White v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 029/2004 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CYRIL STANLEY WHITE (AI 187/03) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at TAURANGA on 29 January 2004 APPEARANCES Mr T Prendeville, Advocate for Appellant. Miss S Scott, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 October 2002 whereby it suspended entitlements to the appellant pursuant to Section 117 of the Act on the grounds that his present medical condition was not attributable to the personal injury by accident for which he had been granted cover. [2] The background facts relevant to this appeal may be stated as follows: • In January 1986 the appellant, then aged 44 years, fell from the back of a truck whilst working for the New Zealand Forestry Service. He landed on his outstretched arm suffering transmitted force through the arm to his neck. The appellant was off work for a period with that injury and he was granted cover and received weekly compensation for same. 187.03 (2) (pg) 2 • On 22 September 1986 the appellant suffered a further neck strain whilst using a slasher. Cover was granted for this injury also. • The appellant was off work again for some three months before taking voluntary redundancy. The appellant moved to Auckland where he obtained employment as a school caretaker and during the next three years he experienced intermittent neck pain symptoms. • On 15 May 1990 the appellant suffered a further neck strain injury whilst lifting a heavy table at his place of employment. The appellant ceased his employment as a consequence of that injury and commenced receiving weekly compensation. • In 1992 the appellant received a lump sum payment in respect of his neck injury based on a 15% disability and that lump sum was increased in 1995 when the appellant's disability was then assessed as being 20%. • In April 1999 the appellant was assessed for an independence allowance and was determined as having a 5% impairment in respect of his cervical spine. • In October 2002 the respondent sought the opinion of Mr Brian Otto, Orthopaedic Surgeon, as to the appellant's then medical condition and its relationship to the covered injuries of 1986 and 1990. • Mr Otto reported to the respondent following his examination of the appellant and advised that in his opinion the appellant’s present condition was wholly attributable to underlying degenerative disc disease in his cervical spine. As a consequence of Mr Otto’s advice the respondent issued its decision of 22 October 2002 suspending entitlements to the appellant. • The appellant sought a review of that decision and for the purposes of that review the appellant introduced a medical report from Dr Alan Doube, Consultant Rheumatologist. • In a decision dated 21 March 2003 the Reviewer found that the medical evidence overwhelmingly identified the appellant's condition as being cervical spondylosis, a degenerative condition of the cervical spine and not attributable to the neck injuries suffered. The appellant’s decision to suspend entitlements was therefore confirmed. 187.03 (2) (pg) 3 [3] The respondent contends that the decision it made was the correct decision having regard to the medical evidence which it had in its possession. The Court, in the context of this appeal, is required to look at that medical evidence and determine whether, in the light of it, that decision was correct. In all cases involving a suspension of entitlements the medical evidence is crucial to a determination of the issue and I therefore set out what I find to be the salient points in the medical evidence. [4] It should be noted that the appellant contends that his neck problems started with the fall in January 1986 and which was exacerbated later on in that year. It is the case that the respondent has a record of those two claims but no details whatsoever save for them being described as 'sprain or strain to neck'. The first medical evidence is in fact an X- ray report obtained by the appellant's GP on 8 February 1990, that is, prior to the occasion of the neck injury in 1990. That X-ray was sought because of the appellant's then neck pain. [5] The X-ray report stated as follows: "There is marked narrowing of the C5-C6 intervertebral disc with mild secondary sclerosis and posterior marginal osteophytic lipping indicating longstanding disc degenerative changes. Evidence of bony injury detected. Oblique views show well marked osteophytic encroachment of the neural foramina at the C5-6 level, the remaining foramina being clear. No other significant abnormality detected in cervical region." [6] In September 1990 the appellant's GP referred him to Dr David Caughey, Rheumatologist, for assessment. Dr Caughey identified the appellant's neck condition as being mild cervical spondylosis. [7] In October 1990 the appellant's GP, Dr Russell, was asked to provide certain information regarding the appellant's neck condition and he gave as his advice that the appellant had cervical spondylosis and mild early osteoarthritis. Dr Russell noted the earlier injuries to the appellant’s neck of 1986, 1988 and 1989. [8] The next specialist to see the appellant was Mr Graeme MacDonald, Neurosurgeon, who examined the appellant in October 1991. Mr MacDonald had the X- rays of 1990 for reference and he summarised the appellant's situation as follows: 187.03 (2) (pg) 4 In summary, Mr White is a 50 year old man who was previously working in the forestry service north of Auckland, and who describes several stresses to his cervical spine which have been associated with posterior and right sided cervical pain, and which have left him with ongoing discomfort around the right trapezius muscle, right shoulder, and at times radiating into his right arm. The level of discomfort fluctuates, and is aggravated by strenuous activity. Mr MacDonald then gave as his diagnosis and advice as follows: "The current diagnosis is cervical spondylosis. I have described above my findings on examination, and I do not think there is definite evidence to suggest involvement of any of the cervical nerve roots in the degenerative change. . . . Degenerative change in the cervical spine is commonly seen in persons doing heavy work activity, and as in this particular case, the earliest changes are seen at the C5/6 level. It is thought that this type of degenerative change is associated with multiple stresses over a period of many years and is unlikely to be related to one particular accident." [9] The appellant was next seen in July 1992 by Mr Michael Caughey, Orthopaedic Surgeon, for the purposes of lump sum assessment. Mr Caughey interpreted the X-rays of 1990 as revealing “moderately severe degenerative changes throughout the cervical spine.” Mr Caughey then advised: “Mr White’s current disability is clearly not the result of a single injury but the situation has been exacerbated by a series of injuries over the years. He now exhibits moderately severe cervical spondylosis.” [10] Mr Caughey examined the appellant again in October 1995 and for which purpose he had further X-rays taken of the appellant's cervical spine. Mr Caughey noted that there had been some deterioration of his cervical spine since 1990 and he noted that in view of the severity of the degenerative changes that the appellant then presented his disability was now 20% of total body. [11] In January 1999 the appellant was seen and assessed by Dr G. Emrys, Occupational Medicine Specialist, for the purposes of a Work Capacity Assessment. Dr Emrys gave his diagnosis of the appellant's then condition as cervical spondylosis and chronic pain. [12] In April 1999 the appellant was assessed for an independence allowance by Dr Hollister-Jones and he had all the earlier medical reports for reference. 187.03 (2) (pg) 5 Dr Hollister-Jones assessed the appellant as having a 5% impairment of his cervico- thoracic spine and he then went on to consider the causal relationship of that condition with his neck injuries. He stated as follows: "Cyril’s neck and arm symptoms are due to cervical spondylosis, a degenerative condition of the cervical spine. The x-rays performed in 1990 demonstrate that this process was well established at that time, and therefore the injury sustained in 1986 is unlikely to be the cause of this, although it may have exacerbated the condition. Cyril has subsequently suffered further neck “injuries” which have also exacerbated his symptoms. His complaints of arm pain are presumably due to some nerve root irritation as there is no clear indication of radiculopathy. In addition Cyril’s reported level of pain and disability is high and there is a component of “chronic pain syndrome” in his behaviour." Dr Hollister-Jones then gave as his reasons for finding Category II impairment stating as follows: "In the absence of clear clinical signs of radiculopathy Cyril’s neck impairment is classified in DRE cervico-thoracic Category II, minor impairment. This gives a lower impairment rating than previous examiners, which I believe is appropriate as the majority of Cyril’s impairment is due to an age related degenerative condition." [13] The next report is that of Mr Otto, Orthopaedic Surgeon, who reported on 2 October 2002 to the respondent. Mr Otto had details of the appellant's history, including many medical reports, and he had the two sets of X-rays for reference. Mr Otto noted those X-rays and advised that the changes that were represented in those X-rays demonstrated underlying disc degenerative disease. He further commented that although the appellant had contended that he had suffered a hairline fracture in his cervical spine he would have been surprised if that had been the case. Mr Otto went on to state as follows: "On the balance of probabilities, I would believe that the disc degenerative disease that is evident in the 1990 X-rays, represent changes more long standing than would have appeared in the 4 year interval between his accident in 1996 and the X-rays at that review, and that it is more likely that the underlying pathology in this man's case has been disc degenerative disease all the way through his complaints of pain in the cervical spine. The basic underlying pathology in this man's case is cervical disc degenerative disease, principally involving the C5-6 level in his cervical spine, which is a common level to show wear, and also involving 2 levels, particularly posteriorly in the facet joints at C3-4 and C4-5. 187.03 (2) (pg) 6 The management of disc degenerative disease is particularly the use of physiotherapy with heat and gentle traction, and encouragement towards normal movements of the neck, and this was noted to work on the first occasion following his injury, and after 6 weeks he returned to work. A further repeat event, when he hit a log with the slasher, caused more pain, and that is no (sic) uncommon when there is underlying pathology such as disc degeneration in the neck. A subsequent injury lifting a heavy table onto a deck, produced more neck pain, which is not uncommon when there is underlying disc degeneration as loading the cervical spine does unmask the changes, and so to (sic) would be the effect of an extension injury where a bookcase fell and struck him on the nose, unmask the underlying degenerative changes in his neck. I believe that the essential cause for his ongoing pain is that of disc degeneration, principally involving the mid cervical C5-6 level, and would account for the numbness and changes into the left arm, particularly if the nerve was pinched in a narrow canal resultant upon the disc degeneration." [14] Mr Otto then answered specific questions as follows: Q. In your opinion is Mr White's current incapacity predominantly due to his injuries of September 1986 or other factors, i.e. ongoing pain, degenerative changes? A. The answer is that the underlying pathology appears to have been disc degeneration at the C5-6 level throughout the entire period of his disability and is based on a fall with transmitted force through the arm to the neck, unmasking the underlying degenerative changes and aggravating them. Q. In your opinion are the injuries spent? A. The answer is the effects of the injury per se were spent and were likely to have been spent within a week of their occurrence, the recurrent symptomatology and clinical picture relates to the underlying degenerative changes and aggravation of those changes by additional small injuries. Q. Is the current incapacity due exclusively to disease? A. Mr White has ongoing changes in the upper and mid cervical spine, enough to account for the discomfort of which he complains, but these are based on disc degeneration and have been present for a number of years, and have been used to explain his disability, and the re-activating events have only served to stir up the underlying pathology. The incapacity is, in my opinion, due exclusively to underlying disc degenerative disease in his cervical spine. 187.03 (2) (pg) 7 [15] Following the issue of the respondent's decision to suspend entitlements the appellant's advocate sought the opinion of Dr Alan Doube, Consultant Rheumatologist, and he reported on 11 February 2003. The essence of Dr Doube's advice was as follows: "The nature of his fall was such as to cause a significant jarring injury to his neck of the kind usually associated with whiplash. The delay in onset of symptoms is typical of a significant soft tissue lesion. Despite the assertion of Mr Otto's that the effects of such an injury should have dissipated in a short space of time, medical epidemiological studies would indicate that a significant number of patients with such injuries continue to have significant pain going on often for many years. Further the likelihood of pain persistence is unrelated to the severity of the initial injury or indeed to any particular attributes of person such as their psychological make up etc. It is not clear whether degenerative changes were present at the time of the injury. They were certainly present some four years later on X-ray although the degenerative changes are very localised to one disc level. It is possible that disc was injured at the time of his original injury and the degenerative changes have occurred as a consequence. Although foraminal narrowing has been identified the symptoms radiating down into the right arm are of a non-dermatomal distribution and are not arising from any compression of nervous tissue. They are consistent with the rather diffuse symptoms patients describe as part of soft tissue/mechanical back lesions. Current wisdom relates the distribution of these symptoms to the sympathetic blood vessel supply although the exact mechanism I think is speculative. It is clear that Mr White's ongoing disability is related to his pain and that prior to his injury in 1986 he was not troubled with pain. On examination he is noted to have tenderness in the paraspinal muscles. Soft tissue tenderness is not a feature of simple degenerative disease. In my opinion Mr White's ongoing symptoms and disability are related to his episode of injury in 1986. It is possible that the degenerative changes at the C5/6 level that have been identified may be a consequence of that injury, however the nature of his symptoms and the tenderness in his neck indicate that these degenerative changes are not the primary cause of his ongoing pain." [16] On being provided with Dr Doube's report the respondent referred it to Dr J R Monigatti, Occupational Physician, who commented as follows: 1. He was untroubled at the time (of the fall): Mr White's injury is well described in Mr McDonald's report of 26 October, 1991. After falling from the truck he had painful locking of the neck for 10 minutes, then got some movement back into it and was able to drive but had ongoing posterior cervical right-sided pain. 187.03 (2) (pg) 8 2. The delay in onset is typical of a significant soft tissue lesion: any soft tissue injury I have ever experienced or encountered was painful immediately. 3. This discomfort has persisted, by and large: The history is one of remission and relapse of symptoms from before 1986 and continuation of work until 1990. This would indicate a progression rather than a steady state. 4. A significant number of patients continue to have ongoing pain: Perhaps, but Dr Doube's attribution of this to "a significant soft tissue injury" rather than to the pathology readily visible is pure speculation. 5. It is possible that the disc was injured at the time of his original injury and that the degenerative changes are a consequence: This is speculation again, and in my opinion, an attempt by Dr Doube to cover both bases. 6. The symptoms are consistent with soft tissue/mechanical back lesions…Soft tissue tenderness is not a feature of simple degenerative disease …degenerative changes are not the source of his ongoing pain: All of the other specialists who have examined Mr White since 1990 ascribed the symptoms and clinical findings to cervical spondylosis (degenerative disc disease), with which they are entirely consistent. Dr Doube does not identify what he considers to be the source of the pain beyond saying it is from an injury caused by a fall in 1986. 7. Prior to his injury in 1986 he was not troubled with pain: A temporal association does not necessarily amount to a causative one. Mr Otto's explanation that the fall rendered a pre-existing condition symptomatic is at least as plausible as Dr Doube's implication that it caused an ongoing injury. Dr Doube's report is short and his conclusions are, in my view, unsubstantiated. I see no reason for ACC to prefer them to those of Mr Otto, an expert in his field." [17] Dr Doube responded to Dr Monigatti's comments and his response to certain of the points made by Dr Monigatti were as follows: "4. Dr Monigatti makes the assumption that the documented radiographic abnormality is the cause of his symptoms: This is a common misunderstanding with regard to back pain although the concept of incidentally found radiological lesions is well accepted in all other settings, e.g. incidental cysts in the kidney, etc. etc. Indeed it is well documented that symptoms of back pain correlate poorly with radiologically visible lesions, including and especially degenerative lesions. Patients with symptoms commonly have no radiographic abnormality and vice versa patients with severe radiographic abnormality are as likely to be asymptomatic. This issue is so well accepted among those of us involved in musculoskeletal medicine as to be assumed that others also understand it. 187.03 (2) (pg) 9 5. The localised nature of his degenerative changes does raise the issue as to whether there was some trauma to the disc at the time: Dr Monigatti is correct in identifying that this is speculative. 6. It was once believed that the sun went about the earth and it was of course a minority view that the reality was quite the opposite: As previously stated the relationship between radiological changes and symptoms of back pain has been well explored by the profession and found to be wanting. Just because a definitive alternative cause of his back pain cannot be stated with conviction does not mean that the injury that occurred is not responsible for his ongoing symptoms. 7. It seems unusual to suggest that a person who was asymptomatic prior to an episode of injury who then subsequently becomes symptomatic does not have some relationship between the injury and symptoms: The previous existence (if indeed it was present) of degenerative change does not preclude an individual from further trauma to that area." [18] Mr Prendeville, advocate for the appellant, made the following submissions: • The appellant had the benefit of the 1982 Act definition of personal injury which identified that exclusion from cover could only be if the condition was caused exclusively by disease, infection or the ageing process. • The assessments for lump sum and independence allowance identified percentages of an impairment or disability which would still apply. • Mr Otto interpreted earlier reports as referring to degenerative disease whereas the expression had been degenerative changes. • Mr Otto's opinion is based on out-of-date X-ray reports. • There is no evidence of disc damage prior to 1986. • The reference in the 1990 X-ray of long standing disc degenerative changes can refer to the four years that elapsed between the 1986 injury and the 1990 X-rays. • Dr Doube's opinion is to be preferred. [19] Miss Scott, counsel for the respondent, submitted as follows: • All the specialists referred to cervical spondylosis. • No evidence of fracture, only reference on records is to a sprain or strain of the neck. • X-rays taken closer to the dates of the injuries are to be preferred. 187.03 (2) (pg) 10 • Mr Otto and Mr MacDonald identify the degenerative changes as being of long-standing. • The lump sum and independence allowance assessments cannot be used where the respondent considers they do not correctly express the legal position. Dr Doube's opinion is speculative. DECISION [20] This is a case where the onus is on the appellant to establish on the balance of probabilities that the medical condition which he presented at the time the respondent made its decision, and which was alleged to be incapacitating, was causally connected to the personal injury for which the appellant had been granted cover. [21] In the present case the injury for which the appellant was granted cover was a neck strain and this was the injury that he suffered both in 1986 and then in 1990, as well as aggravations of same both between those dates and subsequent. [22] I find that the diagnosis of the appellant's condition at the time when his entitlements were suspended was that of cervical spondylosis and that this had been his condition for at least 3 years prior to that time as evidenced by the diagnoses of both Dr Emrys and Dr Hollister-Jones. [23] That being the case, it is incumbent upon the appellant to establish that that condition is attributable to the personal injury for which he was granted cover; or alternatively, that despite that condition there is still a real and effective presence of the neck strain injury, so that it could not be said that the cervical spondylosis, if it be found to be as a result of natural degeneration, is not the exclusive cause of his present condition. [24] Dealing with the first of those propositions, I find that the opinion of Mr MacDonald, given as it was in October 1991, is significant, when he considered that the degenerative condition which the 1990 X-rays disclosed was ' …associated with multiple stresses over a period of many years and unlikely to be related to one particular accident.' The X-ray report itself refers to long-standing disc degenerative changes. Finally, Mr Otto advises that in his opinion the 1990 X-rays indicated that the cervical spondylosis was of greater than 4 years prior to the taking of those X-rays. 187.03 (2) (pg) 11 [25] The only contrary evidence is that of Dr Doube and he puts it no higher than a possibility that the degenerative changes may be as a consequence of injury, but it is to be noted that in any event Dr Doube does not consider the degenerative changes to be the primary cause of the appellant's ongoing pain. [26] On the basis of the evidence of Mr MacDonald and Mr Otto I find that the appellant's condition of cervical spondylosis is not attributable to either of the neck strain injuries which he suffered and for which he was granted cover. [27] Having found that as I have, it is therefore necessary for the appellant to establish that the cervical spondylosis is not the exclusive cause of his current pain condition and that the neck strain suffered in 1986 and further aggravated in 1990 is still in some material way playing a part in his present disabling condition. [28] Despite the assertions of Mr Prendeville, I find that there is no evidence that the appellant suffered a disc fracture in either of the two covered incidents. Such a condition is virtually discounted by Mr Otto, and I note that none of the specialists who saw the appellant in the early or mid 1990's referred to any fracture. In fact the only reference to a fracture is in the letter of instruction by the respondent's case manager to Mr Otto when she refers to the appellant having a claim for a fracture to his cervical spine dating back to 1986. That statement does not establish the fact of a fracture and it flies in the face of the only record which the Court has of that 1986 incident which is the respondent's note of the injury as being a sprain or strain. This can be contrasted with the notation of another injury suffered by the appellant which was described as a fracture of his foot. [29] It is the evidence of Mr Otto, who examined the appellant and had the benefit of all the earlier medical reports and X-rays, that the appellant's incapacity was due exclusively to the underlying disc degeneration disease in his cervical spine. Furthermore, it is his opinion that the strain injuries are spent and are likely to have been spent within a short time of their occurrence. The appellant's ongoing problems from those occurrences being caused by the aggravation to his degenerative discs in his cervical spine. It was Mr Otto's opinion, which I accept, that the various neck strain injuries which the appellant suffered unmasked and aggravated that underlying degenerative condition. 187.03 (2) (pg) 12 [30] Whilst the Court must rely on the evidence presented in any particular case it can nevertheless take notice of the fact that the particular circumstances to which Mr Otto refers are those that the Court has heard from a substantial body of specialists who have given evidence in various appeals in this jurisdiction. I state this for the reason that Dr Doube asserts that the degenerative state of the appellant's cervical spine is not the cause of his pain and ongoing problems, but rather, he is continuing to suffer from a soft tissue lesion. Again, Dr Doube accepts that his view is speculative, but nevertheless he asserts it. It is his opinion that the tenderness in the appellant's neck is not associated with degenerative changes. [31] I take cognizance of the criticism that Dr Monigatti has made of Dr Doube's theory and I similarly note that without a clear foundation and basis for his advice, it cannot carry the day in the face of what is the expert opinion of all the other specialists whose reports have been presented in this present appeal and of the Court's acceptance of the medical fact that previously asymptomatioc degenerative conditions in a person's spine can be rendered symptomatic by the onset of pain as a consequence of some incident of trauma. [32] I am satisfied on the medical evidence that the appellant's incapacitating condition was wholly attributable to the symptomatic features of his cervical spondylosis, a degenerative condition unrelated to any incidents of trauma and that that condition is not one for which the appellant can continue to enjoy entitlements. I find that the respondent was correct in its decision to suspend entitlements on the evidence which it had and this appeal therefore must be dismissed. DATED at AUCKLAND this 3rd day of March 2004 M J Beattie District Court Judge 187.03 (2) (pg)