Handley v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 143/2004 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN BELINDA ALICE HANDLEY of TUAKAU Appellant (Appeal No. AI 459/01) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at HAMILTON on 5 May 2004 APPEARANCES/COUNSEL Mr G M Litchfield for Appellant Ms F Becroft for Respondent RESERVED JUDGMENT OF JUDGE J D HOLE Background [1] In January 1993, the appellant fell whilst walking down a grassy slope and hurt her back. On 4 August 1994, she injured her back when a bank door closed on to her hip. At the time of this injury, she was a 30 year old sewing machine operator. She lodged a claim for cover with the Corporation and cover was granted in respect of the 1994 injury. She aggravated the injury to her back when she fell from a chair on 5 May 1996. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/143-2004.doc acm 2 [2] On 29 March 2001, the insurer, acting in accordance with s 116 of the Accident Insurance Act 1998, suspended the appellant’s entitlements, claiming that her ongoing symptoms were no longer causally related to the covered injury. On 3 April 2001, the appellant applied for a review. This was heard on 20 September 2001. The Reviewer, after considering the extensive medical evidence, dismissed the application. Hence this appeal. The Law [3] The appellant has cover under the Accident Rehabilitation & Compensation Insurance Act 1992. The exclusionary provisions of s 10 of that Act mean that the appellant remains entitled to cover under the Act except where her condition is caused wholly or substantially by ageing or disease, or where the effect of the injury is no longer causally connected with the appellant’s condition. In this case, the respondent claims that the effect of the injury is no longer causally connected with the appellant’s condition. What is Wrong with the Appellant? [4] The appellant has not had an easy life. She had an unhappy childhood. She married at a young age, but the marriage did not last. There were no children. She has sustained the injuries to which I have referred. In addition, she has experienced alcohol abuse, sexual abuse, and, as a result of ill health, has undergone several surgical procedures. She lives on her own. She continuously experiences chronic pain in her lower back and down the sciatic nerve of the right leg. This back and leg pain has been described by most of the medical experts as constituting a chronic pain syndrome. Chronic pain syndrome has been described by His Honour Judge Beattie in a number of decisions as constituting a mental injury – see, for example, O’Meara (216/2001) and Van der Swaluw (222/2001). For the purposes of this decision, however, it does not matter whether it constitutes a mental injury or a physical injury. Why does the Appellant have a sore back? [5] If the appellant’s sore back is causally related to the 1994 injury (for which she has cover) then she is entitled to compensation. [6] The evidence of the orthopaedic surgeons discloses: 3 (a) pre-accident degeneration in the back which does not seem to be causing the pain; (b) that there is no physical damage to the appellant’s spinal system causing the pain; and (c) that the appellant has a chronic pain syndrome but they cannot ascribe a reason for it. [7] The occupational physician, Dr Kenny’s, opinion is very similar to that of the orthopaedic surgeons. He concludes, however, as well, that psychosocial factors may have contributed to the cause of the pain. He acknowledges that there is a clear association with emotional distress, depressive disorders and personality factors, with increasing evidence of a genetic predisposition to such disturbances of pain physiology. He says that the experience of such pain, and the tolerance for the pain, are likely to be adversely influenced by anxiety and emotional distress such as arising both within the workplace and outside (personal issues including physical/sexual abuse, alcohol/drug use, etc). [8] The psychiatrist, Dr Reeves, also thinks that psychological and psychosocial factors may have been sufficient to cause the chronic pain disorder. She thinks that it is quite plausible that the appellant’s symptoms have arisen as a result of psychosocial issues and that there is known to be a high incidence of musculoskeletal disorders in association with psychological problems. Whilst Dr Reeves does not exclude the possibility that the injury may have played a part in the development of the pain, it is her opinion that it is not the primary or predominant cause of her symptoms. [9] The two rheumatologists, Dr Butler and Dr Doube, both conclude that the effects of the accident of 4 August 1994 are causally linked to the appellant’s current pain. However, Dr Butler gives no reasons for this conclusion; and Dr Doube is sceptical as to the existence of what is known as chronic pain syndrome. Dr Doube, however, considers that the injuries which the appellant sustained were significant and that her symptoms at the time and her ongoing symptoms are consistent with mechanical rotational injury to the lumbar spine. He points out that many patients with mechanical symptoms in their back do not settle as quickly as is commonly advertised. 4 [10] The neuropsychologist, Mr Newburn, reaches the same conclusion as Dr Doube, although for different reasons. Mr Newburn excludes the psycho-socialogical reasoning of Dr Kenny by stating that it is pure conjecture. Mr Newburn notes that the appellant had no need for psychological input prior to her surgery. [11] The Reviewer, in a carefully reasoned decision, pointed out that upon reviewing the medical evidence the diagnosis of chronic pain syndrome had been made by a number of specialists who had examined the appellant. However, Dr Reeves was the only psychiatrist to consider the issue and she was not prepared to state that the appellant’s sore back was an outcome of the 1994 accident. “In other words, Dr Reeves’ report does not indicate that the personal injury in 1994 was the precipitating event which caused the onset of the applicant’s chronic pain disorder”. [12] The Reviewer concluded: “Therefore, in weighing up the competing medical opinions on the cause of the applicant’s ongoing symptoms, I have reached the conclusion that the opinions of Mr Hopkins, Dr Kenny and Dr Reeves are to be preferred. Mr Hopkins and Dr Kenny both examined the applicant in giving their opinions on causation. Mr Hopkins has been unable to attribute the applicant’s ongoing symptoms to the accident in 1994. Similarly, Dr Kenny diagnosed chronic pain disorder primarily due to degenerative disc disease of the lumbar spine. As noted above, Dr Reeves did not implicate the applicant’s physical injury in 1994 as being the cause of her chronic pain disorder. Dr Doube, on the other hand, was of the opinion that a clear diagnosis had not been reached by the previous examiners, rejecting the diagnosis of chronic pain syndrome as indicating any medically recognisable condition. In this regard I find Dr Doube’s views to be at odds with the District Court’s acceptance of chronic pain syndrome as a medical condition. While Dr Butler indicated in July 2001 that the applicant had chronic post-traumatic pain, in reaching this conclusion, he did not examine the applicant”. [13] Simply because Dr Doube is somewhat cynical about the existence of the condition known as chronic pain syndrome, it does not mean that his opinion as to the cause of the appellant’s sore back should be discounted. He provides a physical reason for it. The fact that the orthopaedic evidence discloses no continuing abnormality does not necessarily mean that Dr Doube’s opinion is untenable. Further, I think that Dr Newburn’s suggestion that Dr Kenny’s psychosocial theories are pure conjecture should not be discounted. Dr Kenny is an occupational physician whereas Dr Newburn is a neuropsychiatrist. A person experienced in the latter 5 discipline is probably more capable of expressing an authoritative opinion on psychosocial theories than an occupational physician. [14] In conclusion, then, the orthopaedic evidence does not ascribe a cause for the pain. The psychiatrist, Dr Reeves, has her suspicions but they are not conclusive. Dr Doube ascribes a physical reason for the pain and links it directly with the 1994 accident. So does the rheumatologist, Dr Butler, although Dr Butler did not see the appellant and gave no reasons for his conclusion. Finally, through a different reasoning process, the neuropsychiatrist, Mr Newburn, reached the same conclusion as Dr Doube. Conclusion [15] I am satisfied that the appellant, on the balance of probabilities, has established that her continuing sore back is the result of the 1994 accident for which she has cover. In these circumstances, the review decision is quashed and the Corporation is directed to reinstate the appellant’s entitlements. [16] The appellant is entitled to costs, which I fix in the sum of $1,200 plus appropriate disbursements, if any, as fixed by the Registrar. Dated at WELLINGTON this 20th day of May 2004 at 11.00 am/pm J D Hole DISTRICT COURT JUDGE