Bell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 266 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ANGELA JANE BELL DCA 267/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at CHRISTCHURCH on the 13th day of November 1997 APPEARANCES: Mr A Cadenhead for appellant Miss J A Goodall for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether there is a causal connection between the personal injury suffered by the appellant in an accident on the 31st December 1994 and the appellant's ongoing symptoms today such as would entitle her to continued cover under the Act. 2 Background Facts On the 31st December 1994 the appellant, then aged 20, suffered an injury to her back in a fall. The initial diagnosis was low back strain and she was referred to physiotherapy. She was certified unfit for work, her employment being that of a shop assistant, and she commenced receiving weekly compensation from 7th February 1995. In March 1995 a second opinion as to the nature and extent of her injuries was sought from Dr McGeogh. He diagnosed lower lumbar spine dysfunction with bilateral sacroiliac joint dysfunction with pelvic rotation. There were signs of quite severe secondary physical and psychological decompensation. The doctor observed that the appellant would need quite intensive assistance to recover and return to the workforce and that recovery may be measured in a small number of months rather than a few weeks. The appellant continued to be unfit for work until June 1995 when she became fit for selected or alternate work. The Corporation provided rehabilitation assistance and she became employed at the New Zealand Document Exchange on light duties. On the 3rd of January 1996 the Corporation received a certificate which indicated that the appellant was fully unfit for work for four weeks. In January 1996 the appellant was referred to an orthopaedic surgeon Mr P J Burn by her GP and he gave his opinion of her condition as follows: "Angela does not have a surgical lesion but I believe suffers from poor posture due to lack of generalised fitness and muscular weakness. This is resulting in ligamentous back pain when she has been standing for prolonged periods of time. 3 Her treatment should be aimed at weight reduction, cardiovascular fitness and strengthening of her abdominal muscles. I have given her some guidelines regarding this. She has been warned that should she have pain shooting down the legs, weakness or bowel or bladder disturbance then she should be seen again by an orthopaedic surgeon. At this stage I don't think there is anything further that I can offer her but I would have thought getting Angela into a fitness programme at a gym would have been the most useful intervention." It was on the basis of that opinion that the Corporation wrote to the appellant on 15th February 1996 advising that the Corporation considered that the cause of her present back problems was not due to personal injury by accident and therefore in accordance with s.73(1) it was cancelling weekly compensation as it considered she was no longer entitled to receive it. The appellant sought review of that decision and represented herself at the review hearing on 23rd July 1996. Prior to that review hearing a radiology report was received which was regarded as unremarkable. A further opinion from Mr Burn was obtained and he stated in a letter of 23 May 1996: "Angela's ongoing incapacity would certainly be related to her increased body weight at 15 stone, poor posture and lack of cardiovascular fitness. I would expect that if we did a magnetic resonance scan of her back we would almost certainly see damage to the lumbosacral disc, most likely on her T2 weighted images with desiccation of this disc and I think that her back pain is disc related. Whether she had an alteration to the normal disc before her fall and it was the fall which was a final precipitating event to back pain one can only postulate. In conclusion from the historical perspective the back pain onset was following : this injury." 4 The Review Officer in his decision concluded that the appellant's ongoing back problems were not connected with her injury. He relied on the opinion of Mr Burn as stated above. For the purposes of the appeal to this Court the appellant obtained further medical opinion from Professor Hugh Burry and his reports constitute the only additional evidence from that which was presented at the review hearing. Legal Considerations In order to receive ongoing entitlement under the Act the appellant must establish on the balance of probabilities that there is a causal link between her current condition and the injury sustained in her accident on 31st December 1994. The evidence to satisfy that onus is wholly medical. Furthermore it was submitted by the appellant that in establishing that causal connection it is not necessary for it to be shown as being the only cause. It was submitted that incapacity as defined in s.37 is indivisible and that providing there is a causative link it does not matter that other causes may have contributed to the overall incapacity. The decisions of Campbell (113/95), Carroll (72/97) and Miller (130/97) were cited as authority for that proposition. Decision As noted, the additional evidence available to this Court for the purposes of appeal consists of the three reports of Professor Burry, the first dated 1st April 1997, the second dated 29 May 1997 and the third dated 23rd September 1997. Because of the preeminence of Professor Burry in this particular field I take the view that his opinion carries great weight. In his report of Ist April following his examination of the appellant he noted as follows: 5 "Ms Bell stands with normal posture and has no visible abnormality on inspection of her spine. She achieves a full range of movement in the lumbar spine, but is tender at the lumbosacral level. She has good abdominal muscle function, being able to sustain bilateral straight leg raise and situp from supine lying for five seconds. There is no indication of nerve root entrapment, sciatic and femoral nerve stretch tests being negative and no neurological abnormalities being present. Xrays have not indicated the presence of any abnormality which could be expected to cause chronic back pain. Comment Ms Bell gives a history of having fallen awkwardly and heavily and developing increasing back pain following this event. She states that her back had never been a problem prior to this event. She has now returned to a number of physical activities which could be expected to maintain her overall physical fitness and maintain the function of her lower back. In particular, she now has good abdominal muscle support. My impression is that the physical limitations imposed by the accident are now minimal and that she should be able to carry out full time work, of the type that she is currently engaged in, in the future. Nevertheless, it is clear that over the past two years she has suffered from low back pain which has prejudiced her vocational activities and ability to earn and the nature of the accident that she suffered would be consistent with the development of low back pain." In a letter further clarifying that report he reported on 29 May 1997 as follows: '(a) My statement in my report 'the limitations imposed by the accident are now minimal' was based on the information given me by Ms Bell about her current activities. She still experienced back pain, she stated, and was therefore certainly not asymptomatic, but it seemed from what she told me that she was currently involved in a normal range of activities for a young person. 6 (6 ) The only evidence of dysfunction or injury at my examination was tenderness at the junction between the lumbar spine and the sacrum. This tenderness was not accompanied by any disturbance of range of motion in the spine nor has any gross structural change been detected by radiological means. I concluded that the tenderness indicated postural strain which was probably precipitated by the fall and contributed to by overweight and a tendency to lordotic posture. However, her current activities with attention to abdominal muscle tone were likely to minimise this. I should add that identification of the cause of lumbar pain is in the vast majority of cases speculative. (c ) Since Ms Bell did not suffer from back pain prior to the accident, and has done so since, it is reasonable to conclude that the impact of her fall and probably a twisting of the spine, caused a strain of the tissues at the lumbosacral level. Ms Bell's posture and cardiovascular fitness have improved, apparently, with some improvement of her back pain and her degree of obesity is not sufficient to account for her ongoing back pain per se. Therefore, some residual effects from the accident involving the soft tissue at the lumbosacral junction seem the most likely explanation." Finally in a letter to the appellant's counsel dated 23rd September 1997 he advised as follows: "Further to my letter of 29 May 1997, I can confirm that soft tissue injury appears to be a common result of acute or chronic lower lumbar back strain accounting for the chronic or episodic back pain that may occur in such circumstances. Soft tissue injury usually does not produce any recognisably abnormality on radiographs or other imaging techniques that might be employed. The propensity for imaging procedures to confuse rather than enlighten in the evaluation of back pain has recently been highlighted by Professor Deyo in The Journal of Back and Musculoskeletal. Rehabilitation 1993, 3(4): 1 - 13 and previously by such authorities as Professor Hadler (Hadler, Nortin M. 'Regional Low Back Pain without Radiculopathy', in Occupational Musculoskeletal Disorders, 1993 Raven Press, New York, page 80) and JH Cyriax (Cyriax JH, Cyriax PJ. 'Diagnostic Problems: The X-ray' in Illustrated Manual of Orthopaedic Medicine, 2nd Edition, Butterworth Heinemann, page 3). The precise nature of the lesion which causes the pain remains unknown due to the difficulty in accessing tissue for pathological analysis." It is to be remembered that the appellant, aged 22 at the relevant time, had no previous history of any back problem and the xrays showed no unusual conditions, that is she was not suffering from any degenerative condition. Mr Burn in his report of 30th January 1996 put her present condition down to poor posture due to lack of generalised fitness and muscle weakness. He further stated on 23rd May 1996 that her ongoing incapacity "will certainly be related to increased body weight at 15 stone, poor posture and lack of cardiovascular fitness." It is noteworthy to observe that further on in that report Mr Burn states "In conclusion from an historical perspective the back pain onset was following this injury." The medical evidence is quite conclusive that the appellant's fall which was the accident, brought about the onset of back pain. Professor Burry is of the opinion that the type of accident she suffered would be consistent with the development of low back pain. In his later report of 29 May he stated that the tenderness indicated postural strain which was probably precipitated by the fall and contributed to by overweight and a tendency to lordotic posture." Professor Burry considered it reasonable to conclude that the impact of the fall and probably a twisting of the spine caused a strain of the tissues at the lumbosacral level. He considered that her degree of obesity was not sufficient to account for her ongoing back pain per se. 8 He therefore came to the conclusion that the appellant was still suffering from the residual effects of the accident involving soft tissue at the lumbosacral junction. As is to be noted in his further report of 23rd September he confirmed that soft tissue injury appears to be a common result of acute or chronic lower lumbar back strain accounting for the chronic or episodic back pain that may occur in such circumstances. It is of course the task of this Court to analyse the medical evidence and place it as it were on the scales and determine on balance which is the more probable. The appellant's fall did cause an injury to her back which in turn brought about the onset of back pain. The examination of her by Dr McGeogh is helpful in that it was conducted about two months after the date of the accident. The injury was real and the pain was real. When she was examined by Mr Burn in January 1996 he observed that the xrays showed that no abnormality and on that basis because she did not have a surgical lesion he considered that the only reason for her back pain was her poor posture caused by being overweight and lack of fitness. This opinion is repeated in his later report even though, as I have already noted, he accepts that the onset of back pain followed her injury. Mr Burn is looking at the matter from an orthopaedic surgeon's point of view and basing his opinion as he does on the xrays which tell him that there is no abnormality which could be a cause of the pain. In contrast to this Professor Burry is looking at the matter from a musculoskeletal perspective. Professor Burry is of the view that the appellant sustained a strain of the tissues at the lumbosacral level and that this soft tissue injury continued to persist. Such an injury would not show itself on any radiographs or other imaging techniques. He is definite when he says that her degree of obesity is not sufficient to account for her ongoing back pain per se. 9 Whilst the medical evidence does not rule out the particular physical characteristics of the appellant, the law requires that "you take the appellant as you find her" and the real likelihood is that the appellant's recovery has not been assisted by the features of obesity, poor posture and lack of muscular fitness. Having regard to the fact that Mr Burn is only able to postulate posture, obesity and unfitness as being the reason why pain persists, I find that he does not say that it is the only cause as he is driven to accept that the reason for the onset of pain was the fall and the resulting back injury. Thus I find that in the final analysis his opinion does not necessarily clash with that of Professor Burry, it is just that Professor Burry's opinion looks into the matter in considerably more detail in relation to the likelihood of a continuing soft tissue injury. On the basis of his opinion I find that the appellant has established on the balance of probabilities that there is a causal connection between the back injury sustained in her fall on the 30th of December 1994 and the continuing symptoms of back pain which she had been experiencing down to the date of the review hearing and thereafter. Accordingly I rule that the decision of the Review Officer must be revoked and the appellant is entitled to continued cover under the Act. The appellant being successful I award costs to her of $800 plus disbursement as fixed by the Registrar. DATED at WELLINGTON this 18 day of December 1997 M J Beattie District Court Judge Bell.doc KD