Young v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 38 95' UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ANNE KAY YOUNG of Napier 68 / 94 0043 Appellant (Appeal No. DCA 256/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent. HEARD on the 21st day of March 1995 APPEARANCES D Johnson for appellant G L Gowland for respondent DECISION OF JUDGE A W. MIDDLETON The issue in this appeal is whether the respondent was correct to cancel the payment of weekly compensation to the appellant on 20 June 1994. The appellant suffered an accident on 29 November 1991 when she fell and injured her hip and fractured her pelvis. It appears that that accident followed an accident in October 1991 when the appellant had slipped on a wet floor and suffered a sprain to her left hip. Prior to these accidents the appellant had an abnormal gait due to cerebral palsy, but had been able to move freely and without significant difficulty. 2 In November 1993 the appellant was examined by Mr G J Taine, an Orthopaedic Surgeon, for the purpose of assessing disability for awards under ss.78 and 79 of the Accident Compensation Act 1982. Mr Taine's assessment of permanent partial disability in relation to both falls was 12.5% and the respondent made an award of $10,000 under s.79. The appellant continued to receive Earnings Related Compensation until the respondent notified her on 20 June 1994 that, pursuant to s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992, the respondent considered that the appellant was no longer incapacitated as a result of her accident and that further payment of weekly compensation would cease on 20 July 1994. The appellant applied for a review of that decision. It is clear from Mr Taine's report of 18 November 1993 that "Miss Young also suffers from the effects of cerebral palsy causing marked spasticity and difficulty in use of each leg and probably also the right arm. This problem has made her walking difficult and she has had surgery in the past, to overcome some of the disability, but she still walks with difficulty, requires the effort of a stick and has a typical spastic gait and walks with each knee slightly flexed." Mr Taine considered that the appellant would require continual care when moving and she had to give up her work as a school teacher, although she was able to do some domestic work around her home. Mr Taine concluded his report: "The extent of her present disability in relation to working, must also be doubtful, as only part of her present disability can really be considered to have arisen from the effects of these falls at this stage." In April 1994 the appellant underwent a Pathways assessment which concluded: "Anne is restricted functionally in all aspects of daily living tasks, leisure and vocational activities, primarily by her cerebral palsy. The pelvic fracture has contributed to Anne's ongoing mobility problems as well as restricting her earning capacity. She has lost considerable confidence and is aware of the financial restriction while she is unable to return to the workforce. Anne may experience considerable difficulty and delay obtaining employment through the usual agencies and should therefore consider initially volunteer work where she is able to utilize her teaching, caregiving and reception skills. Anne is comfortable working with people of bicultural background and all age groups. Anne is restricted by lack of independent transport but she is currently attempting to rectify this problem." A file note dated 16 June 1994 from Dr K Bremner, the respondent's Assistant Corporate Medical Advisor, states: 'I note from Mr Taine's report of 18 November 1993 that Ms Young earlier fractures have healed well, she has only slight tenderness over the left pubic ramus 3 and there is no detectible deformity. Her hip movements were found to be free and painless, with limitation arising only from her generalised spasticity. There would therefore appear to be no residual disability arising from her earlier injury and it would seem appropriate to discontinue any entitlement to forther (sic) accident compensation." When the appellant received the notification from the respondent she obtained a report from her general practitioner, Dr Sheardown, which is dated 28 June 1984. That report states: 'I refer to your letter dated 20th of June 1994 concerning discontinuation of entitlement to ACC in accordance with ARCIC Act section 73. Anne slipped on a wet floor carrying a heavy roll of school paper in early October 1991 and sustained a severe sprain of the left hip area which was registered under ACC. She suffered a further injury on the 29th November 1991 when she fell when negiotiating (sic) a soft lawn and tripped falling heavily onto her left hip area and fracturing her pelvis. Prior to that date Anne had an abnormal gait due to cerebral palsy with her right sided hemiplegia. Nevertheless she was fully mobile with free movement of her left hip with a full range she moved without significant difficulty requiring no form of mechanical support Whilst it is true that her xrays show that her bony fractures have reunited, unfortunately Anne is left with a permanent disability affecting her left hip and spine area directly related to these two injuires (sic). Her left hip provides her with a continuous aching pain radiating from the left groin through to the left buttock. At times it radiates through into the base of the spine. She finds a reduced range of movement of the left hip and a persisting stiffness. This has significantly altered her gait and that she is now no longer fully mobile, requires continual use of a mechanical aid for all movements and also requires regular medication in order to alleviate her condition. There is no doubt in my mind as her General Practitioner that Anne has suffered a secondary lowering of her mood in relation to the continuous pain since these injuries in 1991. She has required anti-depressant therapy to assist her with these secondary mood changes. I note in her Pathways assessment dated 12th of April 1994 that the assessment states "Her pelvic fractures aggravate her condition and interfere especially with her walking and they also affect her lower back". They (sic) further document her changed posture and her requirements for mechanical aids. They also highlight the abnormal findings when examining the pelvis, groin and lower back. I would take issue with your report of the 20th June 1994 which states that due to the fact that Anne's bony fractures have healed she is no longer entitled to accident compensation." The respondent then arranged for the appellant to be examined by Mr S J Phillips, an Orthopaedic Surgeon, who reported on 21 July 1994 and gave as his opinion: " There may be several predisposing factors here to osteoporosis and this osteoporosis probably is the reason for her fracturing the pubic rami with the fall. The nature of this fracture is in fact very benign and indeed she actually returned to work with the healing fracture before the fracture was diagnosed on xray. I would normally expect mobility to progress with this type of fracture after about 10 days to 2 weeks, depending upon the fitness of the patient. I think the likely cause of on-going discomfort and pain may well be early osteoarthritis change in the left hip. This has not been associated with the fracture or the fall. Other problems of increased weakness, increased loss of coordination etc, cannot be attributed to this fracture. 1) In reply to your specific request for comment I believe that her current condition bears no relationship to the injuries sustained in the accident. 2) She is unable to return to her pre-accident employment as a teacher for reasons stated above, these are not related to the accident. She would only be able to undertake sedentary employment." The Review Officer heard evidence from the appellant and had the benefit of all the medical reports to which I have referred. She concluded that on the basis of the medical reports, the respondent had come to the correct conclusion in spite of the allegation from the appellant that Mr Phillip's consultation had only been brief. Mr Johnson submitted that Dr Sheardown's report is comprehensive in setting out the appellant's pre-accident condition and his condition since the accident. He submitted that it is not open to the respondent to ignore the contents of that report as Dr Sheardown was the only person able to report accurately on the appellant's pre-accident state. He submitted further that he did not consider Mr Phillip's report to be impartial and fair. He submitted further that it was inappropriate for a specialist to give a detailed opinion of the appellant's condition without prior knowledge of her condition, especially her pre-accident condition. Ms Gowland submitted that the Review Officer was entitled to uphold the respondent's decision on the basis of the medical reports which were then available. She submitted further that even though the appellant may have been free of symptoms prior to the accident and had subsequently experienced the symptoms of which she now complains, it does not necessarily establish that the 5 accident was the cause of the injury. There is a need to establish such a causal connection which can only be established on the medical evidence, and in support of that submission, referred to the decision of the Appeal Authority in Burrows (105/91). Medical evidence, particularly that of the specialists, clearly indicates that the appellant's ongoing problems are the result of her pre-accident condition and not the result of the accidents. While the appellant disputes Mr Phillip's assessment it is difficult for the Review Officer, and for the Authority, to overlook his very clear opinion that her current problems are not the result of the accident, but of her pre- existing condition. This is more persuasive also because it is supported by Mr Taine's assessment. Mr Taine said there was "minimal deformity from the healed fractures" and that "the most marked feature of this x-ray examination is of considerable osteoporosis which is of a generalised nature". Mr Taine considered "her general state and difficulties have possibly been worsened by these falls etc and she has become more disabled, which fact may have contributed to some extent by her aging, generalised osteoporosis, although the cerebral palsy itself, would not likely to have been worsened." He then confirmed his original assessment of 12.5% disability "although it is very difficult to assess the actual affect of this lady's injury.". Mr Johnson submits that because Mr Taine has assessed a permanent partial disability of 12.5%, it must follow that the accident is the cause of the appellant's present difficulties. When one takes Mr Taine's assessment with the subsequent report of Mr Phillips which confirms a complete healing of the fractures and his statement that the accident may well have aggravated the pre-existing degenerative disease, it is difficult to go beyond the totality of the medical evidence. The Review Officer fully canvassed the appellant's evidence and the medical reports and confirmed the respondent's original decision. The onus is on the appellant to show that the Review Officer in some way erred in making that decision and I do not consider that she has satisfied that onus. The appeal is dismissed. DATED at WELLINGTON this day of APRIL. 1995 Judge A W Middleton dc256-94.doc(mh)