Upchurch v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 290/2004 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN B UPCHURCH Appellant (Appeal No. AI 99/04) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on 23 August 2004 APPEARANCES/COUNSEL Mr D Wadsworth for Appellant Mr A D Barnett for Respondent RESERVED JUDGMENT OF JUDGE J D HOLE Issue 1. The issue is whether the decision of the Corporation of 21 June 2004, declining a claim for weekly compensation/ongoing incapacity in respect of a back strain suffered by the appellant on 16 January 1997, was correct. In particular, the question arises whether there is a causal connection between the covered injury and Mr Upchurch’s current back complaint and incapacity. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/290-2004.doc 2 Background 2. On 16 January 1997, Mr Upchurch sustained a back injury whilst operating a hula saw. On the third day of operating this saw he experienced sudden low back pain with radiation down his left leg. Over the following weekend he was virtually bedridden as a result. Subsequently, a burning feeling down his left thigh developed and remained so for some months. 3. Mr Upchurch has a history of back problems. The general consensus of opinion of most of the medical experts is that his current problems are degenerative in origin and cannot now be said to result from the accident. Legal Position 4. The legal position is well established: (a) An appellant who is in receipt of entitlements under the Act, pursuant to an accepted claim for cover, is only entitled to continue to receive those entitlements for as long as he continues to suffer the effects of the original personal injury for which cover was granted; (b) Where an appellant’s ongoing incapacity is no longer causally connected to the personal injury for which he has cover, but is instead caused by an “excluded” condition, then he has no right to continued entitlements and these can be suspended pursuant to s 117 of the Act. (c) An excluded condition has the following effect. A person who has cover for a personal injury under the 1982 Act is entitled to a continuation of entitlements unless it is established that his current condition is exclusively caused by a degenerative condition. A person who has cover under the 1992, 1998 or 2001 Acts is entitled to a continuation of entitlements unless the current condition is wholly or substantially caused by a degenerative condition. (d) Accordingly, if an appellant can establish that the effects of the injury suffered are still present and are causative, even contributorily causative, of the existing incapacitating condition, then the appellant has a right to continue to receive entitlements under the Act for that condition. On the other hand, where the medical evidence establishes 3 that the effects of the injury by accident have resolved or become inconsequential, then those ongoing symptoms are not causally connected with the injury caused by the accident. In those circumstances, the appellant has no right to continue to receive entitlements under the Act for that injury. See Fowlie v ACC (HC 4/10/2000, John Hansen J, Wellington, AP 50/00); Shaw v ACC (17/00); Hill v ACC (189/98); McDonald v ARCIC (Christchurch, Panckhurst J, 20/5/02, AP 2/02); Miller v ACC (179/2002); Brooker v ACC (205/00) and Cochrane v ACC (Wellington, Miller J, 27/5/2004, CIV 2003-485-2099). 6. In the latter judgment, Miller J stated at paragraph 26: “The onus is on the appellant to show the necessary degree of causation on the balance of probabilities, but this Court has cautioned against placing too much emphasis on the onus; Wakenshaw v ACC [2003] NZAR 590. The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between injury and incapacity exists. … At the end of the day, causation is a question for the Court. Temporal considerations may enter into it, as may questions of credibility that cannot be delegated to the experts”. Medical Reports 7. These have been analysed by Dr Bill Glass, an occupational medical specialist, in his report dated 1 December 2003. Mr Rutherford, orthopaedic surgeon, reported on 12 February 1998 and referred to a CT of the lumbar spine showing minor bulging of both the L4/5 disc and the L5/S1 disc. Mr Rutherford opined that Mr Upchurch had chronic mechanical back pain and was prone to exacerbation of it. He thought that the injury of 1997 was a continuation of this. 8. The rheumatologist, Dr P D Trolove, saw Mr Upchurch on a number of occasions. He was particularly concerned with an incident which had occurred in April 2001 at the Boulder Bank in the Nelson area, whilst Mr Upchurch was fishing. He thought that that incident was merely an exacerbation of an old underlying injury, namely the injury of 16 January 1997. He thought that, whilst the x-ray and CT scans showed degenerative changes, the accident of 16 January 1997, which irritated the L5/S1 distribution, “is most likely a true prolapse rather than non specific low 4 back pain”. He reached this conclusion by noting the stated site and radiation of the pain and that Mr Upchurch showed definite clinical sensory changes in the left L5/S1 distribution, especially the lateral aspect of the left foot. He considered that both S1 nerve roots might have suffered minor impingement. The general practitioner, Dr Parr, concluded by 13 August 1997 that Mr Upchurch’s lumbar spine was settling. He considered that the clinical picture was consistent with the bulging L4/5 disc. 9. Dr W E D Turner, an occupational medical specialist, reported fully on 9 June 2002 and concluded, like Dr Ruttenberg and Mr Rutherford, a diagnosis of chronic mechanical back pain. He considered that the sorts of symptoms being experienced by Mr Upchurch were not only consistent with the injury of January 1997 but with other forms of activity which occurred from time to time. 10. Dr Glass, in his report of 1 December 2003, thought that the event of 16 January 1997 was different from the other back injuries in its consequences and, accordingly, could be seen as a distinct injury. However, he recognised that Mr Upchurch was at risk because his lumbar spine showed degenerative changes which do not, in themselves, necessarily cause symptoms. He did not think that Mr Upchurch’s symptoms wholly or substantially related to the ageing process or were non-injury related. He clarified this more fully in his report of 14 May 2004 which, of course, is some two years after the decision of the Corporation of 21 June 2002. He said: “I believe the accident of 1997 was the last in a series of back injuries at work – it could be regarded as the “final straw” without the pre-existing history as outlined above. I do not believe the 1997 injury would, in itself, have led to Mr Upchurch’s ongoing back pain. It is, in my view, illogical to isolate one event in a series of similar events and to ascribe to that one event all the ongoing consequences. If the way the current law is written is such that it cannot accommodate a sequence of events and a likely outcome, then the problem lies with the law or its interpretation, not with the effect of work on Mr Upchurch’s back. I would have thought the Act should be based on what reality is, rather than what it should be”. 11. In the same report, he also recorded: “Clearly diagnosing back injuries is an art in itself. This case reflects that. Dr Trolove, a rheumatologist of high repute, is definite that the injury 5 Mr Upchurch suffered on 16 January 1997 “is most likely a true prolapse rather than non specific low back pain” and he supports his opinion with clinical findings. A CT scan at the time showed “posterior bulge at L4/5 disc area with probably pressure being placed on the left S1 nerve root consistent with his symptoms. When I saw Mr Upchurch in December 2003 these specific clinical findings were no longer present. In other words it was not possible 6 years later to state that Mr Upchurch still had a disc prolapse. Mr Upchurch now suffered from “chronic pain”. The ACC does not accept such a diagnosis as reflecting underlying tissue damage, even though that diagnosis may be the end result of a mix of work related wear and tear and repeated muscular strains (ie acute muscle damage). Thus the answer to the question cannot be other than chronic low back pain”. 12. The advocate for Mr Upchurch criticised the medical reports which were not favourable to Mr Upchurch but, in particular, he was concerned that both Mr Ruttenberg and Dr Turner had incorrectly described how the injury was caused. Dr Turner’s report is somewhat equivocal in this regard as, whilst it does mention that the weight of the timber being moved was only one kilogram in one place, in another it correctly records that it was heavy timber being moved. In any event, whether or not these two doctors misinterpreted how the accident happened is irrelevant: it is what they saw and diagnosed which is of relevance in this instance. 13. It was submitted by the advocate for Mr Upchurch that both Dr Trolove and Dr Glass had the facts correct. Indeed they did. However, significantly, whilst Dr Trolove’s diagnosis gives some support to the continuing symptoms as being the result of the accident, Dr Glass’ most recent report dispels this notion. 14. In this case, I conclude that the evidence seems to establish that the current conditions experienced by Mr Upchurch are no longer causally connected with the accident of January 1997. The medical evidence seems to support the view that the January 1997 accident had the effect of triggering already existing degenerative change and that this degeneration had been occurring over a long period of time. This was simply one more (albeit acute) incident in a long series of incidents affecting Mr Upchurch’s back: however, the 6 ongoing back pain is clearly related to the overall degenerative condition rather than the specific accident of January 1997. Conclusion 15. The appeal is dismissed. Dated at WELLINGTON this 15th day of September 2004 at 11 am J D Hole District Court Judge