Poyner v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 1 18 /95 HELD AT CHRISTCHURCH IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN C J POYNER 89/94/ 0116. Appellant (Appeal No. DCA 85/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 6th day of September 1995 APPEARANCES Mr C Hutchison advocate for appellant Mr N Morrison for respondent DECISION OF JUDGE D A ONGLEY This appeal concerned a question of incapacity under s 37 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant suffered a back injury on 27 November 1992. Her acute symptoms eased by May 1993 but she was not able to return to work because she was at continual risk of further epsiodes of pain or discomfort. She claimed to suffer incapacity within the meaning of s 37 of the Act which is set out for convenient reference: 37. Test of incapacity - For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred or, where any of sections 44, 45, 46, or 49 of this Act applies, any other employment for which the person is qualified by reason of experience, education, or training or any combination of them. - 2 - The primary question of fact is whether her present disability is caused by a pre-existing degenerative condition or whether it is by reason of personal injury by accident and renders her unable to engage in her pre-accident employment. The decision depends on medical findings contained in reports furnished to the Corporation. The first report containing any detail was written by Mr D J Jones, orthopaedic surgeon on 26 May 1993: "Thank you for asking me to review the above who as you know has had problems with her low back and aching referred into her right leg not for quite a long period of time. She was working as the laundry supervisor at the Quality Inn Hotel but finished before Easter because of her back and since she has stopped physical work her backache has by and large eased There is an obvious structural problem in her back in that she has significant narrowing of the L4-5 motion segment which I am sure is the symptomatic level. whenever she increases the loading in her back and involves herself in any activity such as luxing, she becomes symptomatic. She is surprisingly comfortable currently. She is not requiring any other specific medication. I have really adopted a conservative role in the meantime but realistically longterm if the quality of life is compromised because of her back and sedentary activity then she is looking at an L4-5 fusion." On 22 June 1993 he reported: "Diagnosis: Failing L4-5 disc space Xrays Southern Cross Hospital 8th November 1991 showed a 50% reduction of the L4-5 space. Prognosis: When involving herself in any heavy physical activity, particularly bending and lifting, she will develop recurring episodes of back pain. Expected Length of Incapacity: The degenerative changes were noted on xrays in November 1991, her accident of 24th (sic) November 1992 was merely an aggravation of a pre-existing problem and I would have anticipated that her injury related symptoms would have settled over a three to four month period. The Corporation's ongoing responsibility for this patient is tenuous, unless she has had a previously registered claim in regard to her back." The last comment evidently referred to the causative question that arises under the Act. It is evident that the doctor's opinion was that it was difficult to regard the negative prognosis as a consequence of the November injury, but if the pre-accident condition was a result of some earlier accident then the Corporation would still have had a responsibility. The respondent's view of the medical reports is that the underlying condition had not itself been aggravated by the injury. The appellant believes that the injury has permanently aggravated a weakness of the spine that prevents her engaging in the kind of work that she did before her accident. To put it simply, the respondent contends that the medical opinion goes no further than to say that the symptoms following the November injury were only a first occurrence of pain and discomfort that was in any case destined to occur if the appellant engaged in work that put too much strain on her back. The respondent says that the appellant was prone to disabling back pain although she had not yet experienced it, and that after the accident the risk of - 3- further back pain continued but was probably no worse than before. The Corporation then asked appellant's doctor, Dr S for details of any previous back injury and he reported on 6 July 1993: "I. (R) sciatica with partial prolapsed IV disc on 8.11.91. This was caused by lifting. No previous record of any back trouble. 2. XRays were performed which showed marked disc narrowing at L4-5 (8.11.91 SCR 112753 3. She had a course of lumbar traction at that time and seemed to improve. I would have to accept that Mrs Poyner has wear and tear changes of her L4-5 disc, aggravated by lifting strain in 1991, and again in November 1992. I feel that the sciatica must be an acute episode, accident by injury, on both occasions, inevitably predisposed to by degeneration. She has seen only Mr Jones, but also by Dr Franzmeyer at Burwood, but I don't know what treatment she is being given." On 14 July 1993 the Corporation advised the appellant of its decision to cease earnings related compensation on grounds that her inability to return to work could not be seen as the result of the November accident. The appellant's advisers obtained a further report of 14 March 1994 from Dr C Franzmayr of Musculoskeletal Medicine Clinic. He referred to the circumstances of her accident, symptoms evident on examination, to her treatment in 1993 and to further recurrences of dysfunction in July 1993, October 1993, November 1993 and January 1994. He said: "This patient was also reviewed with low back pain prior to the described accident. I saw her for the first time in May 1992, when she was referred by Dr Chima. At that time she had signs of dysfunction on the 23 November 1992 and 27 November 1992. The patient always responded very well to mobilisations, manipulations and at times injections to trigger points. She was improving very nicely. However she is a patient with a condition which we term as recurring dysfunctions. I viewed X-rays of her spine on the 8 June 1992, from Southern Cross X-ray - lumbar spine AP and lateral. I saw normal bone structures, normal intervertebral spaces. I noted in my files 'L4-5 is tilted in AP view - the smaller appearance of L4-5 in the lateral view is due only to projection'. Summary: This patient suffered an accident in February 1993, as described, resulting in pain in the lower back on the basis of somatic dysfunction and a torn or partially ruptured muscle of medial gastrochnemius muscle on the right. She improved with treatment by myself and the physiotherapist in both the lower back and the right calf. I do not see her as a patient with a permanent disability due to the accident. However she needs to be seen as prone to recurring dysfunctions and when this recurs she again needs to be treated. It was correct of A. C.C. to accept her accident as described and to pay her earning related compensations for an appropriate time but, it was also correct that A.C.C. ceased that payment after she had improved from the described accident." - 4- Nothing in that letter tended to indicate that the November accident had effected a permanent change to her underlying degenerative condition. The aggravation was described by way of a dysfunction of limited duration. Dr Franzmayr said there was no permanent disability due to the accident and that he agreed with the Corporation ceasing payments after she had improved. Whether on not he was correct in his view of her eligibility for compensation, it was clear that he did not find evidence of a permanent worsening of her chronic condition. He referred to a condition of "recurring dysfunctions" and regarded the symptoms following the November accident as one of those dysfunctions. The review was conducted on 21 April 1994 but after the appellant's evidence was heard the hearing was adjourned and was not reconvened until 10 January 1995. Unfortunately the recording system malfunctioned and there is no transcript of the review hearing. It was agreed that the Review Officer should be provided with further reports after the hearing and before making her decision. The question whether the appellant had suffered a previous back injury was raised during the hearing and it was agreed that an enquiry should be made to discover any evidence of a claim for such an injury that might have occurred in May 1991 or November 1991. Dr Slassor then reported: "I have a record that Mrs Poyner strained her back whilst lifting, as you say, on the 9/5/91. I felt at the time that this was a muscle strain, and I don't think registered the accident, as it appeared to right itself at the time. However, there was a much more serious episode in November 1991 when again she was lifting a heavy weight and indeed developed a back pain, had definite signs of a (R) sided sciatica. In my opinion, an acute sciatica arises from an injury, whether or not there is pre existing pathology in the form of degeneration. I would simply make the point that at the age of 44 as she was in 1991, disc narrowing in the lumbar region is relatively common, aetiology poorly understood and is relatively symptomless unless aggravated by injury Mrs Poyner, I think, denies any form of back problem before the injuries of 1991, and I have looked back through the notes to 1982 and can find no history of any back complaint. Since the injuries of 1991, as I have documented, she has been seen on a number of occasions for pain relief and help. She has physio treatment in 1991. A recurrence of (R) sciatica symptoms in March 1991. The first registration number for her back injury I think was E0247658 as I did not register the injury at her Ist visit. She was seen by Dr Franzmayr for extensive treatment. I can only reiterate that I have documented injuries to her back on two occasions. No previous reference to her back. Most certainly a narrowed IV disc, presumably present prior to the injury, and recovery from the injury, abut I feel it cannot be denied that Mrs Poyner had no back problem prior to the injury. How on earth anyone can accurately attribute length of symptoms, severity of symptoms, and recovery from symptoms to this type of case, I really don't know. I can give you the facts, and I hope these help, but I'm not clever enough to argue percentages." On 17 January Mr Jones reported: "In reply to you letter of the 10 January 1995 my report states that xrays taken at Southern Cross Hospital on the 8 November 1991 in fact anti-dated her accident by one day and showed well established degenerative changes which would have been aggravated by but not caused by the injury." That information did not assist in establishing the appellant's contention that she had suffered a permanent worsening of her chronic back condition. The Review Officer considered the available information and concluded: "Mr Hutchison at the review hearings placed a good deal of importance on the earlier injury to Mrs Poyner in 1991. The Corporation I am satisfied has searched its records and it would appear that if this injury did occur no claim had been lodged in respect of it. I have not been persuaded by the available evidence that there is a relationship between Mrs Poyner's ongoing back pain and her accident of 1992. This being so I consider that the Corporation's decision of 14 July 1993 was correct and decline the review accordingly." She declined any order for costs, stating that the appellant had no supporting evidence when the hearing was first begun in April 1994 and had proceeded notwithstanding that the only further medical evidence produced on her behalf tended to favour the Corporation's case. I do not think that the lack of any transcript of the review is prejudicial to the appellant's case on appeal. The Review Officer made no adverse findings of credibility and while Mrs Poyner's own description of her history and symptoms is important, there is no reason to believe that it was not given proper weight by the Review Officer. It is not suggested that the medical reports were based on a misunderstanding of the appellant's self reporting and in the end it is those reports that must be given the greatest weight when deciding whether the Review Officer's decision was correct. Mr Hutchison submitted that the Review Officer failed to consider and explore the test of incapacity in s 37 of the Act. I do not accept that submission because the Review Officer set out the section and said that the appellant must persuade her that she was currently unable to engage in her pre-accident employment because of injuries she sustained when she was injured in 1992. Apart from Dr Slassor's comments, the weight of medical opinion expressed in reports available to the Corporation supports the respondent's argument that when the acute symptoms settled the underlying condition was no worse than it had been before the accident. The Review Officer correctly weighed the available evidence and reached a reasonable decision. I would have come to the same conclusion. The appeal is therefore dismissed. DATED at WELLINGTON this 6 th day of October 1995 DA Ongley, District Court Judge