White v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 347/2004 UNDER 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 of Tauranga Appellant (Appeal No. AI 187/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL OF JUDGE J. CADENHEAD [1] The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M.J. Beattie dated 3 March 2004. [2] The issue that confronted His Honour concerned the correctness of the respondent’s decision of 22 October 2002, whereby it suspended entitlements to the appellant pursuant to s.117 of the Injury, Prevention, Rehabilitation, and Compensation Act 2001, on the grounds that the medical condition which the appellant then presented, was then not attributable to the personal injury by accident for which he had been granted cover. [3] The background of facts relevant to the appeal are that in January 1986 the appellant, then aged 44, fell from the back of a truck whilst working for the New Zealand Forestry Service. He landed on his outstretched arm, suffering transmitted https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/347- 2004.doc AE 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. [4] On 22 September 1986, the appellant suffered a further neck strain while using a slasher, and cover was granted for this injury also. [5] On 15 May 1990, the appellant suffered a further neck strain whilst lifting a heavy table at his place of employment. [6] The appellant ceased his employment as a consequence of that injury, and commenced receiving weekly compensation. [7] 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%. [8] 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. [9] In October 2002, the respondent sought medical advice as to the appellant’s then medical condition, and its relationship to the covered injuries of 1986 and 1990. [10] As a consequence of that advice, the respondent issued its decision of 22 October 2002 suspending entitlements to the appellant. [11] The appellant sought a review of that decision, and for the purposes of that review, the appellant introduced a medical report from Dr Allan Doube, consultant rheumatologist. [12] In a decision dated 21 March 2003, the reviewer found that the medical evidence overwhelming 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 respondent’s decision to suspend entitlements was therefore confirmed. 347-2004 2 The Decision of Judge Beattie [13] I set out paragraphs 20, 21, 22 and 23 of Judge Beattie’s decision, which identifies the onus of proof and the issue that confronted His Honour: “[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.” [14] His Honour then went on and analysed the medical evidence, considered the opinions of Mr MacDonald, Mr Otto and Dr Doube. [15] His Honour then said at paragraphs 25, 26, 27, 28, 29, 30, 31, and 32: [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 Dr 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 347-2004 3 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. [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 on 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.” The Submissions of the Appellant [16] The appellant submits that Mr Caughey in his first medical report to the Corporation of 1992, diagnosed the appellant as having cervical spondylosis, and the whole body disability of 15%, and that in his second opinion there was a determination of a 20% disability due to the consequence of personal injury by accident. The Corporation accepted a disability of 20%. 347-2004 4 [17] The submission of the appellant is that this particular finding impacts upon the assessment concerning the cancellation or suspension of entitlements made by the respondent pursuant to s.117 of the Act. It is submitted that this situation was not taken into account by the District Court, and it is a substantial reason why leave was sought to appeal the District Court ruling. [18] In respect to s.117 of the Act, it is submitted that the application of this section is subject to the information in the respondent’s possession being correct. It is submitted that the information relied upon by the respondent was flawed, and the respondent failed to consider that the degenerative cervical spondylosis was a consequence of personal injury by accident covered by the 1982 Act. [19] The independence allowance assessment confirms that a component of the incapacity is the result of personal injury by accident. It is submitted that this is not a reasonable decision, and pursuant to s.54 of the Act, there was a responsibility on the respondent to make a decision on reasonable grounds and in a timely manner. [20] The decision, it is submitted, lacks reason or logic to accept that a finding accepted in 1995 of 20% permanent disability due to consequence of injury can be replaced with a finding of degeneration of a non-injury origin only in 2002. Decision [21] Section 117 of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 provides: “The Corporation may suspend or cancel an entitlement, if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement.” [22] This section, and other sections in past legislation, give a power to the respondent to review the present medical condition of an appellant concerning current symptomology. There is a continuing onus on the claimant to show that a claimant is entitled from time to time to the entitlement sought (Fowlie v ARCIC, John Hansen J, 4 October 2000, AP 50/00, Wellington, paragraphs 24, 51). [23] The effect of the section and the case law is that the respondent is able to revisit the issue of whether a claimant is entitled to continue to receive present entitlements. 347-2004 5 [24] The assessment made pursuant to s.78 of the Accident Compensation Act 1982 that the appellant had a 20% permanent disability, is a different assessment than that made pursuant to s.117 of the present Act. That assessment was made at a different time and considered a different issue. [25] As the review officer said in his decision at p.4, the question of permanent impairment does not address the issues of ongoing entitlements. The finding of permanent impairment, the reviewer said, was not relevant to the issue before him. [26] In my view, Judge Beattie asked himself the right questions, and after a careful analysis of the medical evidence, upheld the decision of the respondent to suspend entitlements. [27] The analysis of the medical evidence was a factual one, and does not raise any issues of law. While the issue of suspension may be determined pursuant to s.117 of the present Act, the law that governs that issue is determined by the substantive legislation and legal principles pertaining in 1986 and 1990, namely, the Accident Compensation Act 1982, and the case law grafted upon it. [28] It is clear from the decision of Judge Beattie that he was well aware that that was the case, and he considered the matter not on the basis of a substantial cause but rather an exclusive cause, which was a more favourable test for the appellant, as that was the test that was applicable under the 1982 legislation. This issue has recently been canvassed by France J in Riley v ACC (CIV-2004-485-607, High Court, Wellington, judgment 22 October 2004). [29] The finding of Judge Beattie is that the original injuries are spent and were likely to have been spent within a short time of their occurrence. His Honour’s finding was that the appellant’s incapacity condition was wholly attributable to the symptomatic features of his cervical spondylosis, a degenerative condition unrelated to any incidence of trauma, and that the condition is not one for which the appellant could continue to enjoy entitlements. [30] I am of the view that Judge Beattie determined this case on its own particular facts, and that the Judge assessed those facts against the medical evidence. The medical evidence was the more recent medical evidence that he was required to consider. The assessment of differing medical evidence in this case does not involve a relevant issue of law. The Judge asked himself the correct questions, and decided 347-2004 6 those questions on a factual consideration on the materials before him. I do not consider that the issue of an earlier permanent incapacity finding impacts on the medical findings that the Judge has made in this case. [31] Accordingly, I decline to grant leave to appeal, as I consider that there is no proper issue of law fit to be stated for consideration by the High Court. There will be no order as to costs. DATED at WELLINGTON this …10th...… day of ………November………. 2004 (J. Cadenhead) District Court Judge 347-2004 7