Sutherland v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 169 199 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 ANTHONY SUTHERLAND (DCA 430/98) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSRUANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of March 1999 APPEARANCES Ms M Watson advocate for appellant Mr A D Barnett counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to determine that the appellant's present incapacity was no longer causally connected to the personal injury by accident for which he had cover, thereby entitling the respondent to cancel the appellant's weekly compensation pursuant to section 73(1) of the Act. 2 BACKGROUND The appellant was at the material time aged 48 and was employed as a butcher at the Malvern Abattoirs. On the 21 of January 1997 the appellant suffered an acute low back sprain when he slipped and fell. He consulted his GP, Dr Shortt, on the following day and was certified as being unfit for work. The appellant continued to be unable to return to work and in May 1997 he was referred to Mr John Talbot, Orthopaedic Surgeon, for assessment. Mr Talbot had the benefit of previous x-rays taken of the appellant's back in 1984 and 1988 and in respect of those x-rays he noted: "The clinical information provided by the doctor at that time states, 'long history of low back ache. Now associated with paraesthesia of lateral aspect of right thigh. Movements of lumbar spine and right hip normal. Early osteoarthritis.' -- -- -- The x-rays were reported as showing no definitive degenerative changes in the hips although the joint spaces were reported as being rather narrow which could indicate some early cartilage thinning. Minor degenerative changes were noted at the L3-4 level of the lumbar spine where there were osteophytes and there was also narrowing of the lumbosacral disc space.' He had further x-rays of his lumbar spine on 31.5.88 where the clinical history states that he had a very heavy fall on to a metal bar across the lower lumbar region and developed a large haematoma. X-rays at this stage were reported as showing degenerative lipping of the vertebral bodies which had shown a slight advance and there was now marked narrowing of the lumbosacral disc. A CT of the lumbar spine requested by Mr Inglis in 31.10.88 revealed an obviously degenerate lumbosacral disc with slight bulging on the right side and slight narrowing of the intravertebral foramina although the appearances were not particularly specific." Mr Talbot went on to conclude: "It is obvious from the previous clinical information and x-ray reports about this man that he has a long-standing history of back problems and the recent injury was really just an aggravating incident. It should be noted that the 1984 x-ray request mentioned "long past history low back problem". We are therefore looking at somebody aged 48 who may have had low back problems for approximately 20 years." On the 14" of July 1997 Dr Shortt wrote to the respondent concerning Mr Talbot's report and he said: sutherland.doc (sp) 3 It is true that Tony's present predicaments cannot be blamed entirely on his accident of the 21.1.97, however, his records from general practice leave absolutely no doubt about the fact that he has suffered a long string of injuries in association with his work and I am in little doubt that the accident on 21. 1.97 was the "straw that broke the camels back." On the 23 October 1997 the respondent issued its decision advising the appellant that his entitlement to weekly compensation was being cancelled on the basis that his ongoing back injury causing his incapacity was now related to his long-standing pre-existing degenerative condition and not as a consequence of personal injury by accident. The appellant sought a review of that decision and for the purposes of that review his GP sought a further opinion from Mr J Evison, Orthopaedic Surgeon. Mr Evison reported on 16th January 1998 stating: "I believe that although it is not possible to make an absolute connection between the episodes of repetitive trauma he sustained in his job as a butcher during the 80's and his failed lower lumbar segments, he did have a number of severe injuries followed by symptoms suggesting disc injury. He was thought on a number of occasions on clinical grounds to have sustained herniations. Disc herniation frequently follows traumatic injury and appears to mark the beginning of degenerative change in a lumbar segment in a number of individuals. It is therefore entirely possible that his lower lumbar degenerative change began with and has been accelerated by repetitive injury although I am unable to prove this." At the review hearing it was the general thrust of the appellant's submission that he had suffered a series of back injuries over the years and that these injuries had contributed to his disc degeneration and that the latest injury in January 1997 was the straw which broke the camel's back. In particular, the injury in January 1988 was stated as being a significant injury affecting his lower back. Because of this submission the review officer obtained the file relating to the appellant's 1988 back injury. From that file it was disclosed that the appellant suffered a fall on the 19th January 1988 when he fell back on to a metal bar. He suffered a significant haematoma as a consequence of this injury and was incapacitated for some period. At that time he was referred to Mr G S Inglis, Orthopaedic Surgeon and in Mr Inglis' report to the respondent he stated: "I saw Mr Sutherland on 30.6.88. At the time I noted advanced degenerative changes at the 5-S1 level and elsewhere in his lumbar spine. I felt on that occasion that he was also probably suffering a degree of stenosis at the 5-S1 level with intermittent leg pain ... 4 I do not feel ACC should have a longstanding ongoing responsibility for his back as undoubtedly most of his symptoms are due to the degenerative disease and more impending root canal stenosis. In response to this evidence Dr Shortt provided a further report to the review officer stating: "Mr Sutherland was functioning well despite a past history of back symptoms. He had a very significant fall in January 1988 accompanied by a change in x-ray appearances, marked clinical signs and subsequently recurrent disability. Despite this frank history he was returned by his employer to a work environment which remained and probably still is, hazardous. Subsequently there are a series of significant work place incidents which were accompanied by exacerbation of signs of a disc lesion which first appeared in January 1988. Eventually after continued insults, the work place accident in January 1997 finally results in permanent incapacity. It is my opinion whilst this man had pre-existing back symptoms prior to 1988 he had proof that there was never any significant functional incapacity. His present predicament is therefore a result of his various work place incidents. Whilst he had evidence of pre-existing osteoarthritis this has never at any time been shown to be anything other than symptomatic disturbance rather than functional disturbance." In his decision the review officer found that he was satisfied, particularly from the reports of Messrs Inglis and Evison that it was the degenerative condition of the appellant's back which was causing the current problems rather than any accident injury in 1988 or 1997. The appellant has appealed against that decision to this Court. For purposes of appeal to this Court the respondent sought further opinion from Mr Talbot and the appellant sought leave to adduce further evidence from Dr Shortt. This latter evidence was heard by me viva voce by written brief and cross-examination. In counsel for the respondent's request for further advice from Mr Talbot she outlined to him that it was the appellant's GP's contention that it was a number of accidents to the appellant's back which caused his present condition rather than the degenerative change and she sought the opinion from Mr Talbot as to whether Mr Sutherland's ongoing back problems were likely to be wholly or substantially caused by the underlying degenerative condition and if so did he consider that such degeneration was as a consequence of injury to the spine. To that request Mr Talbot replied as follows: "I am replying to your letter of 19" January requesting my opinion particularly concerning Mr Sutherland's ACC eligibility with respect to his back problems. I have only seen this man once, on 29.4.97. However, I have read the report which I wrote following that consultation. In addition, I have carefully read the documents you sent me including letters from Dr J 5 Shortt, the patient's GP, a report by Mr Jeremy Evison dated 16. 1.98, and a letter from Dr Peter Airey from 1997. I understand that the Corporation has declined ongoing cover for Mr Sutherland on the grounds that the substantial cause of his back pain was due to degenerative change. You have asked for my opinion under the following headings. Whether you consider that the ongoing back pain experienced by Mr Sutherland is likely to be wholly or substantially caused by the underlying degenerative condition? I believe that Mr Sutherland's back pain is due to a degenerative condition affecting his lower lumbar spine, but I feel that this degenerative condition may, at least in part, be a result of the nature of his work over the years, and repeated trauma to his lower back. I agree entirely with Mr Jeremy Evison when, in his very succinct and fair appraisal of Mr Sutherland's ACC eligibility, he says, "It is not possible to make an absolute connection between the repetitive trauma he describes and his current problem - but there certainly may be some connection." I do not believe that I can take it any further than that. I read with interest Dr Shortt's letter of 23.6.98 in which he discusses Mr Sutherland's lumbosacral disc space narrowing. He states that he has little doubt that the marked narrowing of the lumbosacral disc in the 31.5.88 x-ray is related to the violence of the 19. 1.88 fall. I do not feel that one can be as dogmatic as that. The lumbosacral disc was already observed by the radiologist to be narrow in the 1984 x-ray. In my opinion it progressively narrowed subsequently. From my experience, I think that this is a more likely explanation of the marked narrowing of the disc than by a sudden acute disc injury on 19. 1.88, but again one just cannot say. Again, I read Dr Airey's remark about clinical signs and the fact that he was sure the patient was not faking S1 sensory signs. The patient may well have had S1 sensory disturbances when he saw Dr Airey but that could have been due to pre-existing lumbosacral disc pathology. We know the disc was narrow previously, and, if he did have S1 signs, I just don't think you can definitely say that it was due to a disc prolapse on 19.1.88. Certainly I found no sensory loss when I examined the patient on 7.5.97 and nor did Jeremy Evison in his examination of 16. 1.88. Having made these observations about Dr Short's report, I must admit that I read it carefully and with interest. I have seen this patient only once, whereas Dr Shortt has seen him many times. It is my opinion that, in a case like this, ACC should take into consideration the fact that Dr Shortt has had repeated contact with this man over a number of years and has seen him following various injuries. Having read his report, I could certainly be persuaded that Mr Sutherland's current condition was partly attributable to the accident described and also to a gradually process injury due to the nature of his work over many years." Dr Shortt gave evidence before me in which he stated that until his fall in 1988 the appellant had never had any time off work but that this fall caused him to be off work for three weeks. 6 Dr Shortt said that this 1988 injury caused an extensive fluctuat paraspinal haematoma. He said that the size of this haematoma indicated that the fall and injury which the appellant sustained was of considerable severity. Dr Shortt went on to state that it was from that time onwards that the appellant commenced to experience functional disability because of his back. Dr Shortt stated that he considered that substantial and significant damage to the appellant's disc had occurred at the time of this fall and that this was the reason for the significant increase in the degeneration which had shown on the 1988 x-rays. He stated that it was his view that the level of change was greater than for average wear and tear over those four years. It was Dr Shortt's evidence that a considerable proportion of the degeneration to his spine was as a consequence of the trauma and that it was trauma induced degeneration as opposed to the degeneration from the aging process. It was Dr Shortt's opinion that 80% of the degeneration, as disclosed in the appellant's present back condition, was as a consequence of trauma and that it was the incidence of trauma that caused the acceleration of the degenerative change. Dr Shortt stated that he considered that he was the best person to give an opinion on this appellant as he had been his GP and medical advisor throughout the eleven years that elapsed since that severe injury in 1988 and during which the appellant had suffered numerous minor back injuries in the course of his work. Finally the Court received two brief statements from Consultant Rheumatologists who both stated: *1. Osteoarthritis is a condition of complex etiology. 2. Osteoarthritis most certainly does not always result from natural wear and tear or the aging process 3. Accidental injury may play a major role in the causation of osteoarthritis at a particular site. 4. In the case of a significant fall, the acute appearance of $1 root signs at the time of the fall, and marked deterioration of x-ray appearance of an L5/S1 disc space, is much more likely to be the result of an acute trauma than the natural progression and history of osteoarthritis." DECISION Both counsel recognised that the determination of this issue called for a consideration of the medical evidence and that the issue was essentially a medical question. In terms of the law the appellant is entitled to cover for so long as he can establish that there is a causal connection between his ongoing back problems and the personal injury by 7 accident for which he was granted cover. In this present case it is the respondent's contention that the appellant's present condition is wholly or substantially caused by the degenerative osteoarthritis changes in his spine which has occurred by the aging process and not as a consequence of the trauma of any injury. If that submission is found to be valid then cover for the appellant is excluded by virtue of section 10 of the Act. It was the evidence of Mr Talbot in his report of the 7" May 1997 that the appellant's injury of 21" January 1997 was an aggravating incident of his long-standing back problems. It was the evidence of Dr Shortt that this January 1997 injury was "the straw that broke the camel's back." Dr Shortt has documented the appellant's case history as it has been known to him since 1984 and it is from that time that there is a radiological record of his lower back. The evidence from x-rays in 1984 established the appellant as having minor degenerative changes at the L3-4 level of the lumbar spine and there was a narrowing of the lumbosacral disc space. In January 1988 the appellant suffered a severe trauma to his lower back when he fell on a metal bar suffering a substantial haematoma and Dr Shortt gave evidence of examining him and treating him for that. X-rays taken in May 1988 showed the degenerative lipping of the vertabal bodies which had shown a slight advance and there was now a marked narrowing of the lumbosacral disc. When the appellant was seen in January 1998 by Mr Evison it was his evidence based on his examination and radiological findings that the appellant suffered mechanical low back pain due to the failure of the L4-5 disc and there was L4-5 central foramenol stenosis secondary to the failure of the L4-5 disc. It was the thrust of Dr Shortt's evidence that there were two processes affecting the appellant's lower back, namely, normal wear and tear through the aging process and the damage caused by trauma from accident. Or Shortt highlights the statements made in the x-ray report of 1988 where it stated that the degenerative element of osteoarthritis showed only a slight advance which was in contrast to the now marked narrowing of the lumbosacral disc. Dr Shortt stated that this was consistent with the expected degree of progress that the degenerative element would have taken in the four years between the two sets of x-rays and the acute deterioration consequent upon his violent fall some five months before the 1988 x-rays were taken. To emphasise this further Dr Shortt advised that the appellant was entirely functional with no problems up until the fall and that it was only following the fall and for the years subsequent that the appellant has suffered functional problems. It was his contention that this did not simply occur because of the gradual degenerative process suddenly manifesting itself. It is accepted that osteoarthritis does not always result from natural wear and tear with the aging process and that it can be caused or accelerated by trauma. As noted by Mr Evison disc herniation frequently follows traumatic injury and appears to mark the beginning of the degenerative change in a lumbar segment in a number of individuals. In the case of the appellant two Consultant Rheumatologists to which the matter was referred both indicated that the acute appearance of S1 root signs at the time of the fall and the marked deterioration of the x-ray appearance of the LS-S1 disc space is more likely to be the result of an acute trauma than the natural progression and history of osteoarthritis. In his opinion Mr Evison advised that it was entirely possible that the appellant's lower lumbar degenerative change began with and has been accelerated by repetitive injury. He conceded that this could not be proven but I find for the purposes of this appeal absolute proof it is not required. The standard is on the balance of probabilities In addition to the advice of Mr Evison it was the opinion of Mr Talbot that the opinion of Dr Shortt should be respected and whilst he couched his advice in careful terms he could certainly be persuaded that the appellant's current condition was partly attributable to the accident described. As previously noted Dr Shortt came to his opinion by an analysis of the x-rays and of his view that the marked narrowing of the lumbosacral disc, which has continued on and is identified by the more recent examinations, was not caused by natural degenerative change but by the trauma of January 1988. Dr Shortt put the assessment of injury from trauma as being 80% of the course of the appellant's present incapacity with the natural degenerative change being only responsible for the balance. Having seen and heard Dr Shortt give his evidence I find that his manner of giving it was both sincere and impressive and in the final analysis I find that his opinion has the guarded endorsement of Mr Talbot and Mr Evison. The evidence to the contrary is that of Mr Talbot in his earlier report and that report must now be looked at in the light of his later report which he made having the benefit of the reports from Dr Shortt and Mr Evison. I have considered the report of Mr Inglis given in 1988 but find that his report was not addressing the issue in this appeal and that it would be quite likely for him to come to that opinion when no contrary proposition was being put to him and he does not even address 9 any possibility of the January 1988 back injury having some causative influence on the marked narrowing of the appellant's lumbosacral disc. Section 10 of the Act excludes entitlement to cover where the personal injury is caused wholly or substantially by disease or the aging process. Weighing up the evidence as I must, I find that the medical evidence does not establish that this appellant's present incapacity is wholly or substantially due to disease or the aging process. It is the appellant's task to establish on the balance of probabilities that he is entitled to continuing cover in respect of his personal injury by accident and I find on balance that the appellant has discharged that onus. Accordingly I find that the injury suffered by the appellant in January 1997, being an aggravation of the personal injury by accident suffered by the appellant in January 1988, is a direct and substantial cause of his present incapacity and that whilst it must be accepted that the degeneration from the aging process is present and continues, nevertheless the effects of personal injury are still present in a causative and substantial way with his present incapacity. For the foregoing reasons I rule that the decision to cancel the appellant's entitlements under the Act was wrong and the decision to cancel his entitlements is hereby revoked. The appellant is entitled to costs which I fix at $800, together with any witness expenses associated with the giving of evidence by Dr Shortt. DATED at WELLINGTON this 1 st day of July 1999. MJ Beattie District Court Judge