Rauhihi v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No{;,,{:-;9_ 4 UNDER The Accident Rehabilitation and · · Compensation Insurance Act 1992 AND IN THE MATT ER of an Appeal pursuant to Section 91 of the Act 69-93- 2060 BETWEEN BEVERLEY LORRAINE RAUHIHI of Linton, Palmerston North Appellant (Appeal No. DCA 19/93) AND ·ACCIDENT REHABILITATION . AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of September 1994 before Judge AW Middleton Mr H Gray Medical Assessor Mr A McDiarmid - Medical Assessor APPEARANCES . A ·M Stevens for appellant N P·Lucie-Sm.ith for respondent ') . . . DECISION OF JUDGE A W·MIDDLETON . . This is an appeal against the decision of the respondent dated 14 Jun_e 1993 in which it notified the appellant, pursuant to s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992, that the payments of weekly earnings were to cease. The appellant who is now aged 52 was a poultry worker who lodged a claim with the respondent on 18 June 1990 that she had suffered an injury to her back when lifting heavy buckets in the course of her employment on 5 June 1990. The appellant received earnings related compensation on the basis of certificates issued by her General Practitioner that she was unfit for any type of work. In August 1990, her General Practitioner, Dr O'Leary, reported that her condition was much improved, but until then could be assessed at 80% of normal. On 28 July 1992 he reported that the appellant's prognosis was not good and that she was unlikely to be able to return to work. In Dr O'Leary's opinion her incapacity was the result of the accident on 5 June 1990. Dr O'Leary referred the appellant to Mr K. Davey, an Orthopaedic Surgeon, who reported direct to Dr O'Leary on 15 March 1991 and stated: "Thank you for referring this lady for review of her troublesome lo,i1er oack. . . LS/Sl DEGENf,RATIVE DISC She srys · that she has worked in jobs involving a lot of heavy lifting over the years ancf. has always had episodes of lower back ache although until recently these have not been severe enough to cause her to take time off work. In Mny nnd June 1990 while working as an egg stacker she had to lift heavy trays of eggs and buckets of egg whites and gradually her lower back became quite sore until she was forced to stop work completely in June. She has not been able to return since. She says that_ she has had four major JI.are tf.PS of back trouble since. which have also laid. her up in bed.for a fe,p days. 77re last of these occurred three weeks ago after spending some time bending over weeding the garden. <:;{!nerally the. pain is a dull acfie felt at the lumbo-sacraJ junction and radiating towards_ the right buttock. Ven; occasionally it extends down the top of the. thigh and while it is a burning sensation there are no symptoms -of anaesthesia or panzesthesiae. Othenvise fit and well and not on any · medication apart from Panadeine as necessan; for her back. . She turned and moved rather cautiously today and on fonvard Jl.exion could only reach to the lo1l'er shins with her fingertips. However more difficult was getting back up from a flexed position when she demonstrated "cogwheel" extension. Lateral Jl.exion to each side was also moderately limited while rotation seemed free and pain less. Straight leg raising on eaclz sfde is 70 degrees. 1 cold not elicit either c_znkle or knee r_efl.exes but sen?ation and motor power in the· legs was normal, On palpation there wµs tenderness on firm pressu.re over the lumbo-sacral jiinction. -X-rays of her lumbar spine taken at Merci; Ra_diologtJ on 18.6.90 show quzte marked narrowing of the LS/Sl disc space with osteophytic lipping at tlze anterior margin of L5. T7iere is a minor degree of narrowing of L4/5 while tlie spaces above this level. look normal .. Moderate sclerosis of the facet joints at LS/Sl. Her symptoms are ven; much in keeping with the obvious radiological degenerative changes at LS/Sl. I have explained all this to her and advised_ that the mainstay of treatment is physiotlierapy, anti-infl.ammatonJ_ analgesics; a lumbar support and general restriction of 3 actii•ities, just as size has had to date. Tlze only altematiz1 e would be surgical treatment, i.e_. a lu111l10-sacrnl fusioll but at the mo11ien t I doll' t thillk lhat her sywpto111s are sez,ere - enough to warrant this. Nez·ertlzeless I lzm•e described what would be irwoh•ed in such surgen; and recomwended that she earn; 011 this consen•ative nuinagement and wlzerez,er possible m•oid actiz.•ities which inuolz•e lifting and bending. Size should also keep _ a watch on lzet ·weight as size is slightly oz1 em•eiglzt but size tells me that size is already on a diet. I have not made a ftzrtlzer appointment to see lier at this stage but would be happy to rez•iew tlze situation if lier symptoms do not settle to a tolerable lez1 el." The respondent's medical adviser noted in a file memorandum on 12 August 1992 that the information on the file: "Does not indicate any accident as such, but pain coming on after lifting trays of eggs. This incident would be insufficient to callse a degenerative condition as described bt; Dr Davey in report of 15/3/91. T11is incident of 5/6/90 could have caused aggravation of the back condition, but this could reasonably be expected to be tempornn;; and could reasonably be deemed to be over now. Thus (1) I think [P's continuing incapacihJ is due to the degeneratiT.'e disease and not the 5/6/90 incident. (2) The incident of 5/6/90 would not cause any P.O. - i.e. it would not be sufficient to cause long term aggravation of t'1e 0.A." As a result of that opinion the respondent notified the appellant on 17. August . . · 1992 that further ·payments of weekly earnfngs would cease as from· 31 August 1992_ A subsequent notification· of 14 November 1993 was made when the· respondent realised that the decision letter of 17 August 1992 purported to be· made under the Accident Compensation Act 1982, but should have been made under the Accident Rehabilitation and Compensation Insurance Act 1992. - . The appellant applied for a review of the respondent's decision. After reviewing _ tµe medical evidence, the appellant'.s evidence, _and the law, the Review Officer .expressed. concern that there were discrepancies-between the evidence given by . . the appellant and the information on the respondent's file. - In partitula:r, she was· concerned that the appellant related her proble!Il$· to the specific incident on 5 June 1990, while Mr Davey's report referred fo .previous episodes of lower back ache. The Review Officer considered that the appellant's claim appeared to relate to an overuse syndrome. The Review Officer referred to the fact that Mr Davey had stated that the appellant's report to him was that her symptoms had come on gradually over a period of time while Dr O'Leary was adamant that the episode · on 5 June 1990-was the sole caus e of the_problem. The Review O££1cer considered that. x-rays taken in June 1990 d1$closed rriarked degeneration of the lower spine _ that confirmed Mr Davey's opinion that there were obvious radiological degenerative changes evident. -The Review Officer therefore declined the application for ·review. Mr Stevens advanced his argument on the basis that it was two pronged ii:i that the appellant, in addition, to suffering personal injury by the accident on 5 June -l 1990, also suffered a disease arising fr<?r:11 a gradual process indt,1ced by the-nature · of her w ·ork As I indicated to Mr Stevens during the course of the hearing, I cortsi dered that I _ _ had· no jurisdiction to consider the submissions •in relation to a possible disease arising out of gradual process. I am strengthened in this view by the decision of Smellie J. in ACC -v- Lukes [1992] NZAR at 419. In that decision Smellie J. said: "It is tnie that the Respondent did not ask for a finding of occupational disease wizen he first made his claim but the submission advanced on his behalf is that tlze ez,idence was tlzere in tlze record and in the medical reports, implicitly, right from tire start. And that it was brought out in greater detail in the reports of a Dr Daniel and a Mr Farr, an Orthopaedic Surgeon, before the Review Officer and in still greater detail nt a Inter stage in tire report of Mr Hardy, another Orthopaedic Surgeon, which was submitted to and accepted by the Appeal AuthorihJ. It is beyond question that the case evolved as it moved through the appeal procedures and ended up significantly different to the one first presented. The notice of appeal to the Appeal AutlwrihJ did not herald tlze final argument advancing occupational disease and indeed, as the written s ubmissions of Counsel for the. Respondent before the Appeal AuthorihJ show, _ that proposition was only put fonvard as an alternative." His Honour- then concluded: "I have reached the conclusion that Mr Squire's submissions are correct. -The exclusive jurisdiction accorded to tlze ACC in s 27(3) to reach a conclusive decision, is not to be circumvented by the Appeal AuthorihJ finding a categon; of personal injury which was not put before the Corporation or addressed by it. Furthermore such a finding is not a reversal or modification of the Rez•iew Officer's decision but the substitution of a completely new ·conclusior1;. It seems to me, with respect, that in this particular case the Appeal AuthorihJ · should have ufilized its jurisdiction (available to it but not. to nre) pu"rsuant to s 109(8) of . the Act and referred the · whole matter-back to the- Corporation for a reconsideration as to • w_hether or not Mr Lukes was suffering from an occupational disease and therefore entitled -on that basis to a continu tion of earnings related compensati n." · Accordingly, the issue before · me is whether or not the Corporation was correct in its decision _of 14 January 1?93 to cease payments -of weekly compensation pursuant to s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992. Si[\ce the hearing of the review the appellant has been examined by Mr P. Grayson an Orthopaedic Consultant who reported to the appellant's ac;ivisers on 2 _ A1:1gust 1993. . Mr Grayson 'had. available tq -him two reports- from Mr Davey dated 15 March 1991 and 16 October 1992, together with Dr O'Leary's report of 28 July 1992 in which he had stated his_opinion that that appellant's incapacity is solely due to the original accident. · I have agreed fo accept Mr Grayson's report of 2 August 1993 together with a further report dated 19 September 1994 which have been submitted by the appellant. . In addition, I ·have accepted an affidavit from the . .. :, respondent's solicitor to which is annexed a copy of Mr Davey's second report to Dr O'Leary dated 16 October 1992. . In his report of 2 August 1993 Mr Grayson reviewed the appellant's history and the nature of her work which gave rise to the incident which she claims is the cause of her current problems. Mr Grayson described that situation as: "Finally, once a week, sire had a half day job to do which sire described as "back breaking". This required her to shift approximately 1500 trays of the eggs into tire store and this was a job size particularly disliked because of the strain placed on lzer back. Sire had been doing tlze job for about 7 months before sire started noticing increasing back pain from Jzer work, but size carried on as size needed the money, and it was three weeks before sire finally "broke down" completely in June 1990. Sire has not been able to return to work since, although Jzer pain at tinzes tends to settle there have been "flare-ups" even with simple activities such as bending over to pick up sonzething off the floor, or if she attempts to pull weeds in her garden. The acute pain that results will put her to bed for 4-5 days at a time. As a result of her back disabilihJ her husband has left her (in Februan; 1992) and she now has to live with her eldest daughter who supports her and two other children. Pain at present is mainly related to Jzer lower lumbar spine without any radiation into her legs. Despite wearing a support it is never completely absei:zt, and on occasions she needs to · take Pethidine for its relief . She cannot sit or stand for any length or time, and as a result of her inactivity she now weighs 14.5 stone whereas previously she was 10.5 stone." Mr s;rayson's comment at the conclusion of 1:is rep9rt was: "As has been pointed out m; Mr Davey Mrs Rauhihi's back disabilihJ relates to degenerative·_ changes at the Zumbo-sacral disc· space · and to a lesser extent at the L4/5 level above it.· However these degenerative changes did not come to light until the episode of back strqin in May and June 1990 when the x-rays revealed the condition, and also the fact _ that. they were· of sonze years standing. Despite the fact of this "chronicity" they did not give rise to any clinical symptoms until t/ze accident brought tlrem to light and this is not an uncommon sequence of events in cases seen by orthopaedic-surgeons of the condition. I think it important that t}ze background of " disc degeneration" be understood before giving an opinion as to Mrs Rauhihi's eligibilihJ to ACC compensation. . . I quote from a recognised authorihJ on this subject. In an article by Leon Wiltse, an internationally recognised expert· on back disabilities as recordeif in a ·symposium on_ ·the spine at a meeting of the American Academy of Orthopaedic Surgeons in November 1967' tire statement is made "disc degeneration should be interpreted as a more or less normal physiological process which begins about tJze age of 20 and continues throughout life_. It affects the discs by causing loss of its gel properties, thinning and defective function as an elastic body becoming incapable of normal absorption and redistribution of stresses. 6 "However it 111i1st be emphasised that disc degeneration r11ay dei•elop and even attain adz•m1ced stages u;itl10llt ezrer gii>ing rise- to pain in either ·uen; sedentanJ worker or the lteavy H'Orker. Ven; hem•y work does speed up the process of disc degeneration and in his office any ortlwpaedist will dnily come across cases showing noticeable degenerative changes up and down the spine in.tire form of markedly narrowed disc spaces and seiiere osteophyte formation, yet tltese patients may ne·uer Jurve lwd any pain in· tlze back. Howez•er such a spine is more prone to injzm; and if tire person is placed in a job where Ire lws to do a lot of lzeavy lifting he is more likely to dei•elop significant back trouble. "A comparison behl'een men engaged in light and those in lzeavy work will show that both mild accidents and heavy lifting are much more common causative factors in tlze onset of back symptoms in tlze group engaged in Jr.envy work. 11 I would feel tlwt such comments could well apply to Mrs Rauhihi' s case. Over tlze years since size started work, and particularly wizen size has borne children, tlzere Jwve been strains on her lumbar discs and especially with pregnanet;, both strain and hormonal changes affect disc nutrition and can predispose to disc prolapses. In Mrs Rauhihi' s case disc prolapses have not occurred, but degenerative changes have been ongoing and made her more prone to injun; as outlined tnJ Dr Wiltse. At this stage the judgement in the case of McCarthy versus the Union Steamship Company of New Zealand made in 1916 is ven; relevant. In his judgenzent the judge makes the comment "it is clear however that if a man's physical condition is such as to render him peculiarly susceptible to grave consequences from an accident, which in a normal healthy person woilld have no such consequences, that will not affect the right to compensation for the more serious results." In Mrs Rauhihi' s case she has been rendered "peculiarly susceptible to grave consequences from an accident which in a normal healthy person (i.e. without degenerative changes) would have no such consequfnces. 11 Frolll Mrs Raulzihi' s outline of her work commitments there is no doubt that lier back was having repeated strains from lifti]'!g, bending-and _twisting and these ultimately led to her back "breaking down" and I am.sure that if she had not had.s.uclz repeated strain, she: would . · not have developed the d!sability in-fier spine that is present noiv. - · . . . I would therefore feel that it can te disputed that_ there is n.ot a casuai connection (better connections) behveen the incident (better incidents) in Mtzylfune 1990 and Mrs Rauhihi's current inability to work. In my opinion Mrs Rauhihi' s ongoing condition therefore is due in some significant part to the work that she was doing in May/June 1990. (2) I would consider that Mrs Rauhilzi lzas a perm.anent disqbilih; in Jzer. lumbar spine resulting from these incidents in 1990, which would equate to 25% of total under Section· 78 · · · · of the. ACC legislation. ln determining this figure I take cognisance of the pre-existing degeneratire changes noted on her x-rays, but which at the time of onset of the disabilihJ were not giving rise to any · physical disabilihJ . . . Under Section 79 Mrs Rauhihi deserves sympathetic consideration. She now has chronic back pain which on occnsions can be particularly sei,ere and requires bedrest for its 7 111a1znge111e11t, · it would. appear that the back disabilihJ has caused a brea _ kdown of lzer 1/larringe, alld the "farming out" of some of Ir.er children 7l'itlz ccmseque11t loss of enjoy1i1ent of life for all co11cenzed. Slze.ca11 no longer play sport and tlze state of her back is not likely to improz•e in tlze fu-ture. I doubt if size is a case where surgen; in tlze form of a lumbar fusion would be considered, as despite such a fusion there can be no guarantee tl11lt lzer back pain would be completely relieved in view of Jr.er weak back and abdominal muscles and tendenC1J to obesihJ" In his subsequent report of 19 September 1994, parts of which Mr Lucie-Smith has challenged because they are not in the nature of medical opinion but represent submissions on behalf of the appellant, Mr Grayson has confirmed his opinion that the appellant's ongoing problems are attributable to the incident at work in June 1990. In his view the work in June 1990 aggravated the pre-existing degenerative changes and in his view this constituted "the straw that broke the camel's back." Mr Davey's second report of 16 October 1992 does not really take the matter any further other than to confirm the existence of continued lower back pain and, in his view, that a spinal fusion is not warranted at this time.· In her evidence before the Review Officer the appellant was aqamant that Mr Davey was .wrong to report that she had had previous episodes of lower back ache. Her explanation was that in the period leading up to the. episode on 5 June 1990, she had begun to suffer periods of back ache and that when she made the lift on 5 June 1990, "it just:- yvent snap". She said to the Review Officer: "I just lifted them up and it just - sounded like a bit of ..... but ..... I hadn't broken anything, but I knew jolly well I'd done something because the pain just soared right through me." The appellarit · said that .up until that time she had been a keen and regular tennis . player, r-, but has·had to give that up. The back problems also cause_d problems in her personal life because she was then unable to have sex with her husband, who has since left her as a result of arguments caused by this problem. She said that she had endeavoured to fill in the necess . ary forms relating to her injury as best she could and considers that her answers are truthful. She has reiterated that at no time had she previously been troubled with back problems until the brief period leading up to? June 1990. Section 73 of the Accident Rehabilitation and. Compensation Insurance Act 1992 permits the Corporation· to cancel the payment of any compensation at any time, if it is not satisfied on the basis of the information in its possession, that a person is · entitled to continue to receive "that payment". Mr Stevens made submissions in relation to the application of the 1992 Act, but I am-satisfied that pursuant to s.135(1) that the appellant was a person who had had 8 her claim accepted pursuant to the Accident Compensation Act 1982.for an irijury suffered before 1 July 1992. · Accordingly, pursuant to that section, she is deemed to have suffered personal injury that is covered by the 1992 Act. One must then turn to s.138 which provides the manner in which entitlement to weekly compensation is determined. I agree with Mr Lucie-Smith's submissions that the decision of this Court in Decision No: (29/94) Way v ARCIC confirms that s.49 of the Act only applies where twelve months has elapsed since the incapacity of a person first commenced. Under s.139 incapacity is deemed to have commenced on 1 July 1992 and accordingly the decision of the Corporation to cease payment of earnings related compensation is to be determined by the provisions of s.37. I do not consider s.49 is relevant to this appeal. I am conscious of Mr Lucie-Smith's strictures that I should not lightly depart from the Review Officer's findings of fact, particularly as they relate to the issue of credibility. However, it is clear from a reading of the transcript and from the medical reports that the appellant may well have had some difficulty in addressing the particular issues which were put to her. Whilst Mr Davey has referred to previous problems the appellant is adamant that these were only limited to the brief period before the actual incident on 5 June 199.0. She is also adamant that up until that time she had been a regular tennis · player and had had no problems with her back. I am indebted to the Assessors who have- advised me that I should treat Mr Davey's reports with some caution as to the suggestion of prior episodes, because the reports are not strictly full reports commissioned by the respondent, but merely a report between medical practitioners. The Assessors take the same view _ as I do, that while the appellant may have displayed areas of degeneration they were not sufficient, in themselves,. to cause any problem until the incident on 5 June 1990 and that that was the precipitating cause of her-current problems. - . . . . . . . . Accor1ingly, the appeal is allowed and the payment of weekly · compensation is to· be reinstated from the date upon which it was ceased. _There will be costs to the appellant of $800.00 together with a sum of $350.00 to · cover the costs of Mr Grayson's two reports. Dated at Wellington thislftday of October 1994 Judge A W Middleton DCAl 9-93.doc(MH)