Rowlands v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 30/ 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ALLEN GEORGE ERNEST ROWLANDS of Upper Hutt Appellant (Appeal No. DCA 101/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 27th day of July 1999 APPEARANCES/COUNSEL E P Peters for appellant L Dall for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON While this appeal came on for hearing on 22 July 1999 it was then adjourned to enable the appellant to consider the further evidence which had been submitted and to refer it to Mr Hunter for his comment. Both counsel have now had the opportunity to provide additional submissions and I am in a position to issue this decision. The issue is whether the respondent was correct to cancel the appellant's weekly compensation pursuant to s.73(1) on the grounds that his ongoing incapacity was no longer the result of the personal injury he suffered in December 1997 for which he had been granted cover. The appellant who is aged 64 was a self employed 2 plasterer who lodged a claim for weekly compensation on 16 May 1998. In that application the appellant stated that the injury was "lower back sprain" which was caused " lifting bags of cement & twisting". The respondent requested the appellant's general practitioner Dr Matuszewska to explain her request for a referral to the Workwell programme because the Workwell questionnaire completed by the doctor noted that the appellant had osteoarthritis of the lumbar spine and early changes in the right hip. In a reply dated 23 June Dr Matuszewska explained that the appellant had "strained his lower back a few times over the last 10 to 15 years, most recently in December 1997". The respondent granted the appellant cover in respect of the back strain which had occurred on 10 December 1997 and commenced payment of weekly compensation. The Workwell assessment report was provided by Dr W Taylor on 21 July 1998. His diagnosis was "osteoarthritis right hip? His comment was: "He stopped work in May (self employed plasterer) because of the symptoms. There has been significant improvement since reducing his activity levels. He has not greatly functionally impaired and is able to do most things, albeit with some difficulty." Dr Taylor reported that: "His x-rays demonstrate moderate to mild osteoarthritis changes of the right hip marked particularly by a large acetabular subchondral cyst. There are also osteoarthritis changes of the lumbar spine which are probably within normal limits for his age.' Or Taylor considered that his problem related to the osteoarthritis in the right hip. Dr Taylor considered that the appellant should be referred for an orthopaedic opinion. The appellant was referred to Mr C Hoffman, an orthopaedic surgeon who assessed him on 22 July 1998. In a report to Dr Taylor and Dr Matuszewska, Mr Hoffman stated: "He doesn't have any other symptoms into the left leg nor significant backache at present. He has no sphincter disturbance. His health is otherwise reasonable. On examination he walks with a limp. He is able to heel and toe walk. His forward flexion is good with fingertips to distal tibia. Back extension is uncomfortable and very limited with reproduction of low back ache. His slump test is negative. His distal neurology is normal. His right hip range of motion is limited with good flexion in both hips and a negative Thomas test but some discomfort on rotation which is limited to half normal range, particularly internal rotation. His abduction is also painful in the groin. Movements of the hip reproduce discomfort that he recognises. 3 and "His x-rays of the low back reveal multilevel degenerative disc disease. His hip x-rays show a cyst in the lateral acetabulum of the R hip with some loss of joint space and a medial osteophyte. I think he has well established osteoarthritis in his right hip and he would benefit from a right hip joint replacement. This will improve his pain in the leg, particularly groin and thigh and may or may not influence the buttock pain which may be coming from his low back. There is no doubt having a more supple hip will improve his range of motion and is likely to reduce his back disability. We have placed his name on the waiting list. I have not arranged to see him again until his surgery." As the report had been prepared to support a request for assistance with surgery to the appellant's right hip, the respondent notified the appellant on 6 August 1998 that as the problem with his right hip resulted from osteoarthritis and not from an accident, it would not assist with the cost of the proposed surgery. In addition, it advised the appellant that his entitlement to weekly compensation would be cancelled from 23 August 1998 as his "ongoing incapacity is no longer due to your back injury". The decision was made under s.73(1). The appellant lodged an application for review of that decision. Prior to the review hearing the appellant's counsel arranged for him to be examined by Mr P S Hunter, an orthopaedic surgeon, who had available to him the assessment report prepared by Mr Hoffman on 22 July 1998. In his report of 25 September 1998 Mr Hunter stated that the appellant's present condition was "pain in his right lower back which passes down through the right buttock and down the back of his right thigh and is a shooting shock-like pain occasionally accompanied by a tingling feeling in the lower leg. He has not noticed any numbness or weakness in his right leg but it does hurt him to cough or sneeze." Mr Hunter found that there were minor osteoarthritis changes in the finger joints and that his spinal movement was full although movement of his hips demonstrated half the range of rotation in the right hip when compared with the left hip and internal rotation of the right hip caused some groin and buttock pain. Mr Hunter then referred to his examination of the x-rays which was: "X-rays show changes in the lumbar spine commensurate with a hard working life and his age with some osteoarthritis of the facet joints and mid lumbar spondylosis changes. In my view the lumbo-sacral disc is markedly narrowed. X-ray of the hips shows very minor loss of joint space on the right with an acetabular cyst which would be described as an osteoarthritis cyst which has, in my view, been present for some considerable time." His conclusion was: "This patient was fully fit until an incident in December '97 during which while lifting, he injured his lower back. In my view this is an accident in the normally accepted definition, he had a normal spine, doing heavy work until this lifting accident. Since that time he has been unable to lift or do heavy work and has, in my opinion, been advised to give up his job as a plasterer. The symptoms, to me, suggest damage to a lower lumbar intervertebral disc and from the distribution from the pain down the back of the right thigh there has been some irritation of the 1 sciatic nerve root which is still irritable as evidenced on nerve tension testing and a positive sciatic stretch. Sciatic pain is usually made worse by coughing or sneezing and described as shock-like and often accompanied by tingling and I believe most of his present problems are due to damage to the lumbar spine and disc injury. He has some so-called degenerative or osteoarthritis changes in the lumbar spine commensurate with his age and heavy working and sporting life. These are not the cause of his pain but are likely to delay the repair processes and I think it unlikely he will recover sufficiently to do heavy work. The medical aspects of this case have become slightly confused by the discovery of loss of movement in the right hip and x-ray changes that show signs of early osteoarthritis in the right hip. Clinically the range of movement in the right hip does not appear to have altered greatly but to elucidate this matter further I obtained some up to date x- rays of the right hip. These were carried out on 23-9-98 and when compared with the x-rays taken in February show that the osteoarthritis process has advanced significantly. From the information provided it appears that application has been made for this patient to have a right hip replacement for costs to be covered by ACC but this has been declined as osteoarthritis is not necessarily associated with an acute injury. From the descriptions of the symptoms coming from his right hip given to me today and the fact that he gains considerable relief from medication, it is my view that hip replacement is not immediately necessary. On the progression of his osteoarthritis over seven months it is likely that surgical intervention to replace the right hip would be required in the short rather than longer term. I still think the lifting incident in December '97 drew attention to an incipient osteoarthritis; the changes on x-ray two months after the incident are very minimal indeed and could have been due to injury to the hip initiating an 5 arthritic process two months earlier which on present radiological evidence has been quite a rapid deterioration. I believe the same argument applies to the osteoarthritis hip that until this injury in December '97 there was no problem with the lumbar spine or the hip and he was able to do heavy work without a problem. Since this incident he has been having trouble with his spine and has developed an arthritic right hip and I believe both these areas are clearly attributed to injury. While the injury to his lumbar spine may well repair itself, I do not think the back will recover sufficiently to enable him to undertake heavy work. He is likely to require a hip replacement at some stage but it would be unwise for him to return to the normal duties of a solid plasterer with an artificial hip as this would likely mechanically overload the artificial joint after a period. In summary, my opinion is that he is unfit for heavy work as a result of an injury in December 1997 which has damaged his lumbar spine and seems to have initiated traumatic osteoarthritis of the right hip. The injury to the lower spine may well steadily heal. Unfortunately the problem with his right hip is likely to deteriorate but a good result can be expected from a joint replacement with regard to relief of pain and restoration of function but not to the extent where it would be wise for him to return to heavy work." A report to the appellant's counsel from Dr Matuszewska confirmed her belief that the appellant's disability was the result of the back strain he suffered in December 1997. She did however indicate that while the backstrain had occurred in December 1997, he did not consult her until 18 February 1998 when he complained of low back and right hip pain which had not resolved from the time of the accident. The appellant's case officer then referred the file to its local medical officer who suggested obtaining details of the appellant's medical history. As a result Dr Matuszewska provided clinical notes which showed that he had had consultations in January 1985 and April 1986 in relation to some problems with his right hip. An x-ray report dated 5 February 1985 states: "LUMBO SACRAL SPINE & SACRO ILIAC JOINTS: There is a minor scoliosis in the lumbar spine convex to the right. Moderate degenerative lipping is seen between LV 2/3 and 3/4. The lumbo sacral disc is narrowed and there is moderate lipping here. This is a disc lesion at the lumbo sacral junction. PELVIS AND HIP JOINTS: There are cystic degenerative changes in the right acetabular buttress. There is early lipping about the right hip joint. This is an early OA change. The left hip joint is still within the limits of normal." A subsequent x-ray report of 24 February 1998 states: "PELVIS 6 There is evidence of some early OA change in the right hip with superior joint space narrowing and a fairly sizeable subchondral cyst at the upper outer margin of the right acetabulum. There is no OA present in the left hip and no other bony abnormality is detected. LUMBAR SPINE There is a significant degree of disc space narrowing at the L5/S1 level and there is also particular osteophytic lipping on the bodies of L2 and L3. The pedicles and neural arches appear intact, no other bony abnormality is detected." The x-ray report as a result of referral by Mr Hunter on 23 September 1998 reads: "PELVIS FOR RIGHT HIP There are moderately severe OA changes to the right hip joint with almost total loss of the joint space, sclerosis and cyst formation in the lateral acetabulum." The clinical notes from Dr Matuszewska disclose an entry on 18 February 1998 which states: "Longstanding problem with back and R hip pain started after 3 injuries to it in 1985, 1996 and one on 10/12/97 when he was lifting heavy bag of cement and carrying it with testing in lumbar spine + carrying heathy (sic) buckets long way to building site, can bend forward easily but not backwards or laterally, limping due to R hip pain." The review hearing took place on 18 December 1998. The appellant explained to the review officer that he had not had to take time off work because of hip or lower back pain until after the incident in December 1997. He said that even after that he had continued to work in spite of pain but had to give up in April or May because he could not carry on with the pain in his lower back which radiated down the back of his leg. He told the review officer that he had not suffered from his problem prior to the December incident. The review officer concluded that the evidence disclosed that the appellant's continuing pain problems were the result of the osteoarthritis and that that was the cause of his incapacity. He therefore confirmed the respondent's primary decision. It is against that decision which the appellant now appeals. The appellant was granted leave to adduce an affidavit setting out the appellant's work history and confirming that he had strained his back in his mid-20s as a result of which he wore a corset off and on for approximately 8 months as a precaution. He said that at the time he strained his back he was working as a plasterer but after some 8 months of wearing the corset he was able to go without it altogether. He said that he then joined the New Zealand Police Force where he underwent a thorough physical examination, but was accepted into the Force where he remained for some 25 years without back problems. 7 The respondent was given leave to adduce a further report from Mr Hoffman dated 30 June 1999 and a subsequent letter dated 12 July 1999. In the report of 30 June 1999 Mr Hoffman noted that when he first saw the appellant in July 1998 "his back x-rays revealed multi-level degenerative disc changes and his x-rays of the hip showed an early degenerative change with a cyst which I thought was significant". Later in the report he stated: "I am unable to give you a definitive answer as to what injury occurred in his back on the 12th December 1997. It is clear he would have had pre-existing degenerative change but he is adamant that he did not have significant back pain prior to the lifting incident of that day. He also did not have significant hip pain or difficulty with rotation and I must agree with Mr Hunter's assessment in his thorough report, that the heavy lifting incident would have aggravated his lumbar spine and initiated a traumatic osteoarthritis in his right hip." Mr Hoffman's opinion: "I think that there are two causes for Mr Rowlands' ongoing incapacity. One is that he has well-established longstanding osteoarthritis/degenerative change in his lumbar spine and secondly he has a rapidly progressive degenerative change present in his hip which is consistent with post traumatic osteoarthritis. From my examination of July 1998, I determined that his hip was the most significant cause for his disablement at that time. It was on this basis that I placed his name on the waiting list for a hip replacement." In his subsequent letter of 12 July 1999 Mr Hoffman stated in reply to questions put to him by counsel for the respondent: "I have reviewed your comments and certainly, as you point out, there was an x-ray in 1985 which did show some cystic degenerative changes in the right acetabular buttress suggestive of early arthritis. This x-ray report from 1985 would certainly confirm that there was pre-existing arthritis in the hip. The cyst that I identified in 1997 was evident in 1985 and was therefore there as a pre- existing osteoarthritis process. It does, however, remain plausible that the twisting incident not only led to a back injury, but also to an aggravation and to subsequent rapid deterioration in the osteoarthritis that was present in his hip."" Following the hearing of the appeal leave was granted to the appellant to refer Mr Hoffman's reports to Mr Hunter for his comment. His specific answers were: On the information supplied to me, I believe the incident in December '97 caused injury to both this patient's lower back and to his right hip. 1 believe my diagnosis of lumbar intervertebral disc damage from an overload injury remains reasonable, based on my examination of 23-9-98. Plain x-rays are not helpful in this diagnosis which is largely a clinical one 8 and my observation about lumbo-sacral intervertebral disc narrowing should not be construed that I took this observation into account in making the clinical diagnosis. It does seem that the x-rays taken shortly after his accident differ little from those described in 1985. It is unclear whether the acetabular cyst is rightly described as an osteoarthritis cyst and I am in agreement with Mr Hoffman that the overload injury might well have caused some damage to the articular surface of the hip joint initiating an active osteoarthritis process. 2. I do believe on the history that I have, that Mr Rowlands' incapacity for work is due in whole or in part to the injury sustained in December 1997. 3. The lumbo-sacral disc is narrowed. The significance of this is unclear and t seems likely there were some age related changes in the intervertebral disc in 1985 which do not appear to have progressed very much in 12 years and I do not think it would be possible to conclusively demonstrate what structure was injured in the spine in the lifting injury of December 1997. 4. I believe our medical reports are largely in agreement and in particular, I reiterate that it appears the facts speak for themselves in that this patient was doing heavy work without problems from his lower back or his right hip until an event in December 1997 has damaged the lower back and initiated a progressive osteoarthritis process in the right hip which has radiologically deteriorated as well as symptomatically and requires treatment by hip replacement." Mr Peters submitted: 1. That the review officer erred in determining that the appellant was not entitled to cover when cover had already been accepted by the respondent. 2. That notwithstanding submission 1, the review officer erred in failing to afford the appellant an opportunity to make submissions and/or adduce evidence on the question of cover and in his application of the law regarding the test of incapacity. Ms Dall submitted: 1 . That the appellant has misunderstood the combined effect of ss. 10 and 73(1) in that there is a distinction between cover for an initial injury and cover for an ongoing condition. 2. That the review officer did not fail to provide the appellant with sufficient opportunity to make submissions on the question of cover, particularly as the 9 decision letter of 6 August 1998 notified the appellant that any incapacity he suffered could no longer be attributed to his back injury. 3. That on the basis of the decision in ARCIC v Burke (198/98) and other similar cases, an initial finding of cover for an injury does not preclude a subsequent finding that there is no cover for an appellant's ongoing symptoms. 4. That on the basis of the medical reports the osteoarthritis changes in the appellant's lumbar spine and right hip pre-dated the incident in December 1997. The relevant law is s.10 and s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 which respectively state: "10. General exclusions from cover - (1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is-- (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury [covered by this Act] (2) For the avoidance of doubt it is hereby declared that-- (a) Personal injury caused wholly or substantially by the ageing process; and b) Personal injury to teeth that is caused by the natural use of those teeth-- is not covered by this Act." 173 . Suspension, cancellation, or refusal of compensation and rehabilitation-- (1) The Corporation shall, if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation." I do not accept Mr Peters' submission that the review officer was not entitled to discuss the question of cover. It is clear from the decision in Burke that there is a distinction between cover for the injury and cover in respect of ongoing symptoms as in this case. The decision of the respondent was that while cover had initially been granted in respect of the injury to the appellant's back, subsequent medical information led the respondent to hold that the appellant's ongoing symptoms were not attributable to the back injury but to the pre-existing osteoarthritis in his hip. consider that it was open to the review officer to review the appellant's case on the basis on which he did. The issue then arises as to whether or not the medical evidence supports the review officer's finding. 10 While further reports have been provided by both Mr Hoffman and Mr Hunter, Mr Hunter's report of September 1998 attributes the onset of the appellant's osteoarthritis to the twisting incident in 1997. I must agree with Ms Dall's submission that it is clear from the GP's notes and the x-ray reports that there was clear evidence of osteoarthritis changes in the appellant's lumbar spine and right hip as early as 1985. There are also the references to hip and back problems as far back as 1985. In contrast Mr Hoffman in his report of 30 June 1999 confirms that there was longstanding osteoarthritis and degenerative change in his lumbar spine. In addition, Mr Hoffman is of the opinion that it was the hip to which the appellant attributed the bulk of his pain and disablement and he was unable to say what was the particular injury that occurred in December 1997 except by reference to the appellant's explanation of what occurred. In addition, the cyst which was evident in the hip in 1985 demonstrated osteoarthritis changes in the hip at that date. In Mr Hoffman's opinion the changes appeared to be asymptomatic up to the time of the injury but became rapidly symptomatic following the injury, although the development of the cyst was not a consequence of the injury itself. He considered that the injury led to a subsequent rapid deterioration in the hip function with the acceleration of the arthritic process. On the other hand, Mr Hunter is of the opinion that the incident in December 1997 caused injury to both appellant's lower back and his right hip and is the cause of his incapacity for work. He appears to support this view by the fact that the appellant was asymptomatic up until the time of the accident following which there has been a rapid deterioration. In cases such as this the Court has to rely on the medical evidence. While there appears to be some differences of opinion between Mr Hunter and Mr Hoffman, I find it difficult to overcome that aspect of the medical evidence which indicates the existence of degenerative changes as early as 1985. While Mr Hunter took the view that these changes were what would normally be expected in the back and hip of a person of this appellant's age, Mr Hoffman thinks they were of significance in relation to the subsequent osteoarthritis changes which developed after the December 1997 incident. There is no doubt that the medical evidence supports the fact that the appellant suffered a lower back strain in the December lifting and twisting incident. However, the appellant did have osteoarthritis changes in his back and hip at the time of the December 1997 incident which triggered the rapid advance of the problem in his hip as Mr Hoffman suggested. However, I do not consider it was the cause of the osteoarthritis in the hip. The only suggestion that the hip may have been damaged in the 1997 incident comes from Mr Hunter whose opinion was that the injury on that day was to the lower back and could have also included some damage to the hip. The issue before the Court is whether the ongoing symptoms suffered by the appellant are the result of the injury to his back in December 1997. I consider that 11 the medical evidence establishes that the significant problem which is the cause of the appellant's pain is the problem with his hip which was not the injury for which cover was granted. I consider that his ongoing incapacity is not now due to his back but to the pain caused by the osteoarthritis changes in his hip. Accordingly, I consider that the decision of the respondent as confirmed by the review officer was correct and the appeal is dismissed. DATED at WELLINGTON this 27th day of October 1999 Awwmadlib A W Middleton District Court Judge dca10199.doc(rd)