessarily restrictive’.

He said Emrys failed to consider “many other uses of force” in his workday, including making coffee, and “incorrectly” ruled out potential causation because he didn’t had found no published article on the CTS caused by this repetitive action.

“This tribunal finds that the temporal connection between Mr. Robin’s injury and his work characteristic, together with Dr. Beacham’s sound and logical medical reasoning, establishes the necessary causal link with the degree of probability required.

“If there is an expert opinion, such as that of Dr Beacham, that an aspect of Mr Robin’s work presents a particular risk, then this third criterion can be met without requiring proof that the difference is major or substantial. .

“This court is satisfied that Dr. Beacham’s view is to be preferred.”

“It’s always a Goliath-type battle when it comes to ACC”

Sacha Beacham told Open Justice that the victory “means everything to my client because it is life changing” – he could now seek treatment for his condition.

However, not only was the outcome of the appeal important to her client, she expected it would put the “hospitality industry on the grid” when it came to carpal tunnel syndrome.

“This case is a small resource to contribute and possibly help denied claimants in the same position as my client, in the future.

“The case gives some recognition to the silent condition of CTS in the hospitality industry, cooks, baristas, front desk staff who are exposed to the repeated biomechanical work tasks associated with CTS, which has been largely ignored by the science, research and ACC due to the archaic premise that CTS is awarded to processing and manufacturing industries.”

She hoped that hotel workers would no longer be at such risk of developing CTS and that the ACC would take their concerns and demands seriously.

As for taking on the “Goliath” that was the ACC, she said it was a “father-daughter effort” of reports, evidence and experts.

General practitioner for 48 years, Dr. Beacham has always campaigned for his patients to have access to treatment, “he happens to have the advantage of being able to refer these questions to me and I happen to be his daughter”.

“So it was a Goliath-type scenario and it still is when you take on the ACC.”

Beacham moved to Auckland in 2012 after racking up a string of convictions and the Law Society unsuccessfully pushed to have her expunged after three convictions for drunk driving and one for resisting arrest and obstructing the police.

“I moved from Hawke’s Bay to Auckland in 2012 and started Employment Law Hub Consulting which I have been running ever since.

“I focus primarily on labor law and relations – and that attracts a variety of work where no case is ever the same.”