Accident Rehabilitation and Compensation Insurance Corporation v Pavarno

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 76 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Appellant (Appeal No. DCA 352/97) AND ROWLAND PAVARNO of Gisborne Respondent HEARD at GISBORNE on the 24th day of March 1998 APPEARANCES A S Sarkar for appellant K Clapham for respondent DECISION OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the Review Officer who reversed the appellant's decision of 13 June 1997 which ceased the respondent's entitlement of weekly compensation from 15 July 1997. The respondent who was then aged 51 suffered an injury to his back on 17 August 1996 when he slipped and fell some two metres into a steel container striking his back against the edge of an engine. He was diagnosed as suffering a contusion to the 2 thoracolumbar junction. Subsequent medical certificates referred to the diagnosis as being lumbar and mechanical backache. The appellant received a report from Mr I M Kelman, an Orthopaedic Surgeon dated 17 January 1997. The appellant had posed a number of questions to Mr Kelman who gave as his opinion and answers as follows: "OPINION Mr Pavarno has a severe back problem. This is related to his activities as a labourer doing particularly heavy and strenuous work. I would consider that his situation has been slowly degenerating over the years and after the last injury has reached a stage where his spinal cord is now being compromised leading to pain and some neurological effect. It is my opinion that return to heavy labouring work is probably unlikely, he may return to a job with the same company but with less intensive labouring aspects to it but this would have to be negotiated with his employers. The other areas of his back also show marked degeneration and previous injury and together with the most recent evidence of pressure on the spinal cord I think that he is a case that could require urgent consideration for rehabilitation and reorganisation of his work as I feel it is unlikely that he will return successfully to heavy labouring duties. IN RESPONSE TO YOUR QUESTIONS: 1 . He has injury to the high lumbar spine and this would be in keeping with the original diagnosis of contusion of the thoraco-lumbar junction. The diagnosis of a lumbar disc prolapse is that which has been made following the evidence brought out by the CT scan. I feel that the injury of 17-08- 96 was probably the cause of his present predicament. 2. The current effects of his accident are severe back pain limiting his movement. The prognosis I feel should be guarded. 3. The symptoms that he has are mainly as the result of the injury of 17-08- 96, he does have however a background of degenerative disease but I feel that this is probably also work related. 4. As expressed above I have my doubts that he would return successfully to his pre-accident occupation. This may be attempted but in view of the findings I think that he has a back which will not withstand the rigours of his job. 5. I feel that he may return to lighter labouring work which does not involve bending, lifting and straining his back, supervisory activities may be 3 appropriate for him. I feel that these matters should be looked at at (sic) an early stage. 6. Rehabilitation is therefore necessary in this case. 7 . He has not been under referral to a physiotherapist as yet but has had an epidural injection. Copies of his CT scan report are included. 8. His current treatment plan is that of waiting for the full effect of the epidural steroid. He is to be off work and to begin exercising, particularly walking, cycling and swimming. 9. Although he has a medical condition of a blood clotting disorder this is not relevant to his condition and not affecting his back in any way." In a subsequent letter to the appellant on 12 March 1997, Mr Kelman confirmed his previous report and stated "I am of the opinion that Mr Pavarno's ongoing back condition is no (sic) solely related to the accident of 17-08-96 but is a further exacerbation of an injury to a back which has previously been injured and has considerable degenerative disease which was present prior to the injury of 17-08-96." On 5 June 1997 the appellant notified the respondent that pursuant to section 73(1), his entitlement to weekly compensation would cease from the expiry of his then current medical certificate on 17 July 1997. The decision was stated to be made on the grounds that the appellant considered the respondent's then incapacity did not relate to the original accident to his back but was due to degenerative disease which was present prior to the accident. The appellant applied for a review of that decision. Prior to the review hearing taking place, the respondent submitted a report from Mr P Robertson, an Orthopaedic and Spinal Surgeon which had been obtained by Mr Kelman who wished to have a second opinion. Mr Robertson's assessment was: 'Assessment lain, I think that Rowland's pattern of back and leg pain is consistent with mechanical back pain coming from the isthmic lumbosacral spondylolisthesis. The leg pain into the left leg is most likely consistent with L5 radicular pain secondary to compression of the L5 nerve root within zone 2 of the nerve root canal at the level of the spondylolisthesis. There is no evidence of spinal stenosis proximal to L5. I have discussed the nature of the condition with Rowland and Chris in some detail and emphasised that it is not sinister. It is likely that the spondylolisthesis has been present for many years and according to Rowland's history it has been entirely aysmptomatic. Rowland is concerned that there may be some possibility of progression and major neurological catastrophe should he have a further injury 4 or fall. I have reassured him that this is extremely unlikely. Progression of adult spondylolisthesis is very rare and I am unaware of any case reports of significant neurological damage without major trauma being applied. In terms of management of Rowland's problem, I believe that his symptoms have settled to the degree that it is appropriate to encourage him to return to light work and his plan to take up employment at Pak 'n Save would certainly fulfil this. Obviously he would be advised to avoid heavy lifting and frequent bending if possible so that his longevity in the work force is maximised. Should he develop any significant deterioration with the back and leg pain I would be happy to further review him and consider further investigation, but this is not appropriate at present. Rowland is having considerable difficulties with ACC and I note there has been an opinion suggesting that the genesis of his problem is mainly a degenerative process rather than accident. It is my view that given that he was totally free of back symptoms prior to the fall, then the accident and effect of the fall are significant contributors to his current symptoms. It is quite clear from his radiographic examination that there is degenerative lumbar spondylosis, however this is frequently asymptomatic and a widespread finding when the normal population is examined at age 50. Equally, the present of asymptomatic spondylolysis and spondylolisthesis are also a common problem occurring at an incidence of approximately 6% and 2% respectively within the community. Whilst I agree Rowland's spine was not normal prior to his injury, the pertinent point was that it was asymptomatic prior to the injury and he has had significant problems with pain and disability subsequent to the injury. In my view this means that ACC bears a significant reasonability for the relevant aspects of his ongoing medical care, compensation and the like." The appellant referred Mr Robertson's opinion to its Medical Advisor, Dr K Bremner who issued a report dated 2 September 1997 in which he stated: "I cannot accept Peter Robertson's argument nor do I believe it is legally tenable. Mr Cartwright in the Munro case made it clear that any minor injury which results in pain cannot be held responsible for an underlying pre-existing condition. Our view is that while we may accept the injury which resulted in pain under section 8(2) (a), in the absence of any underlying pathology, recovery would be expected in approximately six to eight weeks, and cover should not extend beyond this period. Any persisting discomfort must be considered to arise substantially as a result of the underlying condition - in this case, the ageing condition of widespread spinal spondylosis demonstrated radiologically and confirmed clinically by two specialists. 5 Thus cover at this point is precluded from cover by section 10(2)(a)." The Review Officer reviewed the medical evidence and accepted that it disclosed significant spinal degeneration predating the accident. The Review Officer considered that the appellant was bound by the "eggshell skull principle" and noted that prior to the accident the respondent had been symptom free. He considered that the evidence of the specialists confirmed that the respondent's problems still related to the accidental injury and there was no specialist evidence to the effect that the acute symptoms from the accident had dissipated. The Review Officer considered that the factual situation was similar to that of Ngaruhe v ARCIC (83/95) and adopted Judge Ongley's finding in that case and reversed the appellant's decision. It is against that decision which the appellant now appeals. Prior to the appeal hearing the appellant sought further information from Mr Kelman whose reply of 9 February 1998 states: "1 . The medical evidence discloses that Mr Pavarno's backache came on suddenly as a result of the injury in August 1996. Prior to that he had no back problems. Subsequent to the accident he has had severe problems which have meant that he is unable to do his work that he did previously and did so without difficulty. The x-ray evidence shows that he has a long-standing degenerative lumbar spondylosis. However in a man of his age this could be a finding in at least half the population and would be asymptomatic. The physical condition which he suffered following the injury cannot be entirely attributable to a gradual process or disease notwithstanding the fact that this was obviously present previously. 2. The current physical condition that Mr Pavarno suffers is attributable to the accident which he suffered. There are two areas of pathology in his lumbar spine. At L3-4 there is hard disc material indicating a lumbar disc prolapse. At the lumbar sacral junction there is a spondylolysis. It is most likely that the symptoms which he suffers are secondary to the spondylolysis. A large percentage of the population have such a condition and this does not interfere with their daily activity or ability to do heavy manual work. It is unlikely that the x-ray picture of his back comes about as a direct result of the accident. I would suggest that the symptoms he now suffers are a direct result of the accident which occurred in August 1996." A similar query was made by Mr Robertson whose reply of 12 February 1998 states: "I have reviewed Mr Pavarno's notes. In answer to your first question, the medical evidence discloses that Mr Pavarno's current symptoms relate closely to his fall. He told me that he was free of all trouble with his back prior to the accident at work in August 1996. Conversely the x-ray changes demonstrate that there had been evidence of a gradual process within the lumbar spine, that of lumbar spondylosis, and also that there was an 6 isthmic lumbosacral spondylolisthesis, again an event that is likely to have developed and occurred in the past. One must be careful to emphasise that the radiological information suggests long term processes, however the patient was free of symptoms prior to his fall and therefore the medical history discloses that his current complaints of back and leg pain with some reduction in motion and tenderness along the sciatic nerve relate to the fall itself. With regard to your second question, I find the wording of the question a little difficult to understand, however I suspect the appropriate answer is that although Mr Pavarno had a pre-existing problem of lumbar spondylosis plus an isthmic spondylolisthesis, the injury has caused these to be symptomatic. It is likely that the injury has caused some small but significant change in the relationship of the structures at the lumbosacral junction resulting in compression of the L5 nerve roots in association with the lumbosacral spondylolisthesis and hence the new symptoms of back and left leg pain." Ms Sakar submitted: 1. That the respondent is not entitled to cover for personal injury caused by accident under section 8(2)(a) as his personal injury was caused substantially by a gradual process 2. That it is conceded that the respondent suffered personal injury by accident on 17 August 1996. 3. That the medical evidence indicated that the accident caused a small but significant change in the relationship of the structures of the respondent's lumbosacral junction resulting in compression of the L5 nerve roots in association with lumbosacral spondylolisthesis which produced the symptoms of back and leg pain. That this rendered the pre-existing condition of the respondent's back symptoms. 4. That the medical evidence clearly demonstrates severe spinal degeneration predating August 1996. That the question on appeal is whether the respondent's personal injury is caused wholly or substantially by the degenerative changes in his spine. That the medical evidence is that the personal injury is caused substantially by a gradual process. Mr Clapham submitted: 1. That there is no dispute that the respondent suffered personal injury in an accident on 17 August 1996 wherein the personal injury sustained was "a small but significant change in the relationship of the structures of the respondent's lumbo sacral junction resulting in compression of the L5 nerve roots." 2. That he disputes the appellant's submission that the medical evidence established that the personal injury was caused substantially by a gradual process. 7 3. That it is not open to the appellant to refuse cover on the grounds that a gradual process is the substantial cause of the respondent's incapacity. That section 10 clearly provides that a personal injury caused wholly or substantially by gradual process is not covered but the section makes no mention of apportioning a cause to incapacity. 4. That section 37(1)(c) and section 37A(2) deal with the question of incapacity and provide that if the respondent is by reason of his personal injury unable to engage in his former employment, he is eligible to receive weekly compensation under the Act. 5. That he adopts the findings of Judge Ongley in Ngaruhe and submits that that case is applicable to this respondent's case. I agree with the findings of the Review Officer that there is no specialist evidence which establishes that the acute symptoms suffered by the respondent following the accident have dissipated. Both specialists are of the opinion that the accident exacerbated the pre-existing degenerative condition which had previously been asymptomatic. Mr Kelman is clearly of the view that the respondent's current symptoms are the direct result of the accident. In Ngaruhe, in which Judge Ongley was faced with a similar situation as applies to this respondent, Judge Ongley rejected the argument that there was no incapacity under section 37 if the incapacity could also be attributed to a pre-existing degenerative condition as well as a personal injury. In making that finding Judge Ongley stated: "In reaching that conclusion I reject the respondent's argument because it rests on a clear distinction being drawn between back injury caused directly by the fall and disability caused by degenerative disease. The appellant may well have gained some advantage in compensation if he was in any case about to become incapacitated through his degenerative back condition before he suffered the fall. If he had not fallen he may have become incapacitated anyway and he would not have been entitled to compensation, but once he became incapacitated within the meaning of s 37 he was entitled to the benefits of the Act. Incapacity as it is defined in s 37 is indivisible. One cannot say that a person is unable to engage in the same employment because of contributory reasons attributable separately to the accidental injury and a pre-existing condition. If such a narrow construction is available it has never been applied. It follows that in a case such as the present there is no basis to find the incapacity has ceased unless there is an overall physical improvement." In this appeal the appellant cancelled the respondent's entitlement to weekly earnings pursuant to section 37 on the basis that the evidence available to it then indicated that the respondent's ongoing symptoms were attributable to his degenerative disease rather than the accident which had occurred on 17 August 1996. The issue must be determined in terms of section 37 and on a factual basis very similar to those as applied in the Ngaruhe case which was followed and approved by the Review Officer. 8 I consider that on the medical evidence available to him the Review Officer made the correct decision. The appeal is dismissed. There will be costs to the respondent of $850. DATED at WELLINGTON this 2| day of April 1998 A W Middleton District Court Judge dc352-97.doc (nr)