Burns-Skeens v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2011] NZACC 34 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CHRISTINE BURNS-SKEENS (Al 385/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 9 November 2010 APPEARANCES Mr H Peart, Counsel for Appellant. Ms F Becroft, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 4 May 2009, whereby it suspended entitlements to the appellant on the basis that the appellant's ongoing symptoms and complaints were not due to her covered injury but were being caused by degenerative changes in her lumbar spine. [2] The respondent's decision identified that it was making that decision on the basis of a medical report which it had received from Mr Brian Otto, Orthopaedic Surgeon, dated 21 April 2009. [3] The background facts relevant to the issue in this appeal may be stated as follows: 2 In July 2001, the appellant was in employment as a shop assistant in a fruit and vegetable store and part of her duties included re-stacking shelves. On 8 July 2001, the appellant injured her back during a twisting motion whilst she was placing a load of bananas onto a shelf. In her words she said she felt something "tear" in her back. . Through her GP, Dr Dickey, a claim for cover was lodged giving as a diagnosis 'lumbar spine strain, L5 disc prolapse'. Cover was duly granted to the appellant for her injury. Because of significant back pain the appellant was certified as being incapacitated and as a consequence of that Dr Dickey referred her to Mr Michael Barnes, Orthopaedic and Spinal Surgeon, for assessment and treatment options. In a report dated 9 October 2001, Mr Barnes advised that he considered that the appellant's disc prolapse should be resolving and because of that he did not consider the need for further investigation or consideration of surgery. His final note to Dr Dickey stated: "Time will tell whether she suffers from low back pain on a permanent basis following this disc injury but if so it is unlikely to be severe." In December 2001 the appellant's case manager sought a medical case review from Dr Tony Chew, Occupational Medicine Specialist, and Dr Chew obtained an MRI scan of the appellant's lumbar spine for the purposes of his advice. In his report he identified that the MRI scan identified a small central disc protrusion at L5/S1, but all other lumbar discs were normal. It was Dr Chew's advice that he too considered that the appellant had a resolving disc prolapsed. It is the case that the appellant continued to struggle with back pain in her lower spine and for this reason Dr Dickey again referred her to Mr Barnes, and he considered that a further MRI scan would be of assistance . Mr Barnes further reported to Dr Dickey following the further MRI scan. He identified that she had a black disc at L5/S1. He further advised that a lumbosacral fusion should be considered. It is the case that the appellant did not wish to have any surgery and she continued to experience pain in her lower back. She continued to be accepted as being incapacitated and received weekly compensation. A number of further medical reports were obtained over the next few years, and one of relevance was provided by Mr J Hopkins, Orthopaedic Surgeon, in September 2003. Mr Hopkins' advice was that her long-term prognosis was reasonable, but he could not say what level of physical activity she would be able to achieve at that stage. His advice was that the appellant's problem was with her L5/S1 lumbar disc and that that condition was entirely due to the accident of July 2001, together with the recent re-aggravation which she had suffered. It is the case that the appellant re- aggravated her lumbar spine when she attempted to return to work on a part-time basis in or about July 2003. In September 2005, the appellant was referred to Mr Brian Otto, Orthopaedic Surgeon, for assessment and advice, and he provided a report, the details of which will be considered later in this decision. It is the case, however, that he agreed with the assessment previously made by Mr Barnes. Consequent upon Mr Otto's report, the appellant continued to receive entitlements and further medical assessments were carried out by Dr C Wong in September 2006, and Mr lain Kelman, Orthopaedic Surgeon, in June 2008. Those assessments confirmed the continuation of the appellant's injury condition as initially diagnosed. In April 2009, the respondent again referred the appellant to Mr Otto for a further assessment, and for the purposes of that 4 assessment he obtained a further MRI scan of the appellant's lumbosacral spine. Mr Otto provided a seven-page report, the bottom line of which was that it was his opinion that the effects of the original injury were spent and that the ongoing changes identified by him were reflecting degenerative changes within the L5/S1 disc. It was as a consequence of Mr Otto's advice that the respondent issued its decision of 4 May 2009 suspending entitlements. The appellant sought a review of that decision and a hearing of that review took place on 23 July 2009, at which the appellant represented herself. In his Review Decision dated 4 August 2009, the Reviewer, Mr H Sanderson, noted that the appellant had not presented any expert evidence that called the assessment of Mr Otto into question, and he considered that there was nothing to contradict the clear evidence of Mr Otto that the cause of the appellant's ongoing problems were not as a consequence of the injury by accident but were being caused by the degenerative condition from which she suffered. The respondent's primary decision was therefore confirmed. For the purposes of the appeal to this Court, Counsel for the Appellant has introduced a further medical report from Mr Barnes. [4] As noted, the respondent made its decision on the basis of advice it had received from Mr Otto, and as earlier noted Mr Otto had first examined the appellant in October 2005 and at which time he was made privy to the earlier medical reports. [5] As part of his physical examination of the appellant at that time he noted that she had difficulty with certain movements and he commented as follows: The main level of discomfort was in the lower lumbosacral area of the lumbar spine at L5-S1, and she described radiation of symptoms into both the left and right buttocks, but more pronounced on the left side. I noted that when she flexed her fingertips reached almost to the mid shin. Extension, lateral flexion and 5 rotation were limited at the extreme, but she didn't have any particular nerve compressive symptoms on extension and compression to the left or to the right, and her ankle and knee jerks were intact, but there was some numbness and motor point tenderness in the L5 distribution in the lateral aspect of the calf on that side compared with the right, so that there are indications that she had some nerve root involvement, particularly L5 nerve root on the left side. The predominant symptoms at this review appeared to be mechanical symptoms in the spine with minor neurological changes, and the bulk of the symptoms appeared to be emanating from the L5-S1 level. Mr Otto then provided his opinion, which stated, inter alia, as follows: She has had attempts at resettlement in work and has been through exercise programmes and drug management programmes and had a Pain Specialist opinion, but all the information that is available points to the fact that she has had a injury with a central disc protrusion at the L5-S1 level, which remains unresolved and is generating symptoms and interfering with her ability to return to gainful employment. The original review by Mr Barnes is entirely accurate in that he identified the central disc at L5-S1 as being the major cause for her symptoms. He identified the fact that this had been produced by the injury that she described, and he was prepared to go ahead with a discogram to prove that that level was symptomatic before offering her a 1 level interbody fusion, to resolve her back pain problem. Mr Otto then further stated: In reply to your specific questions: Under question 6? The specific incapacity and disability are due to a personal injury by accident as described, occurring on the 20" July 2001, when she lifted 3 x 17 kilogram boxes of bananas to place them on a shelf. The central disc protrusion at L5-S1 and the consequent symptoms can be identified as arising from that event. In Mr Otto's report of 21 April 2009 he stated, inter alia, as follows: The issue remains that she has a small change in the L5-S1 disc with principally dehydration and a small annular bulge, which is mainly central, but in the background she is a married woman and has had five children, and there was the potential for the L5-S1 disc to change and undergo degenerative change, reflected in the loss of proteoglycan and the central disc bulge, so that the issue as to whether or not the injuries that she has described, have unmasked underlying degenerative changes within the disc, remain of significant concern in the overall entitlement in this case. Normal discs do not protrude. The force required to cause a disc protrusion is a significant force, but if the disc is showing prior early degenerative changes, then for force required to produce a disc bulge or small annular tear and protrusion, is of the level that she describes in the original episode of lifting the banana boxes. It then raises the questions as to whether the lifting event that initiated her symptoms simply unmasked underlying degenerative changes and that her current status is not entirely or wholly or substantially due to personal injury by accident. As noted, Mr Otto had obtained a fresh MRI scan for the purposes of his assessment and he commented as follows: 6 For the purposes of this report, an additional MRI scan has been completed on the Tesler 3 machine which is more sensitive, this was carried out on the 9" April 2009 at the Specialist Radiology Group, and the earlier scans were used for comparison and the finding suggest that there may have been a slight increase in the size of the left paramedian disc protrusion compared with the Auckland Radiology Group of the 9" November 2007, annular tearing of the disc is more clearly demonstrated and of interest is the fact that degenerative changes are established in the facet joints posteriorly with loss of cartilage, and hypertrophy of the fact joints, and that reflects the weight and obesity and loading of this disc which is undergoing degenerative changes, so that the features are more in keeping with disc degeneration than the suggested injury component, as the main driver of the current clinical symptoms. He further stated: It is now clear that the degenerative changes are becoming established within the L5-S1 segment with loss of cartilage on the back of the facet joints, and those are clearly degenerative changes, so that her symptoms now are more in keeping with what is expected based on disc degeneration than the effects of personal injury by accident. ... ... She essentially has changes at the L5-S1 level, which on the modern MRI scan is indicating that there are changes in the whole of the motion segment more accurately reflecting disc degenerative disease and secondary facet joint degeneration, enough to account for the mechanical back pain. As outlined, I believe that normal discs do not protrude, or if they do, they require a severe injury force. That is not the history of her back pain onset. Lifting boxes of bananas may have served to unmask the underlying changes within the disc and produce a small central disc bulge His final word, as it were, was that the effects of the original injury were spent and that the ongoing changes that were evident to him were reflecting degenerative changes within the L5-S1 disc. [6] Mr Barnes provided a report and he did so after receiving and considering the reports of Mr Hopkins, Mr Kelman, and Mr Otto. Mr Barnes commented as follows: It was four months from the time of the injury to the initial MR scan, 6 December 2001, and this scan showed abnormalities only at the lumbosacral level with a small central disc protrusion which at that stage did not appear to be compressing the S1 nerve root but it is almost certain in my opinion, that a disc protrusion had effected this nerve root and the likely conclusion is that the offending disc fragment had resorbed by the time of the scan four months later, which commonly occurs. [7] He then gave as the appellant's current diagnosis as follows: Chronic low back pain arising dominantly from the lumbosacral motion segment as a result of pathology involving the disc and facet joints. Her pain has always been at the lumbosacral level. She has well documented clinical evidence of a previous disc protrusion at this level causing some permanent effects in the left lower extremity. The lower back pain is effected by all the usual factors which 7 load the lower lumbar spine such as prolonged standing, lifting, changing position, etc. ...It seems clear that the current symptoms were initiated by a lifting injury to the lumbosacral disc. All the evidence points to the fact that this caused a disc protrusion, that is to say a disruption of the discs and that subsequently aided a degenerative process ensued which has been documented on serial MR scan. There is no definitive answer as to whether or not degeneration may have ensured at the lumbosacral level without injury and to what extent this would have occurred as it is known that degeneration in the discs and joints of the spine can occur in the absence of injury. However, in this case it seems absolutely clear that the degenerative process was triggered by this injury. ... It is more likely in my opinion, the lifting injury which caused the protrusion also caused the current degeneration rather than it being purely coincidental. [8] Mr Peart submitted that the evidence establishes that there is clear record of disc injury, and further, that there was no pre-existing degeneration. He submitted that the specialist evidence of Mr Hopkins, Mr Kelman and Mr Barnes clearly identify an ongoing causal nexus between the appellant's disc protrusion at L5-S1 and her ongoing pain which is arising from that area of her lumbar spine. [9] Ms Becroft submitted that the original injury was only a minor prolapse which was identified initially as resolving. She submitted that Mr Otto in his 2009 report had the opportunity of an overview of all the evidence, including a more detailed MRI scan. She further submitted that Mr Barnes' use of the word 'triggering' when he talks of the degeneration being trauma related, and she submitted that the degeneration was not caused by the event of injury. DECISION [10] Whilst I have not included all the medical evidence that has been presented to the Court within this Judgment, nevertheless it has all been considered and it is the case that all specialists identified, and continue to identify that the cause of the appellant's ongoing lumbar pain was as a consequence of the disc protrusion which had occurred at L5-S1, and which remained. [11] I find, on the evidence, that there is a clear record of a disc injury, and it seems to me that Mr Otto has changed his view by simply identifying that the appellant's condition is now one of degenerative change. 8 [12] I find it of significance that whilst Mr Otto states that normal discs do not protrude, he indicated that the force required to cause the disc protrusion would be significant, but he did acknowledge that the force required to produce a disc bulge of a type experienced by the appellant, could occur from the level of force that she experienced if it may have been showing early degenerative change. [13] The latest advice from Mr Barnes is quite clear and that it is a fact that the force of the accident event caused the disc bulge, and whether it be from an otherwise strong and healthy disc, or from one that may have had some underlying early degeneration, does not matter. The appellant's pre-injury physical condition must be accepted as it was found, and it can only be that the twisting event caused a more serious problem than might otherwise have been the case. It is to be remembered that the appellant said she experienced a significant tearing sensation. [14] The appellant's physical condition has remained that of pain arising from the L5/S1 disc protrusion, and that situation has not altered. If it be the case that some further degeneration has occurred in that disc, then it is equally likely to be the case that that degeneration is trauma related, and I find that the opinion of Mr Barnes is to be accepted, namely that in the case of this appellant the degenerative process was triggered by the injury, and I take his meaning of 'trigger' to mean 'cause' or 'commence' [15] It is of significance that all the MRI scans have identified no degeneration and the latest MRI scan of April 2009 identified that all other discs were well preserved. [16] Having regard to the medical evidence, and in particular the fact that the appellant's condition has remained unaltered, and as earlier noted, Mr Otto was quite clear when he identified the appellant's disability as being due to the personal injury described and having occurred in July 2001. Furthermore, at that time he specifically agreed with the opinion and advice of Mr Barnes. [17] Turning now to the legal requirements of Section 117, it is of course the case that the onus is upon the respondent to establish that there is a good basis for it to be satisfied that the appellant is no longer entitled to continue to receive entitlements. When the matter reaches appeal level, it is the Court that must identify whether there is evidence upon which it can be so satisfied, and in the 9 present case I find that there is no such evidence, and in fact the evidence points entirely the other way and being in favour of the appellant. [18] Accordingly, therefore, I find that there was no sufficient basis for the respondent to make its decision suspending entitlements to the appellant and that decision is hereby quashed, with the effect that the appellant is entitled to have all her entitlements reinstated which were so suspended by that decision. [19] The appellant being successful, I allow costs in the sum of $3,000 together with qualifying disbursements. DATED this 4 day of February 2011 Dearthe M J Beattie District Court Judge