Gordon v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 20/2002 (Appeal No. DCA 226/98) UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN ANDREW FINDLAY GORDON of Christchurch Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HELD at CHRISTCHURCH on the 5th day of October 2001 DATE OF THIS DECISION 25 January 2002 COUNSEL Mr A Cadenhead for appellant Mr C J Hlavac for respondent DECISION OF JUDGE P F BARBER The Issue [1] The issue is whether the appellant’s ongoing back problems are the result of personal injury sustained on 20 June 1996 when he was lifting a piano as a furniture remover. It is accepted that the effect of the respondent’s decision letter of 11 April 1997 was a decision to suspend or cancel ongoing entitlements pursuant to s.73 of the Act as from 10 May 1997. [2] By Review Decision dated 30 April 1998, the Review Officer (Mr A J Vivian) declined the appellant’s application for review and upheld the Corporation’s said decision of 11 April 1997. 2 [3] By consent, I granted leave for the appellant to adduce reports of Dr Franzmayr dated 11 May 1999, 3 August 1999 and 11 February 2000, and for the respondent, the 29 September 2000 report of Mr Inglis. Background [4] On 17 September 1996 the respondent received an M46 form from the appellant’s GP, Dr R Edmond, advising that the appellant had injured his lower back lifting a piano at work on 20 June 1996. The date of the first visit to the GP was given as 17 September 1996 when Dr Edmond diagnosed “L5-S1 dysfunction? disc lesion” and certified the appellant unfit for work for seven days. [5] The respondent subsequently investigated the matter and sent a work injury report to the appellant’s employer, Movements International Movers (NZ) Ltd, who advised by letter dated 8 October 1996 that, according to their records, the appellant was absent on sick leave on 20 June 1996, the date of the alleged accident. [6] The Corporation subsequently sought further information from the appellant. He provided a statutory declaration dated 22 October 1996 in which he declared that the date of the accident was, in fact, 1 July 1996 and that, “ … it was done by lifting a piano into a home container on the premises of Movements International here in Christchurch at Treffers Road.” [7] This information was subsequently provided to the appellant’s employer. By letter of 23 October 1996, it provided a copy of the appellant’s daily timesheet for 1 July 1996 which showed that the appellant had not been working at the Treffers Road store on that day and the relevant removal was direct from Templeton to Waiouru and did not involve a piano. [8] Despite this uncertainty as to the date of the accident, on 29 October 1996 the Corporation accepted the appellant’s claim as a non-work injury accident. The Relevant Statutory Provisions [9] The following sections of the 1992 Act are relevant to the respondent’s submissions: “Section 8 – Cover for Personal Injury Occurring in New Zealand – (1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the 1st day of July 1992 in respect of which there is cover under this Act. (2) Cover under this Act shall extend to personal injury which— (a) Is caused by an accident to the person concerned … 3 Section 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 … (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 … is not covered by this Act. Section 37A – Determination of Incapacity in Relation to Earners Generally – (1) … (2) The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred … . Section 73 – 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 … . ” The Law [10] Mr Hlavac helpfully summarised the relevant law for the purposes of this case as follows: “It is now well established in this Court since the decision in Burke (198/98) that section 10 of the 1992 Act establishes a fundamental concept that needs to be addressed on an ongoing basis throughout the time that a claimant is continuing to seek entitlements under the Act. Where a claimant’s ongoing problems are no longer causally connected to the injury for which he or she has cover, then entitlements can be suspended pursuant to section 73(1). 4 The test to be adopted is whether the appellant can establish on a balance of probabilities that his present condition is directly attributable to or causally connected with the injury he sustained in the accident and in respect of which he was granted cover. Where, as in the present case, the medical evidence shows the existence of a pre-existing degenerative condition which is not compensatable under the Act, then the onus is on the appellant to establish that his ongoing problems are as a result of the personal injury for which he has cover, rather than the pre- existing degenerative condition. As has been observed by this Court on numerous occasions, such an issue must be determined on a consideration of the medical evidence. Further, this Court has made it clear on a number of occasions that where the evidence discloses that there are pre-existing degenerative changes which have been brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effect of the pre-existing degenerative condition which can be covered. As summarised by Judge Beattie in Hill (189/98): ‘If medical evidence establishes that there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. That fact that it is the event of the accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature.’ Likewise in Wehipeihana (DCA 49/99): ‘Given that the appellant had a pre-existing condition it must be determined which side of the line this subsequent medical history falls. Was it a triggering of that pre-existing condition to a new stage level, or was it the initiating of something separate and distinct from the pre-existing condition, which that pre-existing condition caused the appellant to be more susceptible and that this new and distinct malady was as a consequence of personal injury by accident. If it is the former, then the provisions of Section 10 would preclude entitlement to cover, but if it was the latter then there is an entitlement to cover and a continuation of that cover for so long as that separate malady is continuing to cause a disability or requiring treatment.’ ” The Medical Evidence [11] Near the commencement of this decision I referred to further medical evidence adduced at the hearing and both counsel addressed that, and also the earlier reports of the three principal specialists retained in this case, namely, Drs Burry and Franzmayr, and Mr Inglis, as to what is causing the appellant’s ongoing pain. There is some divergence between those three specialists. 5 [12] Dr Burry diagnoses a disruption of part of the annulus of the lumbo-sacral disc, with the possibility of an unresolved strain or partial tear of the ligamentous structure of the lumbo-sacral spinal structure. [13] Dr Franzmayr diagnoses “chronic somatic dysfunction” in the lumbar spine. This is based on what Dr Franzmayr recognises as being the “relatively new” musculo-skeletal medicine way of thinking, and what he describes as, “a restricted movement in one or several joints, … the immediate result of a physical injury and occurs the very moment that the patient injures himself or gets injured”. [14] Mr Inglis diagnoses a non-specific back pain syndrome arising from the lumbo- sacral disc. Mr Inglis recognises that contributing factors to such a condition are multi-factorial and may include the degenerative changes seen on x-ray and MRI in the appellant’s lumbo-sacral disc, an annular tear, other factors such as facet changes which also accompany the disc space degeneration and narrowing, and other soft tissue problems in and around the lumbo-sacral level. With regard to the latter, Mr Inglis believes that the major contributor to such changes are the genes a patient is born with and, thereafter, many factors may contribute to pain suffered as a result of those changes including various injuries and accidents which occur throughout the patient’s life, the employment a patient undertakes and heavy physical work. Mr Inglis believes that the changes seen in the appellant’s back are long-standing and, certainly, not the result of any single injury or accident. He believes that no one contributor can be held entirely responsible for the appellant’s present problems and that any single injury or accident is a relatively minor contributor to the appellant’s ongoing disability. [15] Earlier specialists involved in this case, namely Dr Nowitzke and Mr MacFarlane, refer to the piano accident as arising out of a history of nagging pain symptoms believed to be principally associated with the appellant’s occupation as a furniture remover. [16] Below, I refer further to the medical evidence. The Submissions for the Appellant [17] Mr Cadenhead helpfully listed the medical evidence to be considered as follows: Letter from Dr A Nowitzke to Dr Hodge dated 12 September 1996; Report of Mr N MacFarlane, Neurosurgeon, dated 17 December 1996; Report of Mr MacFarlane dated 15 March 1997; Report of Dr H Burry dated 22 December 1997; Report of Dr H Burry dated 26 November 1997; Report of Dr C Franzmayr dated 11 May 1999; Report of Dr C Franzmayr dated 3 August 1999; Report of Dr C Franzmayr dated 11 February 2000; Report of Mr G Inglis dated 29 September 2000. 6 [18] Mr Cadenhead then set out his substantive submissions as follows: “5.1 The appellant’s ongoing incapacity and back related difficulties have been caused either: (i) Wholly by disruption of part of the annulus of his lumbo-sacral disc and/or soft tissue damage in the form of strain or partial tear of part of the ligamentous structure of the lumbo-sacral spine in conjunction with chronic somatic dysfunction; or (ii) In part by disruption to the annulus of the lumbosacral disc and/or soft tissue damage and somatic dysfunction as described in (i) above and in part by non specific back pain arising from Mr Gordon’s lumbo-sacral motion segment, the degenerate change as at the lumbo-sacral motion segment not being the substantial cause of the ongoing incapacity or back difficulties, that is, the ongoing degeneration is not contributing approximately more than 75-80% to the ongoing incapacity or back problems. 5.2 The onus in establishing ongoing incapacity and cover rests with the appellant: Te Puna v ARCIC DCA 117/99. However the onus is not great and it is only for the appellant to establish that the ‘effects’ of the accident remain rather than identifying the exact current condition. 5.3 The cause of a claimant’s ongoing incapacity and medical conditions is indivisible. That is, it is only necessary for the appellant to show that in part or to a degree his ongoing incapacity and difficulties flow from the compensatable personal injury by accident: Ngaruhu v CRCIC DCA 113/95. 5.4 If there is a combination of factors both compensatable and non- compensatable contributing to the ongoing back difficulties and if the non- compensatable factors relate to the ageing process, disease or gradual process, then in order for the exclusions in section 10 to apply, they must constitute the substantial reason for the ongoing incapacity and medical difficulties: Booker v ARCIC DCA 205/00. 5.5 The reliance on radiological techniques for arriving at a diagnosis has been commented on in a number of District Court decisions. In short, it has been averted to that radiological findings will on occasions provide evidence upon which to base a diagnosis. Balanced against that they may also provide marvellously seductive images which can be completely misleading: Kydd v ARCIC DCA 269/97, Ward v ARCIC 218/2001. 5.6 A dichotomy arises between musculoskeletal (soft tissue) specialists and orthopaedic surgeons (and others relying on imaging techniques as a principal means of diagnosis) in terms of the method of diagnosis, the anatomical structures considered and the conclusions reached. 7 Bell v ARCIC DCA 261/97 Feldicher v ARCIC DCA 136/98 Herrick v ARCIC DCA 190/98 Kydd v ARCIC DCA 269/97 Ward v ARCIC 218/2001.” The Submissions for the Respondent [19] Mr Hlavac conceded that, on the basis of that history, the piano accident of 1996 has probably triggered the appellant’s back condition and associated pain symptoms to a new stage level, rather than initiating something separate and distinct from the appellant’s pre-existing condition. He submitted that this is the type of distinction referred to by Judge Beattie in Wehipeihana. Accordingly, Mr Hlavac submitted that the appellant’s degenerate back condition has developed through a gradual process, probably through heavy lifting activity, but he has not lodged any claim based on a gradual process injury. He submitted that given that both Dr Franzmayr and Mr Inglis agree that the degenerative changes in the appellant’s back predated his accident in 1996, it is likely that the changes have arisen over a period of time either through natural changes, or as a result of a history of back overuse, or both and he summarised his case as follows: “a) The appellant suffered from back pain symptoms prior to the date of the incident in June/July 1996; b) There is evidence of long-standing degenerative change in the lumbo- sacral disc, particularly at the L5/S1 level, where the appellant is experiencing pain symptoms; c) Such degenerative changes are not infrequently associated with pain in the lumbar spine; d) Such degenerative changes are known to occur naturally through the process of maturation and can also be accelerated by heavy lifting and sudden increases of pressure on the disc; e) It is therefore likely that, given the evidence of pain symptoms pre-existing the date of the ‘accident’ and the general nature of the appellant’s work, the degenerative changes have developed gradually rather than as a result of any specific incident.” Reasons for Decision [20] In simple terms, the appellant submits that the cause of his ongoing pain and suffering is not degeneration, but the result of the injury of June 1996 when he was lifting a piano – apparently, in the course of his job as a furniture remover. Mr Cadenhead submits that this situation is identical to that with which I dealt in Flavell (No. 236/2000) and the question is whether the pain and suffering flows from soft tissue damage at the time of the said accident, or is degeneration; and that the evidence I heard in Flavell was fairly similar to that now adduced before me. The 8 Flavell case does have many similarities to the present case and I note that at pages 12-13 of Flavell I said: “47. The issue is whether the suffering symptoms now experienced by the appellant have been caused by the accident of 23 July 1991 or wholly or substantially by the appellant’s degenerative condition. 48. A frequent dilemma for the respondent, medical advisers and this Court is whether an individual’s suffering is caused by a particular accident or is substantially caused by pre-existing degeneration. At the end of the day, the Court must rely on medical evidence, on the balance of probabilities, although, sometimes, the Court could never be sure of the correct answer; nor could medical experts. However, the latter have suitable skills and experience to advise the Court. Nevertheless, I do not think it necessarily appropriate to rely on the numbers of medical experts espousing one point of view and opposing another. Medical specialisation and experience, of course, are significant factors in assessing the weight of medical evidence, but they are not necessarily compelling or conclusive. I think it dangerous to only consider fashionable or traditional medical views, or to simply take a conservative approach to medical opinion but, on the other hand, one should not reject or over-ride traditional opinion in a cavalier manner. 49. In the present case, the views of the minority of the medical experts, seem to me, to be credible and tenable, and the issue cannot be answered with certainty. The onus on the appellant (to the standard of the balance of probabilities) is to show that his suffering is caused by the accident (s.8). Since there is clear medical evidence of degeneration, this also involves showing that the suffering is not caused, wholly or substantially, by the degeneration (s.10(1)) unless that degeneration is a consequence of the accident injury or its treatment (s.10(1)(c)); and if that suffering has been caused wholly or substantially by the ageing process, it is not covered by the Act (s.10(2)(a)).” [21] As indicated above, the Review Officer heard this matter on 24 February 1998 and issued his decision on 30 April 1998. For the hearing he had available medical reports from Dr Nowitzke, Mr MacFarlane (two reports) and Dr Burry (two reports). Since then there have been three reports from Dr Franzmayr, and one from Mr G Inglis. In many ways there is too much medical evidence and this can tend to confuse matters. [22] Mr MacFarlane is a Neurosurgeon, and Dr Nowitzke was his Registrar at material times. Their evidence seems to mean that, in early 1997, there was mild degeneration in the appellant’s back and that his occupation as a furniture remover could place excessive stress on a lumbar disc. They did not seem to be aware of a particular accident on 20 June 1996. Presumably, their view led the respondent to decline ongoing compensation on 11 April 1997 on the basis that there was no relationship between the appellant’s then back problems and any specific accident. However, in his report of 20 January 1998, Dr Burry took the view that while it was difficult to provide a definite diagnosis, he thought it most likely that the appellant had suffered a disruption of part of the annulus of the lumbo-sacral disc. He seemed to be saying that it was likely that arose in the course of the appellant’s particular job. 9 [23] In his report of 26 November 1997 Dr Burry stated, inter alia, “There is no reason to suppose that Mr Gordon would have developed chronic low back pain had he not damaged his spine while lifting”. [24] All the medical specialists must have had the same problem as the Review Officer, namely, that there is a certain vagueness about the facts of this case, although it must be self-evident that a person moving heavy furniture, as an occupation, is highly likely to strain his back. [25] Not surprisingly, the Review Officer could not find the appellant’s case compelling. He thought it strange that Dr Nowitzke, as an experienced Registrar, was not satisfied that there had been some sort of accident trauma and that neither he nor Mr MacFarlane referred to any piano lifting accident but seemed to deal with the appellant as a man with an ongoing aching low back pain and mild degeneration, but a heavy job in terms of looking after one’s back. [26] In his first report, Dr Burry seemed unsure whether the appellant’s back pain was due to long-term effects of a tear of some fibres of one of the paravertebral muscles, or a tendon or ligament, or was the consequence of disruption of the intervertebral disc at that level. In his later report he concluded that it was most likely that the appellant had suffered a disruption of part of the annulus of the lumbosacaral disc, and that was in accordance with the earlier findings of Mr MacFarlane. Dr Burry felt that he could not discount the possibility that the appellant’s symptoms arose from an unresolved strain or partial tear of part of the ligamentous structure of the lumbo-sacral spinal structure. [27] Then there are three reports from Dr Franzmayr, a Musculoskeletal Medicine expert, who seems to have been retained for the appellant. [28] In his report of 11 May 1999 Mr Franzmayr had seen the appellant and reviewed the history of the injury now material. He ascertained the facts to be that the appellant in the course of his job (with a mate helping him) had picked up a piano, which required to be lifted from a truck and put into a crate, but he spun around to pick up a chair at the same time and felt a sudden pain in his lower back. Inter alia, Mr Franzmayr said that the appellant had all the signs of somatic dysfunction in the lower back and up into the thoracic spine, and he detailed that further in terms of clinical findings and x-ray results. He explained the pathology of somatic dysfunction as the state of restricted movement in a joint or in an array of joints (such as the appellant has) which usually occurs on the basis of a quick jerky movement. Towards the end of his report he says, “The partial lumbalisation of S1 which we can see on the x-ray is a congenital variation of nature and does not cause pain as such, otherwise he would have pain all his life. The described degenerative changes at the Level L5/S1 are such that I estimate he has had this a number of years prior to the accident in 1996.” [29] A little later Mr Franzmayr says that he agrees with Professor Burry when he writes, “It can however be stated with certainty that the presence of ‘dehydration’ of the intervertebral disc is not associated of itself with spinal pain”. 10 [30] Mr Franzmayr then says: “What remains is the chronic somatic dysfunction being typical and the most common reason for pains, chronic or acute, in the lower back. … ” [31] Essentially, in his report of 3 August 1999, he seems to be saying that, according to the Musculoskeletal Medicine way of thinking (which is still relatively new in the medical profession), the appellant’s restricted movement in one or several joints is the immediate result of a physical injury and occurs “the very moment that the patient injures himself or gets injured”. He then says that the dysfunction does not “heal” like an untreated wound or untreated fracture, but remains, and the body adjusts to the injury “with a scoliotic curve, which enables the body to get the joint(s) which are unable to move freely out of the line of force”. [32] In a further report of 11 February 2000, Dr Franzmayr endeavoured to explain about the actual physical injury which caused the somatic dysfunction. He seemed to be saying that there is an initial physical injury which strains the relevant joint and is induced by a quick jerky movement. This over-runs the self-defence mechanisms of the back muscles and this leads to a panic reaction and a chronic persistent increase in the firing rate of the relevant muscle. The spasm in that muscle leads to a persistent restricted movement in the joint (somatic dysfunction) which can continue for years, as in the appellant’s case. [33] I have already made some reference to the 29 September 2000 report of Mr G Inglis, who does not seem to have examined the appellant but has, of course, absorbed all available material. He suggests that the most appropriate diagnosis of the appellant is non-specific back pain, “probably arising from the lumbo-sacral disc”. He says that the x-rays of 8 September 1996 confirm the transitional lumbo-sacral vertebra with long-standing changes at the lumbo-sacral disc consistent with a degenerate process i.e. there is a disc space narrowing and significant osteophytic lipping. He says, “The spine proximal to the lumbo-sacral disc looks normal”. He says that the MRI scan of 6 November 1996 confirms the transitional lumbo-sacral vertebra and the significant dessication of the lumbo-sacral disc and elaborates on that. [34] In terms of Mr Inglis’ opinion he qualifies that as being “very presumptuous” because he has not seen the patient (the appellant) and says: “I feel it is very likely that the major pain generator in his back is the lumbo- sacral motion segment. The contributors to that pain syndrome are impossible to state categorically. There is reasonable support now in the literature though, for the changes seen in Mr Gordon’s MRI of the lumbo-sacral level, that support this as a pain generator. Whether it is the dessicated lumbo-sacral disc, the annular tear or other factors such as facet changes that also accompany the disc space degeneration and narrowing and other soft tissue problems that are in and around the lumbo-sacral level being the major pain generators, is - uncertain.” [My emphasis] 11 [35] Mr Inglis’ report is quite detailed and concludes: “In summary therefore Mr Gordon suffers from nonspecific back pain probably arising from the lumbo-sacral motion segment. Contributing factors to that back pain are multi-factorial. No one contributor can be held entirely responsible for his present predicament. Any single injury or accident in my opinion is a relatively minor contributor to his ongoing disability. … ” [36] Mr Cadenhead submitted that the truth is probably that there has been joint causation of the current pain state of the appellant from both degeneration and the said accident so that, in terms of s.10 of the Act, the indivisibility test arises and I must determine the “substantial” cause of the appellant’s condition. I can agree with Mr Cadenhead’s submission that the cause of the appellant’s ongoing incapacity is “indivisible”. My overall view is to agree with Mr Cadenhead’s submission that the furniture removing accident/activity is at least a substantial cause of the appellant’s ongoing incapacity and suffering. I noted that Mr Cadenhead seemed to be submitting that “substantial” means about 75% of the causations. I would have thought that if one is going to consider such a situation in terms of percentages then, if there were only two known causes, an accident or gradual work process would be substantial at 51% and, if there were a number of causes, could still be a substantial cause if lower than that. [37] Mr Cadenhead submitted that the appellant has shown that his current condition flows substantially from the accident and not from degeneration. Mr Hlavac emphasised that there is clear evidence in this case of degenerative change in the exact area where the appellant is currently experiencing his pain. [38] I can only be strongly guided by credible medical evidence. This is available in this case from a number of specialists and, on the balance of probability, shows me that, prior to the piano accident of 20 June 1996, the appellant is a person who had a degenerative state in his back in the area now causing pain. That degeneration was greatly exacerbated by shifting the piano on that date and, on the balance of probability, must have been contributed to both before and since by his occupation as a furniture remover. The overall medical evidence convinces me that, but for the nature of the appellant’s job, he would not have had back trouble. [39] There was a suggestion from both counsel that perhaps he should have made application to the Corporation on the basis of a gradual process injury. However, the trigger point of his present condition clearly stems from the piano lifting activity of 20 June 1996 and the quite difficult issue is whether or not that has caused his present injury to a substantial degree. [40] In my view, when I stand back and absorb all the evidence (which is mainly medical), I consider that his present condition of pain and suffering still substantially flows from the accident of 20 June 1996. Because of the damage he did to his back on that day by that activity, no doubt caused by weaknesses flowing from his years of lifting heavy objects in his job, that condition has been slow to heal – if it ever will. Certainly, there is also a state of degeneration as the medical witnesses explain. However, that did not cause the pain and suffering of 20 June 1996. Although it must now be a contributor to the state of pain and suffering experienced by the 12 appellant, the substantial cause, in my view, remains that of the lifting of a piano activity on 20 June 1996. [41] It seems that the appellant’s degeneration was not caused by the accident or work process i.e. the general nature of his furniture removal work/job, but that his current suffering is substantially separate from any problems of the degeneration. In other words, it seems to me that, on the balance of probability, the effect of the piano lifting incident of 20 June 1996, or of his work activity around about that time, simply has not healed. I appreciate that Mr Inglis seems to be saying that the said work accident or activity is a minor contributor to the appellant’s present suffering. That is an experienced opinion based on the papers, but it is counter to the experienced views of other medical experts referred to above. [42] On the balance of probability in the light of the overall evidence, one would think that, by shifting heavy furniture and experiencing the rather careless incident of moving to grab a chair at the time of shifting the said piano, the appellant was likely to injure his back. More particularly so, since he (as, apparently, do most of us) already had degeneration to some degree in his back. While I appreciate that the respondent must take people as they are found i.e. there is the eggshell skull principle, at this point the only real issue is whether the effects of the accident or June 1996 work activity, as distinct from any degeneration, are still a significant/substantial cause or contributor to the appellant’s ongoing incapacity and pain and suffering. From the evidence I think, on the balance of probability, that is still the position to a significant/substantial degree. I appreciate, of course, that if the appellant’s work accident or activity had merely aggravated his pre-existing degenerative condition then, once any accident injury had healed, the cause of his present incapacity would be degeneration. [43] Accordingly this appeal succeeds, and I award $1,500 as a contribution towards the appellant’s legal costs. I reserve leave to apply with regard to any consequential matters. ___________________________ Judge P F Barber District Court Judge WELLINGTON dca226-98.doc(aw)