Wood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 10 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CONWAY FRANCIS WOOD of Dunedin Appellant (Appeal No. DCA 263/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 3rd day of November 1999 APPEARANCES/COUNSEL P J Sara for appellant M B Mccarthy for the respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON This appeal arises out of the respondent's decision letter of 31 August 1998 in which the appellant was notified that "the cause of your ongoing discomfort is not due to personal injury by accident, but rather due to the degenerative disease". As a result of that finding, the appellant was notified that pursuant to section 73(1) his current entitlements would cease from 27 September 1998 as his "ongoing incapacity is not as a direct result of your personal injury by accident on 27 December 1996, but rather natural process." 2 The appellant, who was a Storeman by occupation, suffered an injury to his back on 27 December 1997 when running up some steps and bending over. He was then diagnosed as having a lumbar spine strain and certified as being unfit for work for a period of seven days. The respondent had previously accepted that the appellant had cover for that problem arising out of a claim for a lumbar injury suffered on 26 November 1996 for which he had received various entitlements from the respondent. When the respondent received the claim in respect of the November 1996 injury, it referred the appellant to Mr B F Hodgson, an Orthopaedic Surgeon, for his assessment and opinion, which was: "Mr Wood has signs on his xrays of degeneration of the L3\4 disc while the rest of the lumbar spine looks satisfactory. Currently I believe he has sustained an exacerbation of problems at the L3\4 disc with local pain experienced here and the discomfort that he describes consistent with this problem. I believe he needs further investigation with an MRI scan to exclude any disc prolapse or nerve root compression and to evaluate the rest of the lumbar spine. I believe he will continue to improve as regards his back pain but it will be in the order of four to six months before this bout of back discomfort settles sufficiently for him to return to work. I believe he should continue to use his brace, continue to walk and exercise on a regulation basis within one month will be ready for lighter duties avoiding heavy lifting and frequent bending." An MRI scan, completed on 21 May 1997 by Mr M Chin, noted: "His current diagnosis is that of mechanical back pain secondary to degenerative disc changes, most marked at the L2/3 level. The prognosis of this is that the acute episode should settle but he may be more prone to further episodes of back pain in the future." The respondent then referred the appellant to Mr M R Fosbender, an Orthopaedic Surgeon, who provided a report on 15 October 1997. His diagnosis was: "This man has a soft tissue injury to the lumbar spine superimposed upon obvious degenerative changes within a single disc level L2/3 as demonstrated both on plain x-rays, bone scan and MRI Scan. It is possible that there are other sources of pain within the lumbar spine which are not identifiable at this stage. This injury has given him ongoing stiffness and pain and a measure of instability. This basically causes pain and reactive spasm when stresses such as torsion stresses, shear stress and jarring forced are placed upon it." Mr Fosbender accepted that the problem would settle in approximately three months. The appellant was then referred to Dr D W T Ching, a Rheumatologist, who provided a report on 9 July 1998. His opinion was: "It is difficult to give an exact length of incapacity as a result of that incident in November 1996, but that incident, including the lifting incident a week or so later, would normally only cause low back pain for a few weeks or a few months at the most. It is difficult to know to what extent the osteophytes, and subchondral sclerosis on x-rays, and early degeneration of the discs on MRI scan a year ago, have in the aetiology of his low back pain. these degenerative changes would have developed over a period of years, and he did not have any significant symptoms until November 1996. At the end of the day, he has typical mechanical low back pain, like a lot of patients have, and the cause of chronic low back pain in such patients is poorly understood. Different doctors or other health professionals would give different opinions as to the cause of his low back pain. I really think the honest answer is simply that we do not know why he has such ongoing chronic low back pain." The respondent then referred the file to Professor D Gorman for his opinion which was: "Thank you for your letter of 04 September 1998 and the enclosed reports. Overall, I am happy to endorse the commentary provided to you by Dr. Ching. The central issue here is whether or not the various "accidents" have had any significant bearing on Mr. Wood's current disability. Overall, it would appear that he has moderate degenerative disease that is symptomatic and the various "accidents" have been sufficiently trivial that they could not be argued to be significant contributors to his current status. I understand and agree with Dr. Ching's reluctance to make a didactic statement in this regard, and would agree with him that these commentaries are based on probabilities rather than certainties. Nevertheless, it is highly unlikely that the accidents, as described, have made any real difference to the progression of his degenerative spinal condition. I also agree with Mr. Ching in that he describes Mr. Wood as having a chronic pain syndrome. This does not satisfy the research classification criteria for fibromyalgia. In addition, given the nature of onset of his pain syndrome, it is not reasonable to argue that it is post-traumatic." When it considered that medical evidence, the respondent then notified the appellant on 31 August 1998 that it considered that his ongoing discomfort was then not due to personal injury by accident but to degenerative disc disease and that pursuant to section 73(1) further entitlements would cease. The appellant applied for a review of that decision. The Review Officer concluded that the appellant's condition was similar to that of the appellant in Burke (198/98) that "the effects of the trauma have long since dissipated and what is left is the ongoing effects of the symptomatic degeneration quite marked 4 at L2/3 and minor at L3/4 L4/5." It is against that decision which the appellant now appeals. The appellant was given leave to adduce a report from Professor H C Burry, dated 29 June 1999. In that report Professor Burry stated: "It is well established that Mr Wood suffered a back injury, on 27/11/96, which occurred at work and was the result of manual handling involving moving a heavy crate in an awkward position. Xrays at the time revealed that he had a narrow intervertebral disc space with evidence of sclerosis in the adjacent vertebrae indicating that this disc abnormality was of long standing. A nexus was assumed between the presence of this radiological feature and Mr Wood's back pain. This assumption cannot be justified. The intervertebral disc lesion must have antedated the onset of pain by a considerable period of time but prior to 1996 he had only two short episodes of back pain. Furthermore, almost 50% of persons in Mr Wood's age group who do not have any back pain whatsoever have been shown to have radiological abnormalities in their intervertebral discs. This is because the intervertebral discs undergo a continuous process of evolution throughout life which changes not only the physical characteristics of the intervertebral disc but also the radiological appearances of the spine. Various distinguished authorities on back pain have pointed to the lack of correlation between the presence or absence of pain and radiological abnormalities (refs 1,2,3). As Dr Ching has remarked, it is not possible to be certain what happened to Mr Wood's back at the time of onset of his pain at the end of 1996. It is very likely that there was rupture of the soft tissues, either constituting the spine or supporting it, i.e. the ligaments and muscles of the trunk. It seems that his rehabilitation was proceeding reasonably well at first, albeit slowly, but there can be little doubt that deterioration in relationships with ACC staff and his employers together with doubt concerning his diagnosis and his prognosis and whether surgical intervention would cure him all produced stresses which have militated against return to normal function. Mr Wood had enjoyed good health prior to December 1996 and had only twice in his work life had to be absent from work because of back pain. since the incident on 27/12/96, he has had persistent back pain, has been warned against bending or lifting and is unable to find employment that he feels that he would be able to perform satisfactorily. There is no evidence that he has ever been restored to normal health since his accident and I cannot see that there could be any argument against the obvious conclusion that his current incapacity is directly related to his accident. As stated above, the presence of "degenerative changes" in the xrays of the spine is irrelevant there being no clinical evidence to connect those abnormalities with his current functional status. 5 It is essential that any future rehabilitation plan should take into account not only improving his functional status but also ensuring that as his work capacity improves a job opportunity is available for him as it is well documented that physical conditioning that does not lead to return to work rarely provides any lasting benefits." The respondent was given leave to adduce in evidence a report from Mr D J Jones, an Orthopaedic Surgeon, which is dated 14 September 1999. His conclusion was: 'Given the clinical findings made by the practitioners who have previously commented on Mr Woods claim it is my opinion that Mr Wood's condition as at the 31 August 1998 would have been wholly or substantially caused by the underlying radiological changes identified by MRI scan compounded by the development of a chronic pain syndrome." Mr Sara provided a very concise submission in which he set out the interrelation between sections 8, 10 and 73(1) of the Act. His principal submission is that there has been a certain amount of confusion in the respondent's office and, in some cases, in decisions of this Court between the question of "cover" and "incapacity". As I was impressed with Mr Sara's submission, I propose to uphold it. Mr Mccarthy submitted that the approach adopted by the respondent was correct in that there has been no misinterpretation of section 10. He submitted that the Court has on a number of occasions accepted that section 10 can be invoked in the cessation of a claimant's entitlements under the Act. He submitted that on the basis of the medical evidence it is clearly established that the effects of this appellant's injury were transitory and expected to resolve and the weight of the medical opinion is that the degenerative condition, which was rendered symptomatic by a series of relatively minor accidents is now the underlying feature of the appellant's present condition. As I have said, I propose to adopt Mr Sara's submission because it is a clear analysis of the interrelation of sections 8, 10 and 73(1) of the Act. Section 10 deals with the exclusion from cover while section 37(A) deals with the question of determination of incapacity. Section 10(1) provides "for the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is..." (emphasis mine). Section 4(1) defines personal injury and does not need to be repeated here. Section 10 is not concerned with "incapacity" but is only concerned with "causation". It is concerned with personal injury caused by accident except to the extent that the symptoms come within section 10(1)(c) as being the consequence of personal injury. Symptoms of injury are not caught under section 10 except that these might fall within section 10(1)(c), being a consequence of personal injury. The focus under section 10 is to identify what is the personal injury and whether its cause is wholly or substantially by gradual process, disease or infection. 6 It follows that only a pre-existing condition which falls within the definition of personal injury can be excluded by section 10. Degeneration or degenerative changes may not necessarily be a personal injury. In the same light, incapacity is not necessarily an injury but may be evidence of an injury. I accept Mr Sara's submission that if a victim is found with some pre-existing condition that is excluded by section 10, the ongoing effects of that condition cannot be the basis for cover. That submission is supported by the fact that the opening words of section 10 are "for the avoidance of doubt" so that section 10 is intended to be considered as a companion to section 8 which provides in subsection (2) "cover under this Act shall extend to personal injury which-(a) Is caused by an accident to the person concerned". Section 10 excludes from cover those personal injuries caused wholly or substantially by gradual process, disease, or infection unless they fall into the specific exceptions referred to in the section. Section 10 clarifies the issue of cover created by section 8(2) by qualifying it to the extent that personal injury caused wholly or substantially by disease is excluded from cover. Mr Sara submitted, and I agree with it, that if personal injury caused wholly or substantially by disease is not covered then it must follow that a personal injury caused partially by disease may be covered subject to the overriding requirement that there has been an accident and so long as the effects of the personal injury by accident are present, cover and entitlements will continue. To that extent an accident victim may have some personal injury caused by disease but may nevertheless be entitled to cover. The extent to which incapacity flows from that disease is governed by section 37 so that provided incapacity flows at least partially from accident and trauma related causes, then the victim may have entitlements. Accordingly, it is not necessary for the respondent to have recourse to section 10 to disentitle the appellant where the effects of injury caused by accident have dissipated and ongoing problems are due to disease or other process not covered by the Act. The position then is that when a claim is lodged the question of cover is determined at the outset. That involves a determination of whether there has been a physical injury caused by accident. Once the determination of cover has been made then I agree that all physical injuries must be covered, including that part of the injury caused by disease, provided that the cause or contribution is not the whole or substantial cause. This was adverted to by the Court in Collison (59/99) where it was said that "there can be no dividing up of responsibility. The disability is indivisible." This is because the Act does not allow for partial cover. I agree with Mr Sara's submission that once cover is granted in respect of a specific identifiable accident then cover remains for so long as the injuries sustained in that accident continue to affect the injured person. Turning then to the particular situation of this appellant: he was granted cover in respect of both the 1996 and 1997 accident. It is clear from Professor Burry's report that "there is no evidence that he has ever been restored to normal health since his accident and I cannot see that there could be any argument against the obvious conclusion that his current incapacity is directly related to his accident." Dr Ching, in his report, indicated that he did not know why the appellant continued to suffer chronic low back pain although there was some evidence of degenerative disc 7 disease which can cause low back pain. Mr Fosbender, while confirming a diagnosis of soft tissue injury in the lumbar spine with obvious degenerative changes within a single disc level, conceded that it was possible that there were other sources of pain within the lumbar spine. As I have said, I am indebted to Mr Sara for his careful analysis of the sections of the Act which I have adopted and approved in this appeal. On the basis of that summation, I consider that it is not open to the respondent to invoke the provisions of section 10 to revoke "cover" where "cover" is already been accepted. The principal question is the question of "incapacity". It appears to me from the medical evidence that while the effects of the accident in 1996 were still evident and were exacerbated by the accident in 1997, the medical evidence does not go so far as to demonstrate that the appellant has recovered from the effects of his personal injury by accident. On the basis of the medical evidence, I conclude that the appellant's ongoing incapacity is due more to his personal injury for which he has already been granted cover rather than to any underlying degenerative problems. I consider that the appellant continues to have cover for the affects of his personal injury. The appeal will therefore be allowed and the file returned to the respondent to make the necessary assessments. There will be costs to the appellant of $1,000 together with reimbursements of Professor Burry's fees. DATED at WELLINGTON this 2 8 day of January 2000 A W Middleton District Court Judge dca263-99.doc (nr)