Kidd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 2 69 /97 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 COLIN KIDD DCA 57/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at CHRISTCHURCH on the 13th day of November 1997 APPEARANCES: Mr A Cadenhead for appellant Miss J A Goodall for respondent DECISION OF JUDGE M J BEATTIE The issue to be determined in this appeal is whether the Corporation's decision of 5th February 1996 to cease payment of weekly compensation to the appellant was correct. The determination of that issue involves the determination of the question of whether there is a sufficient causal connection between the injury 2 sustained by the appellant on the 12th of December 1994 and the appellant's ongoing symptoms as at the date of the decision to cancel. Background Facts On the 19th of January 1994 the appellant suffered personal injury by accident when he slipped and wrenched his back whilst at work as a watersider in Tauranga. As a result of that accident he was certified unfit for his work as a watersider and began receiving weekly compensation. The appellant was referred by his GP Dr Aiken to Mr Keddell an orthopaedic surgeon as a consequence of the appellant experiencing increasing pain across the lower part of his lumbar spine. Mr Keddell explained that the pain was probably coming from the posterior elements of his lumbar spine directly associated with the twist of his back. He indicated that there was nothing surgical to be done and recommended a course of physio and home exercise. It is to be noted that both Dr Aiken and Mr Keddell commented on the fact that there was no pre-existing history or conditions relating to the appellant's back. The appellant moved to Christchurch in January 1995 and consulted a doctor Cartwright as his GP. In response to a request from the Corporation Dr Cartwright advised that the appellant was still suffering from back pain and indicated that before any opinion could be given as to his future he considered that there should be an orthopaedic review. In November 1995 the Corporation arranged for the appellant to be examined by Mr Jones, an orthopaedic surgeon in Christchurch. Mr Jones issued two reports the first dated 29 November 1995 and the second dated 23rd January 1996, the latter being issued after he had seen the results of an MRI scan. It was the opinion of Mr Jones: 3 "This man has evidence of structural changes in his lower lumbar spine which are unrelated to injury. The twisting or torsional injury sustained on the 19th of January 1994 would have aggravated a structural problem and created a situation of low back pain with referred pain into his leg but his ongoing symptoms I believe are related to the pre-existing structural change and arthritic change which has now developed in the left lumbo-sacral facet joint, unrelated to injury. For completeness however I think it would be appropriate that this man have an MRI scan of his lower lumbar spine to identify whether there was any structural change which could be related to accident. If his scan did not show evidence of an injury related problem then I would not consider he was the ongoing responsibility of the ACC. The most striking feature of the scan were the degenerative changes in the facet joints in the lower two levels. I do not believe that there is any evidence of a previous structural injury and would regard his ongoing situation as the natural history of the degenerative changes within his lower lumbar spine. While I am sympathetic to his situation I do not believe he is the ongoing responsibility of the ACC." It was as a consequence of those reports that the Corporation wrote to the appellant advising him that weekly compensation would cease. The appellant sought review of that decision and for the purposes of such review obtained medical reports from Professor Hugh C Burry and Mr J Talbot orthopaedic surgeon. In his report for that review hearing Professor Burry stated inter alia as follows: 4 "Mr Kidd has suffered persistent back pain since his accident in which he severely jarred is (sic) lumbar spine. He is quite definite that he had not suffered from back problems prior to that event. It is likely that his persisting pain is the result of some inflammatory process affecting the facet joints brought on by the accident and probably aggravated by poor postural pattern. The presence of Waddell non organic signs suggests that the position is further aggravated by onset of a chronic pain syndrome. I would expect his condition to improve substantially with appropriate physical reconditioning programmes and exercises and instruction designed to improve his posture. From the point of view of accident compensation, it is of importance that, although signs of wear were present in his facet joints at the time of his accident, he had not suffered any incapacitating back pain up to that point, so that it appears to me that his current situation has resulted from the effects of an accident which may have been more severe and more long lasting due to his previous impaired but asymptomatic condition. But for his accident he may well have remained symptom free as xray changes such as have been demonstrated in his case are frequently found in totally asymptomatic persons. Mr Kidd has worked for some 24 years on the docks and I suspect that his enforced inactivity has had a dispiriting effect on him. It is very possible that energetic rehabilitation, both physical and vocational, would produce a marked improvement in his pain levels and general functional state." Mr Talbot examined the appellant and gave his opinion as follows: 'OPINION: This man gives a clear history of having sustained a low back injury with resultant left leg pain while at work in Tauranga on the wharves on 19.1.94. He states that he did not have any back problems whatsoever prior to this accident and was not aware that there was anything wrong with his back until then. He also had a good work record, having spent 24 of his 45 years working on the wharves without any previous back injuries. He now finds his earnings related compensation has been ceased by the ACC on the strength of a previous medical report stating that his problem is due to degenerative changes within his lower lumbar spine. I consider that, if you xrayed a group of 45 year old watersiders who had spent 24 years in that job, the majority would have similar looking back xrays to Mr Kidds, but most of them would not be aware that there was anything abnormal with their backs. One could say that these degenerative changes were due to normal wear and tear, but one could equally attribute them to the heavy occupation. I believe very sincerely that Mr Kidd's asymptomatic back condition was rendered symptomatic by the jarring wrenching injury that he describes. I also believe that, had he not had that injury, he might well still be working on the wharves at Tauranga without any complaints of back troubles. He mentions that he had a very strict medical examination and xrays were taken of his back in the 1970s prior to starting work on the wharves at Tauranga. These xrays were taken at Norfolk Hospital in Tauranga. Presumably, if one was able to get hold of the xray report from the 1970s, assuming it showed no abnormality, then one could have a strong case for asserting that his current degenerative changes are a result of his occupation over the previous 24 years. I feel that this man has been treated rather harshly by the ACC on the basis of Mr Jones' report. There is ample precedent for accepting this man as a case of unmasking of pre existing degenerative changes by the accident. There is also precedent for accepting his radiological changes as being caused by his occupation. I feel strongly that the ACC should continue to regard him as their responsibility, and although I have considerable respect for Mr Jones as a surgeon, I feel that his statement which has caused this man's earnings related compensation to be stopped, is excessively dogmatic and very controversial." In his decision the Review Officer stated: "Although the specialists disagree on the role of the accident in the condition, there is, however, essentially agreement that Mr Kidd's primary problem is caused by degenerative symptoms, although I note that Professor Burry also proposes that Mr Kidd has in addition a pain syndrome. In my view it is reasonable to accept 6 that Professor Burry and Mr Talbot are correct in concluding that Mr Kidd's condition is one of previously asymptomatic degenerative changes made symptomatic by the accident, given Mr Kidd's history of no back pain prior to the accident and back pain ever since. However, given that this is the case, in my view Mr Kidd's condition must be excluded from cover. Section 10(2) (a) excludes from cover personal injury caused wholly or substantially by the ageing process, and it is my view that it is clear from all three medical reports that Mr Kidd's condition arises substantially from the ageing process, i.e. degenerative change. Whether or not he also has a chronic pain syndrome, his condition must nevertheless still be substantially caused by his degenerative changes. While I agree that the accident made those degenerative changes symptomatic, nevertheless they are the substantial cause of the condition which must therefore be excluded from cover in terms of Section 10(2)(a)." For the purposes of the appeal to this Court, two further reports were obtained from Professor Burry and Mr Talbot. In his report of 10th June 1997 Professor Burry stated: "I strongly disagree with the review officer's statement on page 16 of the decision which reads Whether or not he also has a chronic pain syndrome, his condition must nevertheless still be substantially caused by his degenerative changes.' I also disagree with the previous sentence in which he states that '... it is clear from all three medical reports that Mr Kidd's condition arises substantially from the ageing process, i.e. degenerative change.' In my comment on page 9 I did concede that '... the effects of an accident which may have been more severe and more long lasting due to his previous impaired but asymptomatic condition.' This statement is followed by my pointing out that he may well have remained symptom free but for his accident. It is essential that the review officer understands the great frequency with which degenerative change is present but entirely asymptomatic. It is also important that he should understand that chronic low back pain is quite commonly seen after accidental injury, but without radiographic studies revealing 7 any pathological change in the bone structure of the spine or pelvis. In such cases, it can only be assumed that a disorder of soft tissue, most probably of an inflammatory nature has been initiated, or that some form of psychosomatic dysfunction, such as a chronic pain syndrome, has been precipitated. In my opinion it is essential in consideration of the corporation's obligations to understand that but for the accident there is a very good chance that Mr Kidd would have remained asymptomatic indefinitely." In his further report of 10th July 1997 Mr Talbot supported the statements made by Professor Burry in his two reports and in particular he concurred with Professor Burry's opinion that he did not believe that the appellant's ongoing difficulties were substantially due to degenerative change. Appellant's Submissions Mr Cadenhead, counsel for the appellant, submits that the same consideration of causation arises when one is either considering whether a person's incapacity is related to the original personal injury by accident under s.37(a) or under s.73. Counsel submits that it is not necessary to establish that the personal injury for which the claimant has cover is the only cause of incapacity. Counsel submits that the test of incapacity is indivisible and relies on the decisions of Ngaruhe (83/95) and Campbell (113/95). Counsel submits that the relationship between s. 10(2)(a) and the test of causation under s.37 must be considered with emphasis on the word "substantial" which must be read as being a proportion of great substance. He submits that the ageing process would have to be established as being as high as say 80% for it to reach the threshold that would be appropriate for the word "substantial" in that particular section. 8 It is counsel's submission that the weight of evidence establishes that the appellant's ongoing difficulties are related to the accident. He submits that the method that Mr Jones used to arrive at his diagnosis is flawed. He states that orthopaedic surgeons use imaging techniques as their principal diagnostic tools. In this case Mr Jones could see degenerative changes on the xray and scan and concluded that that must be what was causing the difficulties. He referred to the opinion of Professor Burry who stated that reliance on imaging techniques to reach a diagnosis was unhelpful. Counsel referred to two medical texts which support that submission. One text being Orthopaedic Medicine 2nd Edition by J H and P J Cyrax (Butterworths 1996): "Diagnostic Problems: The X-ray A characteristic shared by the moving soft tissues is their radiotranslucency. The tissues in question are the joint capsules, ligaments, fasciae, muscles, tendons, bursae and discs; at the spine the dura mater and dural sheaths to the emergent nerve roots are included. Any of these structures can cause pain. None of them, inflamed or otherwise, is visible on the radiograph. If the pain does arise from a soft tissue, it follows that the x-ray can show only one of two things: First, it may reveal the bones are normal, thereby playing a negative role except that it lays the patient open to a misplaced diagnosis of neurosis. In the alternative, the x-ray may disclose some symptomless abnormality which is then incorrectly regarded as the source of pain. In this case the radiograph is positively misleading, a problem not necessarily avoided by recourse to more modern imaging techniques. (see page 18). For example, many patients with a stiff neck display cervical osteoarthrosis or cervical spondylosis. But enquiry reveals that the patient's pain started only last month, whereas the osteophytes have been in existence for a decade or more. 9 Likewise the osteophytes remain unchanged after the pain vanishes a couple of months later." Counsel submits that whilst Mr Jones' opinion may be correct from an orthopaedic point of view, it may not be correct from a musculo-skeletal or rheumatological viewpoint. He states that the back is essentially constructed of soft tissue, bone and nerve and not simply made up of one anatomical feature. Hence it is possible for two specialists from different disciplines to arrive at different conclusions but given their differing disciplines they may each be correct. In this particular instance he submits that Mr Jones may well be correct in finding that there is degenerative change but he is incorrect in arriving at the conclusion that the pain and ongoing disability arises from that cause. Professor Burry has provided a reasoned and supported explanation as to the difficulties that the 1994 accident yielded and he excluded those difficulties arising from the area considered by Mr Jones. Counsel further submits in the alternative that if Mr Jones' report is accepted that the appellant's injury of 1994 rendered an asymptomatic condition symptomatic then the present situation is another example of the "egg-shell skull" principle. He notes that it was the opinion of Professor Burry and Mr Talbot that in all probability the appellant would have remained asymptomatic but for the accident. Respondent's Submissions Miss Goodall for the respondent begins by stating that the onus of proof is on the appellant to establish on the balance of probabilities that there is a causal link between his present symptoms and the injury sustained in his accident of 1994. 10 Counsel submits that the central issue is whether there is any causal link between the accident and the symptoms presently suffered. She submits that in the absence of such a link the "egg-shell skull" principle has no application. Counsel submits that on the evidence it is the appellant's underlying condition rather than any injury sustained in the accident which is the cause of the present symptom. She submits that on the medical evidence adduced that onus of establishing a causal link has not been discharged. Decision There is no dispute that the appellant is suffering from incapacity as that word is understood for the purposes of the Act. If the appellant's present injury is not causally connected to the injury sustained by him in the fall in January 1994 then he has no cover under the Act. It is the respondent's contention that the present injury is caused wholly or substantially by the ageing process and is thereby excluded under s.10(2)(a). The question is a medical one. The essence of Mr Jones' two reports are that the twisting injury sustained would have aggravated a structural problem and created a situation of low back pain which he believed was related to the pre-existing structural change. He further stated that he could see no evidence of previous structural injury and that the ongoing situation is the natural history of the degenerative changes within the appellant's lower lumbar spine. The evidence is clear that at the time of his accident the appellant did have a pre- existing degenerative condition and that this was asymptomatic. It is to be remembered that the injury complained of was a twisting injury, that is one that 11 affected the tissue or muscles rather than bone. Professor Burry is pre-eminent in his field and his curriculum vitae which was submitted with his reports is impressive to say the least. The area of contention in this case is his area of expertise. He states that it is important to understand that chronic low back pain is quite commonly seen after accidental injury but without radiographic studies revealing any pathological change in the bone structure of the spine or pelvis. In such cases it can only be assumed that a disorder of soft tissue, most probably of an inflammatory nature, has been initiated, or that some form of psychosomatic dysfunction such as a chronic pain syndrome has been precipitated. It is this which Professor Burry says is the position with the appellant. It is to be noted, and it was certainly a determining feature for Professor Burry, that the appellant was symptom free prior to the accident yet he had a supposedly pre-existing degenerative condition. It is his opinion and also that of Mr Talbot that the likelihood is that without the accident the appellant would have continued to remain symptom free for many years. It cannot be disputed that the onset of the appellant's back pain stemed from the twisting which was the accident. That pain has continued unrelenting from that time on. In the light of Professor Burry's opinion about disorders of the soft tissue as quoted above, I find it too simplistic to accept Mr Jones' opinion without a great deal more supporting evidence from his diagnosis. As was submitted by Mr Cadenhead, he is simply reporting what the xrays and MRI scan told him and has concluded that the back pain must be as a consequence of what he saw. Having regard to the sound opinion which has been submitted both in the form of Professor Burry's report and also the medical texts submitted by Mr Cadenhead, I find that when one is dealing with a soft tissue injury one cannot simply rely on xrays. 12 In the final analysis I prefer the opinion of Professor Burry and find on balance that the appellant is still suffering from the effects of the back injury sustained in the accident of 19 January 1994. If it be that the degenerative condition of the appellant is a factor, and I find that the more probable position is that the appellant's condition has been exacerbated by the injury, then this is indeed a situation where the "egg-shell skull" principle does apply. For the foregoing reasons therefore I rule in favour of the appellant and the decision of the Review Officer is hereby revoked. I allow the appellant the sum of $800 costs plus disbursements as fixed by the Registrar. DATED at WELLINGTON this 18 day of December 1997 M J Beattie District Court Judge Kidd.doc KD