Livingston v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012]NZACC (83ACR 562/11 UNDER THE ACCIDENT COMPENSATION ACT 2011 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BLAIR DENIS LIVINGSTON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 8 March 2012 Provision of supplementary information and submissions: 29 March 2012 Appearances: Blair Livingston in person Kirsty Berry for the Corporation Judgment: 25 May 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for Appeal [1] On 6 December 2010 Mr Livingston lodged a claim with the Corporation for personal injury in the form of a right shoulder and neck injury sustained on 22 November 2010 while lifting a box of springs at his place of employment. [2] On 8 December 2010, the Corporation accepted that Mr Livingston was entitled to cover for a right shoulder/upper arm sprain and a neck sprain. [3] He having been certified as unfit to work by his general practitioner, weekly compensation payments commenced from 15 December 2010 and the Corporation LIVINGSTON V ACC DC AK [2012]NZACC ACR 562/1] [25 May 2012] funded a Physical Fitness for Work and Independence programme as well as a Graduated Return to Work programme. [4] On 8 February 2011 the Corporation referred Mr Livingston to Mr Duthie Mills, orthopaedic surgeon for assessment and report. Mr Mills subsequently advised the Corporation that he had not identified evidence of any accident related explanation for what were described as Mr Livingston's "broad constellation of symptoms" [5] That advice set in motion a series of events (later detailed) culminating in the Corporation issuing a decision on 25 March 2011 suspending entitlements from 8 April that year. [6] Mr Livingston applied unsuccessfully for a review of that decision. Upon the dismissal of that application (on the ground that the medical evidence did not support a causal link between Mr Livingston's ongoing pain and need for treatment and any of his covered injuries) he appealed to this Court. Issue Relating to Employers Questionnaire Responses [7] In the course of the appeal hearing on 8 March 2012 Mr Livingston expressed disquiet arising from his understanding that his employer had disputed that he had suffered a work injury, the suggestion being - so he understood - that there had in fact been a recreational event involving him being struck on the shoulders by the boom of a yacht. [8] It was agreed that steps should be taken to get to the bottom of this. In the result Ms Berry obtain further documentation (beyond that in the bundle before the Court on the hearing date) and Mr Livingston then responded to that - but I will leave what thus came to attention for pertinent mention in the course of what now follows. Background [9] The original claim for cover (which was one of the further documents supplied by Ms Berry) had been completed by a General Medical Practitioner who gave this description of the accident: Lifted heavy box of springs and felt acute pain in right neck and shoulder. Aggravated by further lifting. 10] The accident date was said to have been 22 November 2010 and the time 4:00pm. The doctor's diagnosis was of, first, $50 sprain shoulder/upper arm right and, secondly, $570 neck sprain right. [11] Turning to the also only recently supplied employer's questionnaire, there was a question mark alongside the query as to date and time of the accident and no details were offered. There was no answer, one way or the other, to the question whether the accident happened while Mr Livingston was in his employer's employment. [12] It is clear in fact from the response to the last question in the form that the employer did not accept that the claim was for a work-related personal injury. Here a "No" is followed up with these reasons; The injury Blair sustained was not mentioned to me at any stage therefore I cannot agree it was work related, however Blair did mention to another staff member of injuring himself (RH?) on a sailing boat when "something got away on him" approximately a week before going off work. [13] Mr Livingston's own questionnaire response identified an accident at his place of employment in the warehouse of Autolign Limited (apparently a brake and transmission warehouse) at about 4:15pm on the day in question. [14] As to what he was doing at the time of the accident, he said this: Dusting stock on the top shelves out in the warehouse on a step ladder, I shifted a box of automotive suspension springs across extending reach in doing so. Immediately I experienced a sensation that I can only describe as being like an electric jolt that started in the base of my spine and raced up through my neck and out through my right shoulder and arm. I encountered similar symptoms on two occasions in the ensuing fortnight carrying out similar tasks in the warehouse ... [15] He said he had reported this event on the date it happened, speaking to the branch manager - he who subsequently answered the employer's questionnaire - when he was finishing for the day approximately 15 minutes later. [16] The further documents obtained by Ms Berry included two letters that Autolign had written to Mr Livingston on 2 March and 14 April 2011. [17] The first had invited him to come in for a discussion about his likely recovery period and time frames for a full return to work, it being noted that he had been off work at that point since 6 December 2010. [18] This letter said that Autolign wished to support Mr Livingston but had to consider its own situation and one option might be that his employment be terminated on account medical incapacity. The correspondence was copied to the Corporation. [19] The second letter recorded that Mr Livingston's doctor had provided a certificate that he (Mr Livingston) would be fully fit to resume duties on 8 April and Autolign had deferred its decision accordingly. [20] The letter went on to say that on that date he had not been able to resume his duties and had acknowledged that there was no clear indication of when that might be possible. [21] Thus Autolign's letter advised him that, given the specialised knowledge required for the position he occupied (which was not one that could be provided by a temporary employee) it was necessary for them to appoint a permanent replacement and one months' termination notice was confirmed by the letter. [22] A 'Decision Rationale' document of the Corporation of 19 April 2011 noted both the history as alleged by the employer and the accident as described by Mr Livingston, adding that on 6 December 2010 Mr Livingston's doctor had advised: About 2/52 ago moved a box of heavy springs on shelf - felt acute pain in right shoulder and arm. Both numb and in pain in shoulder down outer arm to hand. Initially settled but returned after turning awkwardly. Walks stiffly and holds right shoulder stiffly. Neck movements restricted by pain. Naughty cervical muscles and some referral down right arm. Should movements full but tender. Right hand grip?? mildly reduced. [23] This 'rationale' document ended in terms supportive of an, internal to the Corporation, recommendation that the claim remain accepted as a work related injury as the employer had not provided any strong supporting evidence that the accident did not occur at work. [24] Mr Livingston's reaction to these materials at the appeal hearing was to rehearse in more detail the circumstances of the accident for which he had cover and to query the motivation of Autolign in suggesting that his account could not be relied upon. [25] What became apparent from this response was his apprehension that this dispute had coloured the Corporation's approach to his claim and so had been a significant factor in the decision to suspend entitlements. [26] In that respect, and in fairness to the Corporation, I note that it is clear to me that (as exemplified above) the Corporation was not in fact impressed by the employer's denial of a work-related accident event. Medical evidence [27] The Corporation arranged for Mr Livingston to be assessed by Mr Duthie Mills, Orthopaedic Surgeon and he saw Mr Livingston on 15 March 2011. [28] On 12 March, thus prior to that appointment, Mr Livingston sent a letter to Mr Mills in which he described a mid June 2010 event when he had fallen from a ladder while assembling shelving and been left battered and bruised. [29] He also mentioned another incident when he was lifting a bin into a courier van at work. He spoke of that as involving him experiencing what was "like an electric shock that speed (sic) from the base of my lower back upwards and outwards through my shoulders, arms and hands leaving me with a pins and needles type of sensation in my hands and feet for the remainder of the day ..." [30] He then came to the covered event of 22 November 2010 and rehearsed the circumstances of that in quite extensive detail. [31] On 15 March 2011 the physiotherapist attending Mr Livingston wrote to Mr Mills about his treatment on the Physical Fitness and for Work and Independence programme, [32] He spoke of his impression that: Early regional pain syndrome or some other neuromechanism could be a factor in his extra pain. He is experiencing pins and needles and heightened pain sensitivity reaction on reaching out to full arms' length while holding a 2 kg weight. He is inhibited by pain apprehension which occurs prior to severe pain and spasm in his lumbar spine and also describes tenderness on palpation on both arms and legs... I have witnessed one of these attacks and they are indeed severe, dropping him to the floor and taking 10 to 15 minutes to subside. It is pain that is the main barrier to his rehabilitation and his ability to perform work tasks. [33] When Mr Duthie Mills assessed Mr Livingston on 15 March, he had before him a range of relevant materials and he had also arranged for x-rays of the cervical spine and an MRI scan of the lumbar spine. [34] Mr Duthie Mills set out his understanding of the history as follows: Mechanism of Alleged Injury/Sequence of Events: Mr Livingston described a fall at work in mid-June 2010. He said that while on a step ladder he missed his footing and fell backwards about a metre striking standard shelving with his right and then his left shoulder and then falling to the floor on his left side. He told me that he hit shelving and "glanced" into a doorway. He suffered bruising about the left knee, ankle, left hip, both shoulders, and left elbow. He stated that he was sore for a few days and that he used Anti-flamme. However, after a week or so he was feeling better and he had no time off work and did not consult a doctor. Subsequent Progress 6 to 8 weeks later, in early to mid-August 2010, Mr Livingston described picking up a plastic fish bin full of suspension components, the whole lot weighing about 20kgs. He stated that as he put this fish bin into the van, lifting, turning, and rotating the bin he developed a severe pain at the base of his spine "like an electric shock feeling with pulses". The pain radiated upwards to his shoulders and into both arms and was associated with pins and needles in his hands and feet. This symptom lasting a day. The pain and paraesthesize "dissipated" in his arms. He has complained of at least a dozen episodes of this nature and only one arm may be involved and the whole sequence which he describes as a "spasm" may well last 15 or 20 seconds." If the spasm is severe he may well drop to his knees. He told me that he is apprehensive that these "spasms" may occur at any time. He has taken Midazolam on three occasions with some relaxation effect. On 20 December 2010 after opening a sliding door at work he woke up with numbness in the right side of his body involving his right arm and leg and "a little bit" of the trunk. This symptom apparently improved slowly over 1 1/2 hours. Mr Livingston complained of the onset of "sensitivity" with tender spots in thoracic and lumbar spine. These spots made it difficult for him to lie supine with these tender points touching any firm object. He has attended physiotherapy at the Henderson Medical Clinic. More recently had has attended hydrotherapy and he had "exercise rehabilitation programme" which started 6 weeks ago. He complained of the most recent "spasm" some two weeks ago. These settled over a period of some 15 minutes following that spasm which came on while he was in the pool. [35] What is remarkable about this history is that it places no emphasis on (indeed does not mention) the reference made by Mr Livingston (when he wrote to Mr Duthie Mills before the appointment) to the 22 November 2010 accident event - that reported to ACC and which is central to this case. (But see para [43] below and my footnote to that.) [36] Mr Livingston had then said that: ... (On) Monday 22 November 2010 ... late in the afternoon I was working from a ladder dusting stock on the top shelving out in the warehouse, I shifted a box of automotive suspension springs, approximately 10kgs, across extending my reach in doing so. Immediately I experienced the same electric type jolt that I had encountered some months before... Obviously that last observation was a reference to the fish bin event. [37] Mr Livingston complained to Mr Duthie Mills of: Compare in this respect the observation of the Physiotherapist records at [32] above. . Pins and needles in the hands and feet if he sat longer than 20 minutes; Difficulty lying supine because of tender spots in his thoracic and lumbar spine; . When doing so, sometimes developing pins and needles in his feet and hands; Pins and needles in the hands and feet if he stood abducting his shoulders to 90 degrees and extending his neck and back; . Absence of full movement in the arms and upper body; and Sensitivity of varying degrees involving knees, hips, elbows and three points on his back; and Discomfort if driving for more than 10 to 15 minutes or attempting to walk for longer than that. 38] When seen he was on a Return to Work programme doing 4 hours per day, five days per week. The rehabilitation programme had ceased but he had expressed the wish to continue this as he had "gained progress" in his lower body. [39] Mr Duthie Mills said that Mr Livingston presented as a tall 46 year old of spare build who tended to walk slowly and, while standing, stood with his hips and knees flexed to a 90 degree angle and with his stance on a wide base. [40] Upon clinical examination, he found: A long neck with somewhat limited neck motion and stiffness but no complaint of pain; No tenderness of the shoulders but active shoulder joint motion bilaterally limited inflexion; A full range of elbow, wrist and finger joint motion; No local tenderness about the thoracic or lumbar sacral spine, but that motion was limited and on forward flexion fingertips reached knees only: extension of these thoraso-lumbar spine was limited to 10%; and Lying supine the straight leg raise test was 80% bilaterally and the sitting straight straight leg raise test normal with a full range of hip and knee joint motion bilaterally and no demonstrable neurological deficit in the lower limbs. [41] The x-rays and MRI findings were also reported but, on account their description as being "relatively minor and of little clinical significance," I do not detail them. [42] In his summary, Mr Duthie Mills briefly rehearsed the sequence of events as he understood them to be, noted the deficits apparent on clinical examination, and remarked afresh on the insignificance of the x-ray and MRI findings. [43] He had been asked a series of questions concerning Mr Livingston. I will not set out the questions as his answers make plain their nature. What he conveyed was that : In the past Mr Livingston appears to have been a fit man who had engaged regularly in cycling and running; He had been unable to identify any muscular skeletal abnormality which could reasonably explain Mr Livingston's broad constellation of symptoms. The surgeon accepted that he appeared significantly disabled, walking slowly and tentatively on a broad base and standing with his hips and knees somewhat flexed; He could not identify any muscular skeletal personal physical injuries which could be related to a specific accident;" Mr Livingston's current disability was due predominantly to chronic pain syndrome; His presentation was not consistent with a work related gradual process injury; He was fit for "selected work" but the surgeon was quite unable to estimate when he might be fully fit for normal duties; No medical reason was identifiable as would lead the surgeon to advise Mr Livingston not to carry out activities of daily living or work within his functional limitations; and And that, to the Court, renders less significant the fact that Mr Duthie Mills does not refer to the 22 November 2010 accident. What is significant is the fact that each accident event described by Mr Livingston appears to have generated the same kind of symptoms and that the physiotherapist has witnessed 'attacks' in non-accident contexts, Participation in work and/or normal activities of daily life might well be beneficial to his long term health and well being. [44] There was also a Panel report, but I will leave reference to that until later. Mr Livingston's case [45] The reviewer had recorded Mr Livingston's advice to her that the essence of his case was that his condition had not changed since the injury and nobody had been able to establish what was wrong with him. [46] He had been happy at the referral to Mr Duthie Mills and had found him very thorough in his examination. He had no dispute with his report. [47] He said that Mr Mills had only ruled out a neurological or orthopaedic "issue". No one, he had told the reviewer, had been able to "get to the root of the problem". And that last would certainly seem to be so. [48] On 6 April 2011 Mr Livingston had written a long (13 page) letter to the Corporation accompanied by a copy of an earlier (but unsent) 15 March 2011 letter to his case manager at Henderson. With that he had copied his letter to Mr Duthie Mills which I referred to earlier on. [49] In the course of this letter (the 13 page one) he spoke of difficulty persuading his general practitioner to listen to him when he endeavoured to tell him the whole story of his problems. [50] He said he had tried to point out to the doctor that he did not believe he had suffered from sprains but thought he had something more like a nerve or sensitivity type issue. He had been dissuaded from raising such matters with the Corporation because, so he said the doctor told him, that would only serve to confuse matters. [51] He spoke, too, of undergoing some arduous physiotherapy with a physiotherapist called Karen attached to his general practitioner's practice. He later related that he had subsequently come into contact with Mr Jeff Purvis the physiotherapist who had written to Mr Duthie Mills on 15 March 2011. [52] He had found him supportive and helpful. He spoke at length about his involvement in the Return to Work programme which he appeared to have begun well, but had become too much for him. [53] At a late point in his letter, when expressing confusion and dismay as to his predicament, he said: If you can imagine from where I am standing simplified, all I know is I had a fall from a ladder while I was working at a stand of shelving in a warehouse at my workplace in June last year and I have not been physically right since." [54] As to the letter that was never sent to his then case officer, in that he speaks of suggestions from the Corporation that he 'grin and bear it' - 'get back on the horse' as it were - suggestions that he found at odds with Mr Duthie Mills telling him he needed to take care to avoid further damage. [55] And in a 5 March 2012 submission to the Court, he said that he had been a problem to the Corporation because he did not fit its menu of complaints: That it all went back to the ladder fall and that his was a case of special and particular difficulty. Response for Corporation [56] The Corporation's position was that Mr Livingston's state of health could not be related to the November 2010 injuries for which he had been granted cover - in fact could not be related to a physical injury caused by any specific accident or accidents. Rather there appeared to be a primary pain syndrome problem of unidentifiable origin. This observation, with its reference to (and thus emphasis on) the June event may well go to explain why Mr Duthie Mills said nothing of the November event. See footnote above [57] Attempting to summarise the findings on review (which in her contention had been correct), Ms Berry had offered this analysis : There was no medical evidence showing that the cause of Mr Livingston's condition and symptoms were wholly or substantially related to any of his injuries and, more specifically, to his covered injury of 22 November 2010; and The medical evidence showed that the covered injury was spent, thus there was a sufficient basis for the Corporation to suspend all entitlements. [58] Ms Berry made consequential reference to the x-ray and MRI findings, to Mr Duthie Mills' report and to the observations of Mr Purvis, the physiotherapist. [59] Referring then to Mr Livingston's letter to the orthopaedic surgeon, she rehearsed that no claim had been registered for an event of June 2010 nor for that referred to by Mr Livingston as having occurred 6 or 8 weeks later, the only claim had been that concerning 22 November 2010. [60] That led Ms Berry to say that, as much as anything, what had driven the decision of the Corporation to suspend payments had been the advice of the Panel that: Mr Mills could not identify any physical injury which could be related to a specific accident, and states that the client's current disability is due to a primary chronic pain syndrome. Based on this it is appropriate to suspend all entitlements under s 26. The law [61] The fundamental provision in the present case is s 103(2) of the Act which is in these terms: (2) the question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury', to engage in employment in which he or she was employed when he or she suffered the personal injury. For which there is cover - see s 103(4). [62] If the proper answer to that question is one in the affirmative then (subs (3)) the claimant is incapacitated for employment. [63] In short, there must be (when, as here, weekly compensation and associated benefits are the issue) a causal nexus between the inability to engage in employment and a covered personal injury, or injuries, as defined in the Act. [64] The essence of Ms Berry's submission was that, on the evidence before the Court, there was simply no justifiable basis for concluding that there was such a causal nexus - it could not be said that Mr Livingston's ongoing problems tracked back to any personal injury by accident, or accidents, for which there was cover. [65] Onus of proof did not come into it - it was impossible to connect those ongoing problems to any accident event. Discussion [66] One of the difficulties in this case is the fact of Mr Livingston having reported a number of symptom producing experiences which, in greater or lesser degree, bear very distinct similarities, the one to the others. [67] The event - and it is the only event - for which he has cover is that of 22 November 2010. [68] The question then is whether the personal injury then suffered accounted for his asserted inability to engage in his previous kind of employment, [69] As will be obvious from the foregoing, Mr Livingston himself (in his various letters including to the Corporation and Mr Duthie Mills) spoke of several accident events but with an apparent emphasis on that of June 2010 rather than that of 22 November 2010 for which he had actually sought and got cover. 6 See s 103(2) of the Act set out at [61]. [70] I rehearse here my earlier (at [35]) observation about the absence from Mr Duthie Mills' report of any particular reference to the 22 November 2010 event but with a cross-reference to my observations (including in footnote form) at [43], [53] and [55]. [71] The symptoms identified and described by Mr Duthie Mills are entirely deserving of the label 'broad constellation'. [72] Even leaving aside (which of course and in the end I cannot) Mr Livingston's apparent focus on other than the covered accident event, those symptoms are so diffuse as to inhibit any ability to ascribe them to any particular event. [73] All that the Court can recognise is that Mr Livingston appears, most unfortunately, to be the victim of a chronic and widespread pain syndrome of unidentifiable origin, [74] Fundamentally, there is no useful evidence of a causal nexus between that, or any other, of his complaints and the 22 November 2010 event or, for that matter, any of the other events he has from time to time described. [75] Thus, and unfortunately for Mr Livingston (for whose apparent plight the Court has sympathy), I cannot recognise any grounds to support the proposition that Mr Livingston's pain-related employment limitations exist because of the personal injury for which he has cover. Result [76] It follows that his appeal must be dismissed and that is the result. Roderick Joyce QC District Court Judge