Harkness v Accident Rehabilitation and Compensation Insurance,Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 3 63 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRUCE JAMES HARKESS Appellant (Appeal No. DCA 248/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of November 1999 APPEARANCES Mr A Cadenhead - counsel for appellant Mr A D Barnett - counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is the correctness of the Corporation's decision of 8 July 1996, upheld on review, declining ongoing entitlements to the appellant on the basis that his continuing symptoms and incapacity were not attributable to the personal injury by accident suffered by him on 15 December 1993 and in respect of which cover under the Act had been granted. The facts which I find are relevant to the determination of this issue are as follows: 2 The appellant is now aged 46 years and has spent virtually the whole of his working life as a merchant seaman. In 1972 he suffered severe back injuries in a fall whilst at work. He suffered compression fractures of at least two levels of his mid and lower thoracic spine. After surgery and convalescence the appellant made a full recovery and resumed his occupation as a seaman. In December 1993 the appellant was employed by Milburn NZ Limited on a cement carrying ship and on 15 December 1993, in the course of handling heavy cement discharge hoses he suffered a strain to his back. In evidence the appellant said that the accident happened shortly before he was due to finish work and commence a period of leave and for this reason he did not see anyone about the injury at that time. Indeed it was not until 27 January 1994 that he consulted his GP Dr Elliott who diagnosed acute back strain and certified him as unfit to resume any duties from that date. For the record it should be noted that the respondent's file shows that it has two copies of the same claim form. One copy describes the diagnosis as being "acute back strain" and another copy which is in a different ink and in a different handwriting and with those words twinked out has the following notation "p/h - severe back injury - repeated occupational back strain - including 15/12/93 - since - gradual process claim". The claim was treated as a gradual process claim by the respondent who sent out questionnaires to the appellant's GP and to the employer. The employer seemed not to have responded at this time but his GP did and traced his history back to his 1972 accident, stating: "The patient was pretty symptomless for some years after the recovery of the original 1972 injury. Then in the late 1970s - say 1979 gradual appearance of recurrent back pain to strain episodes handling heavy ship equipment began to 3 appear and became more persistent and more troublesome requiring treatment." The appellant's claim was considered under s.7 of the Act and was rejected on the basis that his injuries were found not to be related to employment activities but rather to his pre-existing condition. In a letter dated 3 May 1994 Dr Elliott, the appellant's GP, disputed the suggestion that his current condition was attributable to the 1972 accident and said that the appellant had made a complete recovery from that accident and that his condition was as a consequence of repeated strains in the course of his work and which reached a culmination in the injury of 15 December 1993. At about the same time the employer, Milburn NZ Limited, entered the scene and the person who was in charge of such claims stated "I believe this is a genuine work related accident and I regret that my negligence in dealing with the claim has complicated the situation with ACC". A further claim was made for the back strain being a personal injury by accident and this was accepted by P & | Services Limited as agents for the Accident Compensation Corporation and thereafter the appellant commenced to receive entitlements under the Act, being both treatment expenses and weekly compensation. Dr Elliott had referred the appellant to Mr D I Walton, Orthopaedic Surgeon, in March 1994 for advice and in his report to Dr Elliott Mr Walton stated, inter alia: "X-rays show the lumbar spine totally normal and the thoracic spine certainly shows wedge fractures of at least two levels at T7 and T10. There may be some interference with T9 as well and there has been resulting some curvature develop which clinically is borne out. 4 This man has a very complicated pain problem and this both structural. Of greater concern to him was that he was predicted to have problems in later life and at 41 he is a bit surprised that the symptoms have come on to this extent at this age. I personally doubt whether he is going to be able to continue at sea. I think that the symptoms as they are it really is going to be a matter of repeat injury, this occurring on a fairly frequent basis and demanding he be laid off. 1 think furthermore that there is actually very little that we can do about this pain problem, which may indeed involve the spine but could also be related to the rib heads and the connection with the transverse processes, so often a cause of chronic discomfort." In May 1996 Mr Walton made a report to the respondent at the request of its Branch Medical Adviser and he stated, inter alia: "I found he had quite a lot of tenderness pain and spasm in the thoracic spine and I thought in general terms the fractures that he had back in 1972 were rather instrumental in paving the way for his subsequent pain. He did not mention to me any specific further injury but did indicate that he became gradually more concerned about his pain in the last five years or so. I note in the notes there was some mention of some back pain from his GP coming on from 1970-1979 and the fact that in 1993 there had been some further event. However I would, with a normal lumbar spine x-ray have expected very little in the way of pain before his major fracturing in 1972. I further think his type of work and the damage to his thoracic spine has led to his ongoing symptoms and although these have developed some years later the situation and character of the pain relates as it does so often to fractures of this type." In a further report dated 11 June 1996 to the respondent's Branch Medical Adviser Mr Walton stated, inter alia: "It is abundantly clear if this man had not fallen as a seafarer injuring his thoracic spine he would be still capable of work that he had at Milburn Cement. I think that he has had further incidents of pain in relation to work but these do not constitute accidents as such. Personally the ongoing disability now I would say or at least when I saw him in March 1994 (and I have not seen him since) I felt was certainly exacerbation of a pre-existing problem. ... However the eligibility for ACC is a matter for you people to decide as I would personally suggest that his ongoing disability relates to the accident in 1972 rather than to sequential damage from heavy physical work." As a consequence of that advice from Mr Walton the appellant's case manager advised the appellant by letter of 8 July 1996 that it was ceasing ongoing entitlements as it considered that his ongoing back problems could not be attributed to the accident of 15 December 1993. The appellant sought a review of that decision and it was at this point that Mr Cadenhead became involved as his counsel. The appellant was referred to Professor Hugh Burry, Consultant Rheumatologist and after examining the appellant Mr Burry reported on 26 February 1997. After reviewing the history Mr Burry stated, inter alia: 'Examination reveals that there is tenderness in the soft tissues adjacent to the 7th thoracic vertebra on the left side, and it is clear that his ongoing symptoms are related to some abnormality of the soft tissues, or possibly underlying joints between the adjacent vertebrae or the costa vertebral joint. Therefore it would appear that Mr Harkess is entitled to compensation on the basis of work induced accidental aggravation of a pre-existing abnormality. The painful deterioration in his spinal function which followed the event in 1993 would seem to constitute aggravation of an underlying pre-existent condition 6 and would therefore appear to me to fall within the purview of the Accident Compensation Act." Mr Burry's report was submitted at the review. After the review hearing, which took place on 26 May 1997, but before any decision was given, the Review Officer sought clarification from Dr Elliott as to when the appellant may have first consulted him regarding the injury to his back and Dr Elliott provided a copy of his notes which showed that the appellant did consult him on 13 January 1994. The notes for that date say "old injury to low TH-LH spine - not a lot of pain but -> slightly to lodge ACC claim - for X.R." The next entry is the entry for the visit of 27 January 1994, described "another long session re-establishing claim re his back - M46". In his decision dated 15 July 1997 the Review Officer notes that although the appellant's claim was accepted, he said there was very little evidence available to the Corporation at the time of the appellant having suffered personal injury by accident. He noted that no accident of 15 December 1993 was ever reported and that he did not seek treatment for nearly a month. He noted that Mr Walton had identified worsening of symptoms but he had no information about any specific event and Dr Elliott's records had made no mention of any specific event. The Review Officer considered that these factors indicated that any incident which may have occurred in December 1993 was no different from possibly many other incidents which had occurred over the previous years in the course of his job. The Review Officer accepted the opinion of Mr Walton. He considered that he could not accept the advice given by Prof. Burry by reason of the fact that Prof. Burry had formed his opinion based on an incorrect history, in particular that he understood the appellant to have sought medical advice some two days after this December 1993 incident which was not the case. Accordingly the respondent's decision to cease further entitlements was confirmed. 7 For the purposes of appeal from that decision to this Court, Mr Cadenhead has obtained a further medical opinion, this time from Dr C Franzmayr, Consultant in Musculo-skeletal Medicine. Dr Franzmayr's report is dated 16 February 1999 and states, inter alia: "Examination: He is restricted in the spine when bending forward and also sideways. He has signs of dysfunction of the common combination for the back and lower back, with a scoliotic hump in the thoraco lumbar junction on the right and in the mid thoracic spine (underneath the left scapula) on the left. Segmental examination reveals the main restriction to be at T9/10, T10/11 on the left when rotating to the left, but also T5/6 right, L3/4 right and L5S1 left. There is the 6th right rib blocked in expiration restriction (and so the ribs further down from 6 on the right are unable to move). He has tense paravertebral muscles in the thoracic spine and the thoraco lumbar junction, more so on the left than the right. Skin roll test was extremely sore on the left in that area and sore on the right hand side. There is no abnormal neurology to the legs. This means he has symmetrical reflexes, normal muscle strength in the key muscles served by the lumbar nerves and sensitivity in the dermatomes is symmetrically normal. Investigations: Unfortunately the old xrays were no longer available, but I viewed xrays taken on 29.05.98 from Christchurch Hospital and this shows a fracture of the T12 upper endplate, an irregularity at the upper end plate of T10 which could be old fracture but could also be an old Schmorl node. He has a wedge shaped vertebra at 17 which is lower in the front than the back. Pelvis AP view shows no fracture. Comment: 8 The facts are that the injury of 1972 with subsequent fracture has healed so that the patient was finally able to carry out heavy physical work again until his accident of 1993 which was accepted as an accident by A. C. C. at that time. When the patient was able to carry out heavy work from 1973 until 1993, a time period of 20 years without any complaints during that time I have difficulty accepting that his current complaints are due to the old fracture sustained in 1972. I would consider this to be a statement without foundation, rather I would have to accept that his current clinical findings and, the described dysfunctions, are due to and acquired during his accident in 1993. The pathology of dysfunction has been described by a Colleague of mine, Professor Karel Lewitt from Prague, as-insidious because on the one hand it is often overlooked by the medical profession and on the other hand it does not heal like an untreated wound or untreated fracture, rather it remains with the patient for years and as long as these described joints do not function, are restricted in movement, there is tension in the joint capsule and in the surrounding muscles. When the patient moves across these joints, especially when making a jerking movement, he may cause increase in pain and sometimes a severe increase in pain. Mr Harkess experienced this about 6 months ago when he lost his footing and fell onto his buttock and has severely increased his pain level. At the time of examination the patient had extremely tense paravertebral soft tissue. The injury from 1993 left him incapable of carrying out full-time physical work and as the medical profession to date has not solved his problem I see this as still being the entire responsibility of the A.C.C.. This is in keeping with the viewpoint of Professor Burry." The respondent did not seek to introduce any further medical evidence. Submissions Mr Cadenhead, counsel for the appellant, submitted that the Review Officer had considered this matter from an incorrect perspective, in that he seemed to focus on whether or not there had been an accident causing injury in December 1993 rather 9 than simply concentrating on the acceptance of that fact and determining whether the appellant's current condition could be attributable to that accident. Counsel submitted that the Corporation had accepted the fact of an accident and had granted cover and entitlements accordingly, and that the sole issue was whether the appellant's current condition could be attributed wholly or in part to the injuries sustained in that accident of December 1993. Counsel further submitted that any error of fact which Professor Burry may have stated was certainly not germane to his examination and diagnosis, and that there was no basis to discount his report because of an error as to the time when the appellant first sought medical attention. Counsel referred to the orthopaedic/soft tissue dycotomy which was evident from the medical evidence submitted on the one hand by Mr Walton and by Professor Burry and Dr Franzmayr on the other. Counsel submitted that there may well have been difficulties arising from the thoracic spine fractures but equally there could also be soft tissue damage arising from the 1993 accident - the two running intertwined from the time of that 1993 accident. Counsel submitted that it was not necessarily a question of one being right and the other wrong and that both opinions could be compatible with each other. Counsel submitted that the evidence from Professor Burry and Dr Franzmayr established a reasoned soft tissue diagnosis which established causation from the December 1993 accident as being a cause of the appellant's present condition. Mr Barnett, counsel for the respondent, submitted that the issue posed a simple test of causation and he contended that the medical opinion did not establish, on the balance of probability, that by July 1996 the appellant was suffering ongoing symptoms as the result of an injury caused by the event of 15 December 1993. Counsel identified the fact that the appellant had displayed recurrence of symptoms from the 1972 injury from 1979 onwards, there being various references to that fact 10 from his GP, Dr Elliott, and he noted that initially Dr Elliott was treating the appellant's condition as a gradual process claim. Counsel submitted that the evidence disclosed that no real significance was placed on any event of December 1993 and it is only much later that there appears to be more focus on it. He identified Dr Elliott's notes of 13 January 1994 which refer to the old injury with a slight increase in pain rather than any new acute event. Counsel submits that Mr Walton was the treating Orthopaedic and his view should be preferred to those of Professor Burry and Dr Franzmayr who have only examined the appellant some years after the event. Counsel submitted that if it is acknowledged that the appellant had ongoing symptoms between 1972 and 1993 then the description of the pathology of dysfunction referred to by Dr Franzmayr is an apt description of what has happened to the appellant as a result of the accident in 1972 rather than a description of an aggravating injury in 1993. Finally counsel noted that the appellant had been advised right back at the time of his 1972 injury that he would likely experience pain and problems in later life. Decision The determination of the issue in this appeal requires an appraisal of the medical evidence but in addition I consider the surrounding circumstances at the time of various events are also relevant. The appellant had suffered fractures of his thoracic spine when he was 19 years of age but it was the advice from his GP that he had made a complete recovery from those injuries and had been engaged in work for the ensuing 20 years which did involve heavy lifting and straining as might be expected from tasks usually carried on by merchant seamen. In Dr Elliott's letter to the Corporation as a response to its letter advising declination the appellant's gradual process claim, Dr Elliott said that it was quite incorrect to contend that his condition did not relate to his employment. He went on to state: 11 "This man works as a seaman lifting heavy cables and has suffered repeated back injuries as a result of this. The injuries in themselves are often minor events which he chose to ignore and continue working. It is also true that he had a pre-existing condition due to an acute accident in 1972. I nonetheless felt this man had reasonable grounds for applying to ACC because of his repeated use of heavy cables in the normal course of his employment activity and the strains that ensued from this. It was considered that he had made a complete recovery from his 1972 accident and that the repeated strains reached a culmination on the date shown i.e. 15/12/93." This seems to encapsulate the evidence as I find it as to the appellant's history of back problems prior to the December 1993 incident. It is noted that the appellant himself acknowledged that there had been occasions over the preceding five years where he had suffered back strain and this may well have coincided with his increasing age, he no longer being a young man but by then being a man in his 40s. The Court notes that in contrast to those incidents, however many there were or how severe they were, they did not involve the appellant in having to have time off work and in his evidence at the review hearing he said that when these incidents occurred he did a few stretches and "it'll be right'. That was the pattern until the incident in December 1993. The medical evidence is that the appellant did begin to suffer from an incapacitating injury and one that a few stretches and a bit of rest did not cure, or more particularly, allow him to resume work. The inference I take from this is that something did occur in the lifting incident on 15 December 1993 that was of greater magnitude than all the other little niggles that may have preceded it over the preceding few years. The appellant gave evidence, both in statements to the respondent and at the review hearing, of the circumstances of how the injury occurred and what he experienced. The appellant was lifting a heavy pipe or hose used for pumping concrete. The pipe came off a crane and it had to be manoeuvred and connected and it was during this lifting of the pipe onto his shoulder and wiggling it around to get it into position for it 12 to be bolted that he felt his back go. The Review Officer heard this evidence and stated in his decision that the appellant impressed him as being credible. I accept the submission of Mr Cadenhead that it was not the function of the Review Officer, nor indeed of this Court, to seek to inquire into whether in fact there was an accident on 15 December 1993, as that was not the issue. The respondent has accepted that the appellant suffered personal injury by accident, that fact being confirmed by the employer, and it proceeded to provide benefits and entitlements pursuant thereto. The sole issue for this Court is to determine whether or not the appellant is still suffering from the effects of that injury or whether it is wholly or substantially for some other reason that he is currently incapacitated. If the incident of December 1993 is looked at in the context in which this appellant has previously dealt with various problems associated with his back, he of course being aware that there may be problems with his back because of that severe injury back in 1972, I find it is not unusual for him to simply look at it as a layman and to consider it as being another incident where he has done some physical act which has affected his old spinal injury. That is the way he looked at it and said so in his evidence. However that does not necessarily mean that in fact the situation accorded with his belief or understanding. This leads on to a consideration of the orthopaedic/musculo-skeletal dycotomy referred to by Mr Cadenhead. Mr Walton saw the appellant in 1994 and noted from his examination and x-rays the fact of the compression fractures of his thoracic spine. He noted that the appellant had a fairly complicated pain problem. His assessment was based on what he considered an abnormal thoracic spine contour and said that the type of work that he did and the damage to his spine has led to his ongoing symptoms. Mr Walton acknowledged that the nature of his work could have exacerbated his condition but that was the extent to which he sought to look into any injury that may have occurred by any event of exacerbation. In contrast to that Professor Burry and Dr Franzmayr have looked into the event of December 1993 and sought to identify precisely what it was that occurred and how it 13 may have differed from the previous events which were minimal in their impact. Both Professor Burry and Dr Franzmayr examined the appellant and in the case of Professor Burry he stated: "Examination reveals that there is tenderness in the soft tissue adjacent to the 7th thoracic vertebrae on the left side. It is clear that his ongoing symptoms are related to some abnormality of the soft tissues, or possibly underlying joints between the adjacent vertebrae or the costa vertebral joint." Dr Franzmayr advised that it was his opinion that the appellant's current condition were due to and acquired during the accident of December 1993. Dr Franzmayr went on to describe the dysfunction that can occur between joints and surrounding muscles. I note the criticism made of Dr Franzmayr's opinion by Mr Barnett, Dr Franzmayr stating that the appellant was able to carry out heavy work from 1973 to 1993 without any complaints during that time and therefore he had difficulty accepting that his current complaints were due to the old fracture sustained in 1972. From the evidence the basis for that comment could not be said to be correct as the appellant had had minor problems with his back from time to time over the years during the course of his work but these were episodic and did not involve him taking any time off work and so must not be considered to be significant in the scheme of things in my view. Therefore Dr Franzmayr's opinion, I find, still has a validity as there certainly had been no earlier episodes which had brought about the disabling condition which had occurred after the 1993 episode. In any event there is no evidence to suggest that it was that particular part of his back that was a problem and it must be accepted as common knowledge that various parts of a back can be strained in any particular physical exertion and there is no evidence that it was always the same part of his thoracic spine that suffered when he had these twinges. 14 Dr Franzmayr noted, as had Professor Burry, that the appellant had extremely tense paravertebral soft tissue and he concurred with the opinion of Professor Burry as to the origin and cause of this state of affairs. When one looks at the matter objectively I find that there was an event in December 1993 which was quite different from any of the others that had preceded it. It has caused ongoing disablement and I find that the evidence does not establish that it is solely just his old thoracic spine injury reasserting itself when two eminent musculo-skeletal experts identify a soft tissue injury in that weakened area as being the cause of his present condition, that soft tissue injury arising during the heavy lifting event of 15 December 1993. For this reason therefore I find that the respondent was wrong to attribute the sole cause of the appellant's present condition to his 1972 injury and that the truth of the matter is that the appellant did suffer personal injury in an event and it was that event which has caused his disability. Whilst his pre-existing thoracic spinal condition may have contributed because of its weakened condition, that does not affect the fact that the injury was not an orthopaedic injury to the spine itself but a soft tissue injury caused by the weakened spine. The effects of that soft tissue injury are still present and are the dominant feature of his present condition. This state of affairs is quite different from the situation where an event exacerbates a pre-existing condition so that it is the pre-existing condition which is the cause of the ongoing disability or incapacity. In the present case Professor Burry and Dr Franzmayr have identified a separate injury which may have occurred because of the pre-existing abnormality but it is not the abnormality which is itself causing the problem. For this reason therefore I distinguish the decisions of this Court such as Tran (decision 220/90) and Hill (decision 189/98) which indicated that flare-ups of pre-existing conditions do not allow for cover under the Act. In the present case there is no pre-existing soft tissue injury attributable to the 1972 accident and it would only be if that were the state of affairs could it be said that the incident of December 1993 exacerbated or aggravated that condition. The pre- existing condition of the appellant's thoracic spine is quite a separate condition from the soft tissue injury which the appellant sustained in December 1993. 15 Accordingly therefore I find that the medical evidence establishes, on the balance of probabilities, that the appellant is still suffering from the effects of that injury and is therefore entitled to continued benefits of cover under the Act. The respondent's decision to cease entitlements to the appellant is hereby revoked to the intent that the appellant has cover and entitlements restored to him as from the date of the decision to revoke those entitlements. The appellant is also entitled to costs which I fix at $1,200, together with any costs associated with the presenting of Dr Franzmayr's report. DATED at AUCKLAND this 13day of December 1999 M J Beattie District Court Judge DCA248-97.doc(J9)