Coeur Gold NZ Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 73/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN COEUR GOLD NZ LIMITED of Waihi Appellant (Appeal No. DCA 253/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION & body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of April 1997 APPEARANCES C M Meechan for appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether T R Kohunui (the worker) suffered a work injury on 14 April 1995 The worker had been employed by the appellant which is a mining company since later 1993. On 14 April 1995 the worker, during the course of his employment bent to pick up a Marcy bucket which I was told is used for the gathering of samples. As I understand the position the worker did not actually lift the bucket but felt a twinge of pain in his back which apparently passed and he continued to complete his shift. The next day when he awoke he was in considerable discomfort and had difficulty moving. He consulted his doctor on 21 April 1995 after he continued to have pain in 2 the back. The claim form lodged with the respondent on 24 April 1995 notes the doctor's diagnosis as "acute lumbar injury". As a result of his continued pain the worker's wife had advised his foreman that he was not able to work and that he proposed to see his doctor. The worker advised the foreman that he was embarrassed by the situation because he realised he had not completed a report of the injury on the day it occurred The worker's general practitioner referred him to Mr B J Thorn an orthopaedic surgeon whose report of 17 May 1995 states: "Thank you for asking me to see this gentleman who hurt his back lifting at the goldmines on about 13.4.95. Tim for the first time developed back pain and soon after trouble down his left leg which is essentially numbness and weakness. This has improved very little over the subsequent months. As he is walking he has early wasting of the left calf muscle and is walking with a limp. Forward bending is limited and this produces pain down into his left buttock and thigh. He is unable to stand on his tip toes but can heel walk satisfactorily, although interestingly when he does this latter movement his left foot inverts quite badly suggesting he has pronounced weakness of his peroneal muscles. This is confirmed on the couch where he has marked weakness particularly of the left gastrocnemius and foot evertor muscles. He has much better strength on the right side. Neither ankle reflex is obtainable today. His straight leg raise on the left is positive at about 75 degrees but is normal on the right. Plain Xrays show that he has generalised narrowing of the L4-5 and L5-S1 discs. He has normal sphincter control. I would suspect that Tim probably has had a lumbo-sacral disc injury and I have referred him for urgent CT scanning. If the scan does come back positive and he persists with marked or worsening weakness of his leg muscles I think he would be best served by surgical decompression. We will get onto this as quickly as we can for him." When the worker had provided a statement to the respondent regarding the manner in which the accident had occurred and what followed thereafter the respondent referred that to Mr Thorn for his further comment which is provided in his report of 27 June 1995 as: " I have read Tim Kohunui's statement regarding the circumstances of his injury on 14.4.95 and I can confirm this concurs with what he told me when we first met on 17.5.95. Mr Kohunui stated that he had no problems with his back that he was aware of prior to this injury but that afterwards he developed back pain and sciatica. Xrays and CT scan have confirmed the presence of a partly calcified disc prolapse and some degenerative changes in his low back. The changes of degeneration have been long standing in his back but it is not possible to determine the length of time the disc prolapse was present. However it is well recognised that a lot of people 3 can have a degenerative changes including bulging discs without having any symptoms of back pain or sciatica whatsoever. There is a clear association between the onset of symptoms and the lifting incident as he has described so it is my opinion that his description of the accident is consistent with his presenting signs and symptoms. I can confirm also that he underwent surgery on 16.6.95 and the outcome todate has been very satisfactory.' On 3 July 1995 the respondent accepted the claim as a work injury. The appellant applied for a review of that decision. The worker and the appellant were represented at the review hearing and the review officer found that the worker had suffered an incident at work which constituted a work injury in terms of s.6 of the Act. It is against that decision which the appellant now appeals. The appeal initially came before Judge Lovell-Smith when evidence was given by Professor W Glass who was previously a Professor of occupational medicine at Otago University and now acts as a consultant in that field. Professor Glass had provided a brief of evidence in numbered form which up until his assessment of the worker's condition detailed the history of events. His assessment then followed and was: "Mr Kohunui's work history is such that degenerative changes in his lower back are likely to have been caused by the nature of the work which he did for Reid Construction, Downers and Fletchers. Vibration from pneumatic drills together with constant lifting, bending and twisting associated with concrete and construction work leads to conforming microtrauma to the structure of the spine with resultant early degenerative changes. Mr Kohunui's work at Coeur Gold came at the end of some 17 years of such heavy manual labour. It is my belief that the damage to his back had been done by the time he joined Coeur Gold and that had an x-ray been carried out in his pre- employment medical on 1 June 1994, the degenerative changes would have been noted. I think it highly unlikely that the calcified disc which was picked up in the recent x-ray and CT Scan occurred between 1 June 1994 and 14 April 1995. Similarly, I think it is unlikely that the disc bulged during this period and that the calcification and bulge observed in the CT Scan occurred at an earlier time. The nature of the degeneration shown in the x-ray and CT is suggestive of long term damage, rather than damage that had occurred over a 10 month period. It is well recognised that people can have bulging discs without having any symptoms whatsoever. It is also recognised that the onset of pain, which is attributable to bulging disc in only 40% of cases, is associated with a precipitating event. A precipitating event, which may best be described as the event which causes an individual to realise he has a bulged disc can be something as simple as opening a drawer. It is important to emphasise, however, that the mere opening of 4 the drawer dies not cause the disc to bulge, but merely brings the condition to the attention of the person concerned as the result of the onset of pain. There is another aspect of Mr Kohunui's case which I believe is important and which indicates to me that bending to lift the bucket did not cause the prolapse of the disc. Mr Kohunui said that the pain which he felt at work only lasted about 10 seconds. He says that the pain then went away and he then completed his shift (a further hours work) before going home to bed. Mr Kohunui says it was only when he woke up from his sleep that the pain reoccurred and he found he could not move. The usual pattern in terms of the onset of pain with an individual who has suffered a bulged disc is that once the pain manifests itself, it does not 'shift' until the condition has been treated. One would not normally expect the individual to experience a short burst of 10 second pain and for the pain to then go away for many hours. In my opinion, Mr Kohunui's back problems are longstanding, occupational related and result from a gradual process occurring to Mr Kohunui's lower back with degenerative changes and a partly calcified L4/15 disc which had prolapsed to the left, together with wasting of his left calf muscle. The wasting of the calf muscle indicating sciatic nerve involvement could not have occurred in the time between the incident on 14 April and his visit to Mr Thorn on 17 May, a period of just 4-5 weeks. All of these factors point to the prolapse of the disc having occurred well before 14 April 1995. It is inconceivable that the degenerative changes and wasting occurred as a result of the events of 14 April - namely the bending over to pick up the empty Marcey (sic) scale bucket. I have concluded that it is highly unlikely that Mr Kohunui's condition is attributable to this event." In answer to Judge Lovell-Smith Professor Glass said: " THE COURT: So what you are saying Dr Glass is that the pain and the injury are two quite separate matters, in the sense that he lifted the bucket and experienced pain, but that was because he suffered and the back had degenerated previously? ... Yes, I think to that it recognised that people can have a prolapsed disc with no pain, with no symptoms, and that people can have a prolapsed disc with symptoms, and further more that the event that needs to prolapse in which the pain occurs coincidentally is generally quite a severe activity in lifting a heavy weight, or twisting while carrying a heavy weight. So that, to argue that the prolapse occurred at a point of time, at work or away from work, would generally presuppose that the action that caused the prolapse was a significant action. But as I said - I think I said - as I say in the evidence, you can get disc related pain, in other words, you can have a prolapsed disc and the pain can occur doing something quite minor, like opening a drawer, or in this case bending over, but that does not imply that at that point in time the disc prolapsed. And I think this is the distinction that I see in this case." 5 Judge Lovell-Smith then adjourned the proceedings to enable the respondent to consider Professor Glass's evidence and if necessary to seek additional medical evidence. The Court has now received a report from Dr D W Dryson, a specialist in occupational medicine, whose report of 9 July 1996 states: "I am in receipt of your letter of 28 June 1996 requesting an opinion on the appeal against Mr Kohunui's ACC claim by Coeur Gold. It seems quite clear reading the reports of Mr B J Thorn, orthopaedic surgeon, that Mr Kohunui had a longstanding disc prolapse at the L5/S1 level. The evidence for the longstanding nature of this prolapse lies in the fact that it was partially calcified. This does not occur over a few weeks or even months. There is also associated degeneration of the lumbar spine. I note that Mr Kohunui is only 36, an age when such degenerative changes would not be expected and it is therefore entirely likely that his spine has been subjected to more than normal wear and tear. This is of course likely to have been due to lifting over a period of many years in the course of his occupation. It is also true that such degeneration and bulge of a disc can produce no symptoms often for some period until some activity brings it to the persons notice. This may be a minor incident such as stooping to pick up something or changing posture while at work such as for example leaning forward for lengthy periods. So far therefore I agree with Professor Glass. The actual prolapse of the disc was not caused by the incident with the marcy bucket. Plainly the onset of pain was triggered by something and in this case it appeared to be the stooping to lift the marcy bucket. This was plainly not a further prolapse since as Professor Glass points out the pain vanished for a period. It would represent therefore some added irritation of the nerve roots which following additional swelling overnight produced longer lasting compression of the nerves. This would have to be seen as an acute injury (however minor) on top of a longstanding injury. The effects of the acute injury would be brief, no more than a week or so, and any ongoing symptoms would be due to the long term chronic injury. This chronic injury should be seen as personal injury by accident, since the changes to the spine and the disc plainly took place over a period of time. If that were the case then previous employment would also have to bear some responsibility. Although Professor Glass talks about June 1994 being the onset of Mr Kahunui's employment at Coeur Gold, page three of the transcript of the hearing suggests that in face he was working as a temporary worker for Coeur Gold since October 1993. There was therefore some 18 months employment at Coeur Gold before the incident of April 1995 which needs to be taken into account. It is true that this is relatively small compared with the 15 years spent with previous employers." Ms Meechan submitted: 6 1. That in order to ascertain whether the prolapsed disc was a work injury as defined by s.6 of the Act it is necessary to consider the definition of the words 'arising out of employment" contained in s.3. 2. That it is not sufficient to adopt the "but for" test which anticipates that the definition is satisfied simply by the fact that the worker was at work when the injury occurred. She submitted that the section requires its two phrases to be considered conjunctively and that they mean different things. 3. That there must be some causal nexus between the act done by the worker while carrying out his duties as an employee and the injury suffered. That in this case the causal nexus must be established between the act of bending over to pick up the bucket and the prolapsed disc. 4. That the situation of this worker is different from the situation of the appellant in Van der Torre v ARCIC (98/95) where that appellant began experiencing back problems after she twisted to pick up a telephone. In that case the Court was able to make a finding that there was some degeneration of the L5-S1 disc and the cause of the problem was the twist and fall while picking up the telephone. That the medical evidence in this case is quite different in that the specialists agree that the incident on 14 April was not caused by the incident with the prolapsed disc. 5 . That in Tui Milk Products Ltd v ARCIC (18/95) the issue was whether the 1992 injury had caused the employee's back problems or whether they were attributable to an incident which had occurred in 1975. In that case the Court had the benefit of two medical assessors who concluded that the November 1992 incident was an exacerbation of the 1975 injury. However, the Court was able to conclude on the balance of the evidence that the 1992 injury was not caused by the 1975 injury and was therefore a self-contained work injury for the purposes of the Act. That case is distinguishable from the present case because the Court is not required to decide whether a "new" injury really exists but whether or not the worker's prolapsed disc and the degenerative condition of his spine was caused by the 14 April 1995 incident. That on any analysis of the medical evidence the answer to that question must be "no". 6. That in this case the worker did not suffer an external force or resistance to his body and only moved his body. That task did not constitute a case where the worker has resisted gravitational force and it would be inaccurate to say that any kind of external force or resistance had been applied. 7. That the only "force" present on 14 April was gravity which is always present and was therefore not "applied" in any particular place or at any particular time. 8. The worker's case can be distinguished from those which involved a fall or the complainant hitting a surface when the impact is exacerbated by gravity. 7 9. That the worker was required to lift a light bucket and in the course of bending to pick up the bucket suffered a brief twinge of pain. That that injury did not result from an external force or resistance being the force of gravity bearing down on the bucket but arose from internal forces in the human body which affect the back. Mr Cleary submitted: 1. That in regard to the requirement of s.3 I should have regard to the decision of Auckland City Council v ARCIC (46/95) in which the Court held that if gravity caused an injury then that constituted an external force or resistance. In that case the claimant had slipped and sustained a lower back strain which Judge Imrie noted "it is a logical inference from the evidence that falling on his left side involved the application of a force or a external to the human body". He considered that the external force was the force of gravity which had forced that appellant's body to the ground which caused the back strain. 2. That it is necessary to satisfy both limbs of the definition of work injury. 3. That on the basis of the decision in Billings v ARCIC (86/96) it does not matter if an identical injury could have occurred elsewhere and the test is whether the injury would not have occurred elsewhere. 4. That the Court has accepted in Van der Torre and Tui Milk Products that the egg-shell skull principle can apply in these circumstances. 5 . That the Court has held in a number of cases that non-compliance with an employer's reporting procedures cannot be determinative of whether or not there has been a work injury. 6. That there is no doubt that the worker did suffer an accident when he bent down on 14 April 1995 to pick up a bucket. That that incident was similar to the position of the worker in Auckland City Council v ARCIC in that gravity constituted the external force or resistance. 7 . That while Professor Glass does not support the view that the worker suffered an injury but merely pain, Mr Thorn and Dr Dryson accept that he suffered a back injury which was consistent with the incident described. 8. That while the worker had a pre-existing condition in his lower back of which he was then unaware both Mr Thorn and Dr Dryson consider that the stooping incident involved some trauma. While the medical evidence clearly accepts that the incident on 14 April 1995 brought to light the pre-existing prolapsed disc, it certainly was not the cause of the prolapse. Dr Dryson has said that the prolapse of the disc was not caused by the incident in stooping to lift the bucket and that the worker only suffered a minor immediate 8 onset of pain. It was not until the next day that this may have been seen "as an acute injury (however minor) on top of a longstanding injury". Mr Thorn is quite clear that there was longstanding evidence of degeneration and he could not give an estimate of how long the disc prolapse had been present. Both counsel have submitted that it is necessary first to ascertain whether the worker has suffered an accident in terms of s.3 of the Act. While Mr Cleary has submitted that the incident in which this worker was involved is similar to the position of the worker in Auckland City Council v ARCIC, I do not accept that submission. I do not consider that in this case the worker suffered any external resistance to his body and that what occurred was as submitted by Ms Meechan, that the worker only moved his body and that it was some internal force within the body which affected his back. It may well have been that the pain was as a result of the already prolapsed disc which had certainly been in existence for some time. However, in terms of the definition of "accident" I do not consider that there was sufficient resistance external to the worker's body which could be said to have resulted in the personal injury. It must therefore follow that even though the incident occurred at work I do not consider that the worker has suffered a personal injury which constitutes a work injury and the appeal must therefore be allowed. As counsel have been involved on two occasions in the hearing of this appeal, there will be costs of $1,500. If it has not already done so the respondent is to pay the cost of Professor Glass's report. DATED at WELLINGTON this 29th day of April 1997 bevunddubai A W Middleton District Court Judge de25395.doc(rd)