Grant v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 87 199 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 CHRISTINE MARY GRANT DCA 484/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 24th day of February 1999 APPEARANCES: Ms F Taylor advocate for appellant Mr J D Palmer counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct in its decision of 23 June 1998 to cease entitlements for the appellant on the grounds that the present condition and symptoms were not attributable to the personal injury by accident for which he had been granted cover. 2 BACKGROUND The appellant is a registered nurse, now aged 53 years. In August 1991 she sought cover in respect of back strain said to have occurred whilst lifting a patient and cover was duly granted to her for the cost of treatment and the time of work as a consequence thereof. On 23 March 1997 she again suffered a back strain whilst lifting a patient and although she attempted to continue working in the days thereafter with painkillers, the situation of her pain was such that she went off work on 22n April 1997. Cover was accepted for this injury. Her GP, Dr Meikleham, gave as his diagnosis lumbar strain but this changed in a subsequent medical certificate to nerve root irritation. Thereafter, the certificates evidenceng her unfitness for work described the original diagnosis as being nerve root irritation causing lumbosacral pain. The appellant underwent a course of physiotherapy and received weekly compensation and costs of her treatment. In September 1997 the respondent sought an opinion on the appellant's present condition from Mr Grant Cowley, Orthopaedic Surgeon. Mr Cowley examined her on 29 August 1997 and had x-rays taken. In his report of 12 September 1997 he advised that x-rays of the lumbar spine revealed moderate degenerative changes at the L4/5 disc. The disc space was narrowed and lipped. There were minor degenerative changes at L3/4 as well. Mr Cowley gave as his opinion that the appellant had mechanical lower back pain in association with lumbar disc degeneration. He advised that these degenerative changes radiologically are most marked at L4/5. He advised there was no evidence of lumbar disc protrusion, nerve root compression or spinal stenosis. I:\AUTHORIT\BEATTIE\grant.doc w Mr Cowley advised that he felt it would be appropriate for the appellant to consider an alternate work environment and doing work which minimised mechanical stress on the lower back and did not involve lifting or carrying or prolonged flexed posture of the lumbar spine. The appellant continued to receive weekly compensation and vocational rehabilitation was investigated. In February 1998 the respondent reassessed the appellant's position and formed the view that the report from Mr Cowley in fact indicated that her incapacity was related to degenerative changes from the ageing process rather than from accident and as a consequence thereof it did by a letter of 3d February 1998 advise the appellant that it was cancelling her entitlements pursuant to section 73(1) of the Act. The appellant sought a review of that decision and a review hearing was convened but it seems that the Review Officer thought it desirable to obtain further clarification from Mr Cowley before finally issuing a decision. The Review Officer posed the following questions to Mr Cowley. 1. Do you consider Mrs Grant's lumbar disc degeneration to be caused by a series of back injuries? 2. Do you consider Mrs Grant's lumbar disc degeneration is caused wholly or substantially by the ageing process? Mr Cowley replied to those questions as follows: "I am not able to provide an answer to the two questions you pose with any certainty in Mrs Grant's case. In my view lumbar disc degeneration is a multi-factorial event. There may well be inherited biochemical factors which predispose to degeneration but in I:\AUTHORIT \BEATTIE\grant.doc addition, a single traumatic event or multiple episode of injury can set the scene for disc degeneration over a period of time. Having only first met Mrs Grant in August 1997, some years after her symptoms began, I cannot be certain whether the episodes of trauma described predate and hence predispose to lumbar disc degeneration or whether the recurrent episodes of back pain she experienced over a period of years was subsequent to disc degeneration which had already occurred. By the time I met Mrs grant she had end stage disc degeneration associated with mechanical lower back pain, as is sometimes the case. In other words I feel it is impossible for me to judge whether her lumbar disc degeneration is caused by a series of back events or whether the ageing(sic) process and disc degeneration predated her back trouble." As a consequence of Mr Cowley's report the respondent did by letter 23 June confirm its earlier decision to cancel entitlement contending now that as the onus was on the claimant, that onus had not been discharged and that the evidence was in favour of the provisions of section 10(2)(a) applying. Again rights of review were given with that decision and the appellant did so seek a review. For the purposes of that review hearing the appellant produced a letter from Dr B Chatterton, Radiologist, and Dr Ronald Cook, Osteopath. Dr Chatterton's report stated: "I have been asked to review Miss Grant's radiographs from 1980 (abdominal film showing a frontal view of the lumbar spine) and lumbar spine films of 22.4.97. In 1980 on the single frontal projection of the lumbar spine there appears to be a normal or near normal disc space between L4 and L5. In 1997 there has I:\AUTHORIT\BEATTIE\grant.doc been a significant change with quite marked loss of disc space at L4-5 with associated vertebral end plate sclerosis and there are also osteoarthritis changes in the facet joints at L4-5 and at L5-SI. Lumbar spine alignment is normal. The findings would indicate lumbar disc degeneration with secondary arthritis occurring between 1980 and 1997." Dr Cook's report dated 19 August 1998 stated: "Mrs Grant has consulted me on two occasions for help with a low back injury. On the first occasion, 16.8.91 she presented with an acute lumbosacral pain and accompanying lumbar paravertebral muscle spasm. There were no abnormal neurological signs present, straight leg raising was limited by the muscle spasm. Ms Grant said that the pain had occurred soon after she had lifted a patient. Prior to that she had been pain free. She received osteopathic treatment from me which consisted of soft tissue massage to the lumbar region, manual traction and manipulation. Two days later she reported she was pain free and able to work without discomfort. On 8.8.94 I again saw Ms Grant for an injury that had occurred on 5.8.94. There was paravertebral muscle spasm present in the lumbar region, lumbosacral tenderness and tenderness over the sacroiliac joints. There were no abnormal neurological signs present, tendon reflexes were present and straight leg raising tests, allowing for the muscle spasm were normal. Her osteopathic treatment consisted of soft tissue massage to the lumbar region manual traction and adjustments to the lumbar spine and sacroiliac joints. One week later Ms Grant was pain free and working normally. Comment. On both these occasions the injury was caused with lifting patients while at work. In each instance prior to the injury she had been pain free and able to work normally. The onset was sudden and the main symptoms were I: AUTHORIT\BEATTIE\grant.doc 6 those of acute muscle spasm which is consistent with a specific incident rather than say an ongoing low back problem. In each case the problem resolved rapidly, in contrast to the exacerbation of an existing and predisposing spinal problem which tends to settle gradually with time. X-rays of the lumbar spine were not taken because neither the symptom pattern nor the rapid recovery suggested any spinal abnormality or deterioration." In addition to those reports there was also the report from the appellant's GP, Dr Meikleham and he stated, inter alia: "I note that she has several episodes, whereby her back has "gone out" and this would suggest to me that she has some degree of instability in her lumbar and thoracic spines. This may be an inherent problem or it may be acquired. Nonetheless, the threshold for the effect of a "back going out" or perhaps more precisely, precipitating a facet joint lesion or in the extreme a lumbar disc protrusion, would very in different people and thereby the position adopted, the characteristics of the lift and the amount lifted would have variable impact on different persons. You quite correctly observe that nurses tend to have back backs and this is by virtue of the fact that they use the lower back as a vertex for lifting, combined with straight legs, particularly at the edge of a bed. This is compounded by rotational stress i.e. movement to the right or to the left. The lumbar spine is constructed in a manner that is capable of flexing, extending, rotating and flexing in a lateral direction. Where muscles or ligaments may be weak, either inherently or by acquisition, displacement of vertebrae often occurs, particularly at the facet joint area. In my opinion Mrs Grant has a low threshold for the occasioning of such episodes. I believe that she would have had no concept of this prior to starting her career in nursing. As time has progressed, not only has her liability to incur such disabling back problems increased, she has developed degenerative I:\AUTHORIT\BEATTIE\grant.doc 7 disorder to boot. This would have the effect of further stretching the ligaments and narrowing the spaces between vertebrae and, as with other joints suffering arthritic change, through instability, lead to increasing pain and disability. The second review hearing was taken before another Review Officer and in his decision of 20 September 1998 the Review Officer identified that the onus lay on the appellant to show on the balance of probabilities that the back injury sustained in March 1997 continues to be the cause of her current incapacity and disability. He noted that both Dr Meikleham and Mr Cowley were equivocal in their opinions as to whether or not there was a causal link and he considered that in the light of that evidence the onus of proof had not been discharged and he therefore confirmed the Corporation's decision to cancel entitlement. Ms Taylor, advocate for the appellant, submitted that he even though Mr Cowley was unable to provide the answer, nevertheless he confirmed that repeated stresses which occurred during the course of her employment over the years can initiate the onset of degenerative change and that as the appellant did have such history then it could be concluded that the trauma of injury was the cause. Mr Palmer, counsel for the respondent, submitted that the original diagnosis was lower back strain and he submitted that in Mr Cowley's first report of 12 September 1997 his opinion was lumbar disc degeneration and there was no suggestion of back strain being a cause of her condition. Mr Palmer further submitted that Dr Chatterton's report indicated that the degenerative process had been going on for much longer than from the period of the appellant's injury in March 1997 and therefore must be said to have been pre-existing. Counsel submitted that the medical evidence was such that the appellant could not discharge the onus of proof. The evidence did not allow for an irresistible inference I:\AUTHORIT\BEATTIE\grant.doc of a causal link as the Court had noted, could be sufficient in its decision in Herrick (190/98). DECISION This Court confirms the observation made by the Review Officer in his decision that the onus of proof is upon the appellant to establish that there is a causative link between the personal injury by accident for which she was granted cover and her ongoing conditions and symptoms in respect of which she seeks continuing entitlements. It must be noted that the personal injury in respect of which cover was granted was nerve root irritation caused by the lifting of a patient, that irritation in evidenceng itself in chronic low back pain. Some of the reports have noted the fact that in the appellant's occupation as a registered nurse there was a certain amount of heavy lifting and twisting and indeed the appellant has suffered two identifiable injuries as a result of lifting patients, firstly in 1991 and secondly in 1997. I note that her GP, Dr Meikleham, has identified that she has some degree of instability in her lumbar and thoracic spine. This is evidenced by the several episodes of which he was aware where her back has "gone out". He was of the view that the appellant had a low threshold for the occasioning of such episodes and he has noted that as time progressed not only has her liability to incur such problems increased but in addition, she has developed a degenerative disorder as well. When that evidence is considered together with that of Dr Cook who first treated her in August 1991 and subsequently, and who commented that the occasions of her injury was similar involving muscle spasm lumbosacral tenderness. In each case he advised that the problem resolved rapidly, in contrast to the exacerbation of an existing and predisposing spinal problem which tends to settle gradually with time. I:\AUTHORIT\BEATTIE\grant.doc 9 I take it from Dr Cook's opinion that the appellant has a susceptibility to a particular type of back strain and that these problems once treated soon resolved. If one considers that in the light of the radiological evidence that the appellant has suffered progressive degenerative change in the lumbar disc region and that that progression has been ongoing over a number of years, certainly pre-dating the 1997 injury, then I find that, in the absence of positive medical opinion that the appellant is still suffering from the trauma of her lifting injury, the weight of evidence and the overwhelming inference is that it is the degenerative condition which is now asserting itself and which is the current cause of her ongoing pain and incapacity. In these circumstances, I find that the Review Officer correctly identified the flavour of the medical opinion and I find that when one looks at the medical evidence as a whole it is not possible to find on balance that the appellant is still suffering from the effects of the nerve root irritation which occurred when she lifted a patient in March 1997. In those circumstances, I find that the appellant has not discharged the onus and indeed the respondent was correct to identify the changed state of affairs and to make the decision to cancel entitlements. For the foregoing reasons therefore, the respondent's decision to cancel entitlements is confirmed and this appeal is dismissed. DATED at WELLINGTON this gth day of April 1999 M J Beattie District Court Judge Grant.doc(gm) I:\AUTHORIT\BEATTIE\grant.doc