Kirwan v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 257 /2006 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN BRONWYN KIRWAN (AI 268/04) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS [1] The issue in this appeal arises from the respondent's decision of 8 October 2003, whereby it suspended entitlements for the appellant, pursuant to Section 117(1) of the Act, on the grounds that her then medical condition, namely her ongoing back pain, was not attributable to or caused by the back injury for which she had been granted cover in 1993. [2] The appellant is now resident in Australia and has requested that the Court consider this appeal 'on the papers', to which the respondent has consented. The Court has received written submissions from the appellant and from Mr W Potter, Counsel for the Respondent. [3] The background facts relevant to the issue in this appeal may be stated as follows: • On 10 January 1993, when the appellant was aged 35 years, whilst on holiday in Sydney, she was accidentally dropped and hit her back and neck on the edge of a swimming pool. 1 • She did not experience any pain at the time and it was not until the next day, having flown back to New Zealand, that she began to experience severe back pain in her neck, shoulders and lower back. • The appellant obtained cover for her back injuries, and as part of the treatment for her back pain she was referred to Dr John Hancock, Pain Specialist. In his report of 30 May 1996 he noted that the appellant had undergone a variety of treatments for her back pain, including acupuncture. Dr Hancock noted that the appellant had a complex diffuse disorder which was driven, or at least maintained, by central sensitization of the nervous system. He initiated a pain treatment programme. • Over the ensuing years the appellant continued to receive treatment from a variety of specialists for her continuing back pain. • In a report provided to the respondent dated 9 August 2000, Dr S Gavaghan, Occupational Medicine Specialist, identified that the appellant's then clinical symptoms were those of fibromyalgia. • Subsequent specialist opinion confirmed that diagnosis. • In September 2003 the respondent sought the opinion of Dr Keith Lethlean, Consultant Neurologist, and he too identified her condition as that of fibromyalgia, and he gave as his opinion that no direct physical/medical causal link existed between the injuries the appellant suffered in January 1993 and the development of the fibromyalgic condition. • Consequent upon Dr Lethlean's report, the respondent issued its decision on 8 October 2003, suspending entitlements on the grounds that the appellant's present symptoms of severe back pain were not related to her covered injury. • The appellant sought a review of that decision. The review was conducted 'on the papers' and in her decision dated 27 April 2004, the Reviewer stated, inter alia, as follows: "In the absence of any physical injury, other than a soft tissue injury 10 years ago, I find that the temporal link between the accident and the current 2 condition is not sufficiently proven on the medical evidence, especially when the genesis of the fibromyalgia is uncertain and not agreed upon within the medical profession. Therefore, ACC was correct in suspending entitlements under Section 117(1) on the basis that Mrs Kirwan's current condition cannot be established as having been caused by the accident in 1993." • For the purposes of the appeal to this Court no further medical evidence has been sought to be introduced. [4] The Court has been provided with a number of medical reports from specialists of various disciplines who have at various times considered the appellant's back pain problems, and the salient points from those various reports, in chronological order, are as follows: 1. Report from Dr John Hancock, Pain Specialist, dated 30 May 1996. The appellant was referred to Dr Hancock by ACC as various treatments she had undergone hitherto had proved unsuccessful and she was said to be in constant pain. Dr Hancock gave as his opinion as follows: "Your patient has a complex diffuse disorder which is driven, or at least maintained by central sensitization of the nervous system. The issue is whether there are any peripheral inputs in her musculoskeletal system maintaining or setting off this central sensitization phenomenon. Once this latter is in place then non-noxious input is able to produce pain, and presumably this is why she is in the dilemma of suffering considerable pain without there being any apparent organic or structural change to account for it. She has two major problems as far as starting a treatment programme, and they are: 1) the diffuse nature of her disturbance suggesting possible widespread sensitization, and 2) on the basis of today's examination anyway, spinal movements did not produce clear cut pain which makes it very difficult to test for potential pain generating sites which local anaesthetic, a major means of carrying out an analysis of pain." 2. Report from Dr Hancock dated 11 February 1997 to ACC. ACC had requested information regarding Dr Hancock's treatment of the appellant and he advised that he had provided two types of treatment, both of which had to be discontinued because of her adverse reaction/or side-effects from same. Dr Hancock confirmed that the appellant had a wide-spread sensitization phenomena involving her central nervous system, which he said could formally be labelled 'traumatic fibromyalgia'. He indicated that her long-term prognosis was poor and those who suffer 3 traumatic fibromyalgia generally have a more severe disorder as evidenced by the research which has been done. 3. Report from Dr Arnold Bok, Neurosurgeon, dated 19 January 1999. Dr Bok reported to the respondent after reviewing an MRI scan which had been taken of the appellant's cervical spine in December 1998. Dr Bok advised that the scan showed minor degenerative change only of the lower cervical discs and no significant narrowing of the cervical canal foramina and no obvious cord or nerve root compression. Dr Bok answered a series of questions posed by the appellant's Case Manager, those answers being as follows: "The diagnosis is neck and arm pain of uncertain aetiology, but most likely due to soft tissue abnormality. The symptoms apparently started soon after the accident on 10.1.93, and it is therefore likely that the accident caused the problem. She has only minor degenerative change on MR scan, and it is therefore not likely that her pain is caused by degeneration. It is unlikely that further medical intervention or investigation will improve her condition." 4. Report from Dr S Gavaghan, Occupational Medicine Sp ecialist, dated 9 August 2000 to ACC. Dr Gavaghan examined the appellant and reported that she experienced pain affecting neck, thoracic lumbosacral spine, and lower back around the sacroiliac joints on both sides. Dr Gavaghan gave as her opinion as follows: "I agree with Dr Hancock, her clinical symptoms and signs are much more in keeping with that of a fibromyalgia. A MRI scan in January 1999 indicating minor degenerative changes in the lower cervical disc but no significant narrowing of the cervical canal foramina, no obvious cord or nerve root compression. Clinically her history does not suggest a radiculopathy in the left leg. However, she has never undergone any Lumbar x-rays or MRI, which would really be needed to confirm a diagnosis of radiculopathy. In my opinion the clinical findings are not suggestive of radiculopathy. Several orthopaedic surgeons and a neurosurgeon have examined her and no mention has ever been made of any evidence of radiculopathy. 4 In answer to your specific questions: 1. What is her current accident related disability? Her present disability is fibromyalgia. The development of fibromyalgia has a definite temporal relationship to her original accident, which would have resulted in soft tissue damage. Continuous structural damage we have been able to demonstrate on examination by investigation. Her present level of disability is related to her pain. Her present level of disability is subjective and we are unable to measure this objectively." 5. Report from Graeme MacDonald, Neurological and Spinal Surgeon, dated 4 February 2003. Mr MacDonald was asked to provide a report on the appellant's medical condition and he was provided with all previous specialist reports that had been generated over the years. Mr MacDonald gave his opinion as follows: "I recognise that Mrs Kirwan is describing diffuse spinal pain which had its onset at the time she was dropped as she was being thrown into a swimming pool in Australia, and which has persisted to the present day with exacerbations and remissions. I have told her 1. That although this pain had its onset at the time she was dropped, I think that this episode may have precipitated pain associated with a soft tissue injury, but I do not believe that the episode when she was dropped is now responsible for her ongoing symptoms. 2. I have suggested to Mrs Kirwan that it is not uncommon to see fit usually young women of normal build with diffuse spinal pain, and it is not my belief that it is associated with any particular injury. These people often have a hypermobile spine. In answer to your specific questions: 1. I believe that the symptoms of spinal dysfunction which Mrs Kirwan describes are likely to now be unrelated to the fall that occurred in Sydney, and although the mechanism of this type of spinal pain is uncertain it can persist for long periods of time. It is suggested that after many years, as a patient grows older the situation does improve." 6. Report from Dr K Lethlean, Consultant Neurologist, dated 30 September 2003. Dr Lethlean, of Sydney, was provided with the various medical reports and he examined the appellant in Sydney for the purposes of his report. He had the various X-rays and MRI Report for reference. Dr Lethlean gave his assessment as follows: 5 "Previously healthy and active, Ms Kirwan now aged 45 years, presented with severe and restrictive cervical and lumbosacral pain that dates from a fall onto concrete 10 years ago. Initial symptoms included shoulder/upper arm pain, with variable left leg pain subsequently. Examination showed a good range of cervical and lumbosacral movements with no neuromuscular abnormality. Available investigations show no structural abnormality at cervical level (1993, 1998). X-rays of the lumbosacral spine 1998 are within normal limits, on 22 August 2002 degenerative changes of mild degree are noted with borderline anterolisthesis L4/L5. The initial injury would appear to have been a soft tissue injury. A structural basis for continuing and severe cervical and lumbosacral pain is not evident (file review). Diagnosis: The initial injury would appear to have been a soft tissue injury without structural abnormality. Persisting/fluctuating symptoms have the features which would qualify for the descriptive term "fibromyalgia", the definition of which requires the exclusion of significant structural and other medical disorders. The basis of fibromyalgia is not agreed within the medical profession, whether psychologically determined, physically determined or a combination. [I will not add my own preference within this spectrum]." . . . Dr Lethlean was asked specific questions and those questions and his answers are as follows: "In answer to the specific questions in your letter of 15 September 2003: 1. What factors have caused the symptoms to persist for so long? In my opinion the initial soft tissue injury can be assumed to have subsided, but Ms Kirwan manifests a disorder "fibromyalgia" which developed soon after the initial injury, whether triggered by the fall onto concrete, the flexion movement of the following day, or developing coincidentally. The term "traumatic fibromyalgia" is used within the file made available to me. 2. Would you please specify the relationship between the condition and other conditions and accident events. Can the event of 1993 be seen as the causal link to the current incapacity? In my opinion no direct/physical/medical causal link exists between the injury in Sydney 1993 and the development and persistence of the current condition/conditions. The sequence, dating from the initial impact, is not one generally attributable to spinal injury or complications thereof" 6 [5] In her submissions to the Court the appellant made the following points: • ACC accepted the claim as being that of an injury arising from the swimming pool accident. • The appellant's GP, Dr Dunn, in June 1999, opined that the appellant's symptoms that she then displayed were as a result of the accident. • Dr Hancock identified the condition as "traumatic fibromyalgia". • That the appellant did not exhibit any psychological impediments which might be an alternative cause. • That she has been in constant pain since the day after the accident. [6] Mr Potter, Counsel for the respondent, submitted as follows: • The appellant has not shown, on the balance of probabilities, that her ongoing pain was caused by her 1993 injury. In those circumstances the appellant is not eligible to continue receiving entitlements. • The reports of Mr MacDonald and Dr Lethlean are to be preferred to that of Dr Bok, whose opinion is too simplistic. • The medical evidence does not establish any causal link between the accident and the appellant's present symptoms of fibromyalgia. • A temporal connection is not sufficient to establish a causative link. • The onus is on the appellant and she has not discharged that onus. DECISION [7] The respondent suspended entitlements to the appellant on the basis of the opinions it received from Mr MacDonald and Dr Lethlean shortly before making its decision. However, a total of five specialists have seen the appellant and opined on her condition and all are in agreement that her symptoms, at least from May 1996 onwards, were those of fibromyalgia. [8] The appellant's injury for which she obtained cover was described as a soft tissue injury and such an injury would not be unexpected having regard to the fall which she suffered at the edge of the swimming pool. [9] Consequent upon persistent and ongoing back pain, there have been exhaustive examinations of the appellant's spinal region, including X-rays and an MRI scan, and it 7 has been determined that the circumstances of the accident did not give rise to any structural injury to the appellants spine, right from her neck down to her lumbosacral junction. It is the case that disc or spinal injury has been eliminated as being a possible cause of ongoing pain. Similarly it has been identified by neurologists that there is no nerve root compromise arising from any disc movement. The pain area is quite diffuse and no source can be identified, hence the diagnosis of fibromyalgia. [10] Dr Hancock identified the nature of fibromyalgia when he indicated that its principal feature was a central sensitization of the nervous system. This particular medical condition has been the subject of a considerable number of appeals before this Court in its Accident Compensation jurisdiction, and the Court has heard and read a substantial number of expert opinions on the subject. [11] From that wide-ranging, but generally uniform body of opinion, the Court can take judicial notice of the fact that the condition or phenomenon known as fibromyalgia, which also has other names such as 'regional pain syndrome' or 'chronic pain syndrome' involves a scenario whereby the nerves and nerve cells in the spinal cord have become unduly sensitized to stimuli from the periphery, so that even minor degrees of input, painful or otherwise, are perceived as significant pain. In such circumstances, even an innocuous touch will cause a receptor to communicate a message of pain further into the central nervous system, so that even a light touch or other non-painful stimuli can cause severe pain. [12] The Court notes that Dr Hancock labelled the appellant's condition as 'traumatic fibromyalgia' and this can be said to have been also stated to be the case by Dr Bok. Dr Gavaghan also identifies an accident related cause when she states: 'The development of fibromyalgia has a definite temporal relationship to her original accident, which would have resulted in soft tissue damage." [13] In the opposing camp, Mr MacDonald simply diagnoses the appellant has having 'diffuse spinal pain'. Whilst he accepts that the onset of this pain would have been caused by the soft tissue injury arising from the accident, he did not believe that the episode was now responsible for her ongoing symptoms. He gives no reason for this belief and I find that in the absence of reasoning, it is difficult to set too much weight to that opinion. 8 [14] Finally, there is the evidence of Dr Lethlean. He too accepts that the initial injury, being a soft tissue injury, may have led to the condition of fibromyalgia, but in the case of this appellant he was not prepared to give his opinion as to whether it was a psychologically determined matter, a physically determined matter or a combination. Despite sitting on the fence in terms of causation of the general concept of fibromyalgia, Dr Lethlean felt able to give his opinion that there was no direct physical/medical causal link existing between the soft tissue injury and the development of fibromyalgia. His opinion is expressed after he seems to have been comfortable with the term 'traumatic fibromyalgia' which he noted had been earlier referred to on the file made available to him. [15] I find the opinion of Dr Lethlean to be less than satisfactory in that he purportedly reserves to himself his own opinion on the aetiology of fibromyalgia but nevertheless is prepared to make a statement that there was no direct link from her injury in the case of this appellant. [16] As a matter of law, I find that the link need not be direct providing there is a link. [17] This Court has found it to be the case in a number of appeals that an incident of trauma or the suffering of a physical injury has progressed to the condition of fibromyalgia, which condition has continued long after evidence of the physical injury has dissipated. That large body of opinion, which has resulted in decisions in that regard, cannot be put to one side if justice is to be done in the present case. [18] The appellant was a fit and active 35 year old, with no previous medical history, be it physical or psychological, and so that whilst the Court accepts that the incidence of fibromyalgia is multi-factorial, in the present case there is the temporal connection and the onset of pain, initially from the soft tissue injury, but then remaining as it altered into the sensitization of her central nervous system of the spinal cord, as I have earlier described. [19] The onus on the appellant is to establish upon the balance of probabilities that her present medical condition is causally linked to the injury which she suffered and for which she obtained cover. In the circumstances I find that the evidence, on balance, satisfies that onus and that his appellant's fibromyalgic condition is more likely than not to be attributable to her covered injury. 9 [20] For the foregoing reasons, therefore, this appeal is allowed. The respondent's decision to suspend entitlements is hereby quashed. The effect of this decision is that the appellant is entitled to have restored to her all such entitlements that she may have been enjoying as at the date of suspension. [21] As the appellant represented herself, I make no order for costs. DATED at AUCKLAND this 23rd day of October 2006 Senthe M J Beattie District Court Judge 10