McCluskey v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 36 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CYNTHIA MARGARET MCCLUSKEY of Pirinoa Appellant (Appeal No. DCA 250/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of February 1998 APPEARANCES Appellant in person B A Corkill for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover as a result of an incapacity which the respondent held not to be due to personal injury by accident. The appellant lodged a claim with the respondent regarding an injury to her neck which she sustained on 31 October 1995. She said that she had suffered pain in her neck whilst swinging a golf club. Her General Practitioner diagnosed the problem as "strained sternomastoid on the right side". The claim was originally accepted by the respondent which paid towards treatment costs. Subsequently, the appellant was examined by Mr I M Kelman, an Orthopaedic Surgeon who reported to the respondent on 12 June 1996. In that report Mr Kelman stated: "The above patient was referred to my (sic) by her general practitioner, Dr Alison Mcfarlane, with pain in her neck. I have seen her over a number of years for generalised orthopaedic problems, particularly involving the lumbar spine where she has had severe pain. This had gradually begun to resolve to the extent that she was becoming more active. She had commenced golfing lessons and during this time she twisted her neck severely and has had severe pain with constant headaches since then. She claims to have had a headache 90% of the time. Clinical examination at the time showed evidence of cervical spondylosis without any radiculopathy in the upper limbs. A CT scan was requested and the report is enclosed. This report states that there is severe disc degeneration in her cervical spine from C4 to Co without any impingement upon neural structures. In response to your questions: (a) The current diagnosis is that of cervical spondylosis of a mechanical type brought on by an activity in a previously mildly degenerative neck. (6 ) Her current incapacity is caused by injury in a neck which has some mild degenerative changes. Her current situation would not have arisen had she not inured (sic) herself. (c) I would expect that her injury would have taken a considerable time to improve given that there was a degenerative change prior to the accident and hence the delay in this condition settling. (d) In view of her headaches I have asked her to be seen by a neurosurgeon and an appointment has been arranged with Mr G Martin at Wakefield in Wellington. The treatment to date has been immobilisation in a cervical collar with analgesics and anti-inflammatories. Physiotherapy aggravated the situation previously. (e) Her functional limitations are inability to turn her neck without pain, therefore inability to lift and carry out normal nursing duties. She is also restricted in her functional duties at home with respect to carrying out household chores, however she is able to carry out activities of daily living. I would hope that Mrs Mcclusky (sic) would be able to return to work but this may be in a limited form of restricted hours. It is difficult to state when this would happen but for this kind of injury I would anticipate within the next three months the situation should be resolved. 3 there are no other factors apart from those already mentioned, i.e. she has evidence of degenerative change in her cervical spine in keeping with her age and that this has been aggravated by the recent event." The report of the CT scan dated 24 May 1996 states: "There is evidence of established disc degenerative change at the level of C4-C5 with posterior osteophytes and gas in the disc space. There is also similar change at the level of C5-Co. Hard disc is present at this level. The unco-vertebral joints also are involved but there is no significant compromise of the exit foramina. There is no significant bony outgrowth from the paravertebral joints." Mr Kelman referred the appellant to Mr G Martin, a Neurosurgeon, whose report of 11 June 1996 states: Thank you for referring Mrs Mccluskey, whom I had met last year when she brought her son down for a cranioplasty. I think her headache and neckache probably are due to the C5/6 osteoarthritis, especially because the CT shows that there is gas in the disc space. Although gas can be painless and physiological, I think it is due to negative pressure within the disc, and so is often an indicator of abnormal stresses across that disc. I am a bit worried about her upper cervical spine. I can't see the facet joints of C2/3 clearly, and the A-P of C1/2 is not completely symmetrical. What has worried me about this is when I listened to her story before seeing the films, I thought it was likely to be an upper cervical lesion. When I palpated her neck I found her tender in the insertions of sternomastoid on the right and tender over the transverse process of C2. However, putting it all together, I think the most likely cause of pain is C5/6, and even if some arthritis of C2/3 was demonstrated, I think you would have to treat C5/6 as well. Consequently I have decided not to investigate her upper spine but to fuse C5/6 and wait and see how she gets on. She has been on treatment for osteoporosis, and her spine does look a bit osteoporitic. I will take two grafts from her iliac crest and use four layers of cortical bone, rather than just the standard two layers." On 19 July 1996 the respondent wrote to the appellant advising her that all entitlements to cover under the Act were cancelled as her continued disability was the result of her arthritis rather than an accident when she swung the golf club. The appellant applied for a review of that decision and in her application stated that until the incident with the golf club she had had no problems with her neck. 4 The respondent then requested Mr Martin to consider the appellant's position and in a report dated 23 September 1996 he stated: Thank you for your request for a report on Mrs Mccluskey. Her pain is due to a combination of the swing of the golf club and osteoarthritis. The osteoarthritis was pre-existent, but the swinging of the golf club precipitated the pain. Thus, when the problem is a combination of the two, the expected time for a recovery to the sternomastoid is irrelevant. It is anyway about six weeks but some of them remain painful for years. All I can say about whether I would expect recovery by now, or not, for the combination, is that a majority do recover, but a minority do not and they are those that need surgery." The respondent referred the reports to its Medical Advisor, Dr K Bremner who requested Mr Martin to advise to whether and to what extent the incident with the golf club on 31 October 1995 continued to materially contribute to her osteoarthritis C5/6. Mr Martin's reply of 29 October 1996 states: Thank you for your letter about Mrs Mccluskey's injury. No, I do not think that her continuing problems arise substantially from her earlier golfing injury. I do not think they were precipitated by the golfing injury and have continued ever since, but may have been precipitated, and persist, with quite minor trauma to an osteoarthritis joint like this. I was under the impression, that because of the "eggshell skull principle" if symptoms are precipitated by trauma, even if relatively minor, then entitlement under the Act was automatic. However, I am quite clear in my mind that her symptoms are not substantially contributed to by her earlier golfing injury." The appellant then arranged through her General Practitioner to be examined by Mr C W Hoffman, an Orthopaedic and Spinal Surgeon whose report of 11 March 1997 states: "Thank you for referring Mrs Mcclusky (sic) who did indeed give a good account of her injury. She has had a lengthy appeal process with the A.C.C. which has been ongoing. Her neck has resolved 90% and she still has some disablement involving her right shoulder and occasional headache. 5 The injury she described was during a golf swing and it precipitated pain in her neck down into her right arm and shoulder and also gave her a headache. Initially she was thought to have met the criteria for A.C.C. and she had a claim registered. It was subsequently declined on the basis of Graham Martin's opinion that she had a pre-existing degenerative segment at C5/6 and therefore her ongoing disability was due to the pre-existing condition rather than to the injury. lain Kelman her Orthopaedic Surgeon felt that the injury was directly related to her symptomatology given that prior to the injury she had no symptoms at all from her neck. Luckily she settled down considerably and is not so disabled with her neck. She had a full range of motion today with no evidence of restriction and no pain, no tenderness in the midline posteriorly. She had no demonstrable weakness in the upper limbs with normal reflexes and sensation. Reviewing her x-rays clearly she has a mobile segment at C5/6 with translation evident on flexion extension views. She also mentioned that her right knee had been troublesome. This has settled completely and in fact is not bothering her at all. I discussed with her medicolegal implications of her claim. There is a principle known as the eggshell skull principle which states that if you have a pre-existing condition and then you sustain an injury you should be covered because the pre- existing condition made you susceptible to the injury. The injury itself was still required to precipitate disablement. In Cynthia's case clearly she had an injury of a very minor nature involving a golf swing. Graham Martin and lain Kelman both suggest that it would have taken anywhere between six weeks and three months to settle down if she had sustained the injury and had a normal neck. Given that her neck had pre-existing cervical spondylosis the A. C.C. have declined the claim. She is appealing this and I think she is entitled to recognition that she did sustain an injury and that there was a period where the A.C.C. were culpable for her expenses perhaps set at three months. Unfortunately once a claim is accepted by the A.C.C. the legislation allows for any ongoing treatment of that lesion to be covered by A.C.C. and clearly they are not going to take on a problem such as hers given that she had a pre-existing spondylosis. I spoke with Bill Shirer who is the Medical Director for the A.C.C. in Lower Hutt Branch and he stated to me that the A.C.C. are taking a much harder line with claims where there is a pre-existing condition. Cynthia and I had a full and frank discussion about it. At this stage given her symptomatic improvement I don't believe any further treatment is necessary. I wouldn't restrict her activities excessively and allowed her to return to playing tennis. If she has any further problems I would be happy to see her again." In her appeal, the appellant stated that she should have the benefit of the "eggshell skull principle". She also stated that the respondent should not have delayed for some three months before declining her claim. She stated that prior to the golf club incident she had been working full time as a Nurse and led an active, normal life including tennis and gardening and that she had no problems whatsoever in her neck. She then suggested that an accident to her lower back in 1984 may have been the cause of the problem or it may have been contributed to by repetitive strain due to lifting as a Nurse for some years. She expressed concern that the respondent was negligent and incompetent in failing to warn that cover may not be granted. She said that had she known earlier she could have applied for a sickness benefit because the delay in declining her claim has caused her a serious loss of income. Mr Corkill submitted that it is not open to the Court to consider that the problem may be as a result of a previous accident as this is not consistent with the medical evidence. In particular, he referred to the fact that Mr Kelman considers "she has evidence of degenerative change in her cervical spine in keeping with her age". Mr Corkill submitted further that the evidence demonstrates that the principal cause of the appellant's ongoing incapacity is the cervical spondylosis and she is therefore not entitled to cover pursuant to section 10 of the Act. While section 8 of the Act provides that a person who suffers personal injury by accident is covered under the Act, section 10 provides: "10. General exclusions from cover--- (1) 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--- (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury covered by this Act. (2) For the avoidance of doubt it is hereby declared that--- (a) Personal injury caused wholly or substantially by the ageing process; (emphasis mine) and (b) Personal injury to teeth that is caused by the natural use of those teeth--- is not covered by this Act." 7 It is clear from all the medical evidence that the specialists concluded that the substantial cause of the appellant's ongoing problems is the ageing process. That is clearly supported in all the specialists' reports and it was on that basis that the respondent concluded that the appellant was not entitled to cover. While the appellant is naturally concerned that the respondent took some time before cover was declined, that can not be the fault of the respondent which had to rely on medical evidence before it could fully consider her application for cover. While cover was accepted originally on the basis of the General Practitioner's initial certificate, a further investigation by specialists demonstrated that while there had been what Mr Hoffman described as "an injury of very minor nature involving a golf swing", all the medical evidence indicated that the continuing disability is the result of the ageing process. Accordingly the respondent was entitled pursuant to section 73(1) to notify the appellant that after full investigation she was not entitled to cover under the Act. Section 73(1) empowers the respondent "if not satisfied of the basis on the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment." While it is natural for the appellant to accept that it was the incident with the golf club which has caused all her problems because they were asymptomatic prior to that incident, the provisions of section 10 of the 1992 Act make it much more difficult to invoke the eggshell skull principle which the appellant has claimed in her support. Section 10 clearly establishes that personal injury caused wholly or substantially by the ageing process (emphasis mine) entitles the respondent to have regard to the medical evidence before making its decision. In this case the medical evidence supports the finding of the respondent which was confirmed by the Review Officer. Accordingly the appeal must be dismissed. DATED at WELLINGTON this AM day of March 1998 A W Middleton District Court Judge dc250-97.doc (nr)