A Napier restaurant worker has won a three-year battle with "Goliath" ACC over whether his work injury was caused by using tongs to make kebabs at work.

Ismail Robin used tongs for most of his shift at Cafe Anatolia in Taradale, putting salad and meat onto wraps or rice onto 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 off his injury claim form with a diagnosis of carpal tunnel syndrome (CTS).

Beacham explained the likely cause of Robin's injury was "grasping tongs at work" in which he worked nine-hour shifts, six days a week, using his right hand to serve food with tongs.

In a questionnaire for ACC, Robin said his usual work tasks involved "BBQ/salad bar/use of tongs" for 5-6 hours per day, and "other jobs like preparation" for 2-3 hours per day. His first symptom was numbness in his fingertips around July 13, 2019.

ACC declined his claim in September, stating his work environment had not caused the condition.

There was no evidence of highly repetitive and forceful wrist flexion and extension or gripping and vibration being a significant part of his working week, it stated.

Robin engaged employment law specialist - and his doctor's daughter - Sacha Beacham who filed an appeal in December 2019, that ACC had made its decision "with haste, in a unilateral and arbitrary manner" and not by a suitably qualified ACC staffer.

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

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

However, the range of tasks when he was not serving were 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 movement or force and posture were more inclined to cause CTS, he said.

Cafe Anatolia in Hastings. Photo / Ric Stevens

Again, ACC declined his claim.

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

Dr Beacham provided ACC a further report stating Robin's whole working day was grasping and rotation of the wrist joints, and working a six-day week compounded the problem.

Robin also made coffee for 40 to 50 people a day, involving grasping and firm flicking and pushing of the wrist.

Dr Beacham wrote his CTS symptoms became less during lockdown.

"After returning to work from lockdown the symptoms reappeared.

"It is 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 dismissed by ACC and he appealed again.

Dr Beacham filed a further report, critical of Emrys, noting he didn't give sufficient weight to Robin's practice of making coffee and the forceful gripping and flexion of the wrist during his 50-hour working week.

He also pointed to a report from his daughter - and Robin's counsel - Sacha Beacham, showing "the highest proportions of carpal tunnel syndrome were observed in cooks and occupations characterised by high physical workload".

Dr Beacham noted he had seen more cases of CTS in cafe and fast food workers, where food and drinks were prepared quickly and consumed by greater numbers of the population.

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

In forming his decision, Judge Peter Spiller said there was corroborative evidence from Robin, the cafe's HR manager, and Dr Beacham about his repetitive use of tongs to serve food.

He found that Emrys' assessment "should be given less weight" for multiple reasons including his evidence of no flexion or extension and that there was no "significant force involved in the use of tongs" and was "unnecessarily restrictive".

He said Emrys failed to take into account "numerous other uses of force" in his working day including making coffee and "incorrectly" dismissed a potential causative link as he was unable to find any published papers on CTS being caused by that repetitive action.

"This court finds that the temporal connection between Mr Robin's injury and his work characteristic, together with the sound and logical medical reasoning of Dr Beacham, establishes the necessary causative link to the required degree of probability.

"If there is expert opinion, such as that of Dr Beacham, that an aspect of Mr Robin's work poses a special risk, then this third test can be satisfied without requiring proof that the difference is major or substantial.

"This court is satisfied that the view of Dr Beacham is to be preferred."

'It's always a Goliath type battle when it comes to ACC'

Sacha Beacham told Open Justice the win "means everything for my client because it is life-changing" - he could now seek treatment for his condition.

However, not only was the appeal outcome significant to her client but she expected it would put the "hospitality industry on the grid" in regards to carpal tunnel syndrome.

"This case is one small resource to contribute to and possibly assist declined 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, the cooks, the baristas, the front of house staff who are exposed to the repeat biomechanical work tasks associated with CTS, which has largely been ignored by the science, the research and ACC because of the archaic premise that CTS is attributed to the processing and manufacturing industries."

She hoped hospitality workers would now not be at so much risk of developing CTS and that ACC would take their concerns and claims seriously.

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

A GP for 48 years, Dr Beacham had always advocated for his patients to have access to treatment, "it just so happens he has the benefit of being able to refer these matters to me and I happen to be his daughter".

"So it was a Goliath-type scenario and it always is when you take on ACC."

Beacham moved to Auckland in 2012 after racking up a string of convictions and the Law Society pushing, but failing, to have her struck off after three convictions for drink-driving and one each of resisting arrest and obstructing police.

"I made the move from Hawke's Bay to Auckland in 2012 and started up Employment Law Hub Consulting which I have been running since.

"My main focus is employment law and relations – and this attracts a variety of work where no one case is ever the same."

- Belinda Feek, Open Justice