Porima v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH [2012] NZACC 91 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DAMIETTA PORIMA (ACR 751/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 12 March 2012 APPEARANCES Mr K Murray, Advocate for Appellant. Mr I Hunt, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 8 February 2010, whereby it declined to grant cover to the appellant for the medical condition of fibromyalgia, on the grounds that it was not a medical condition arising from her covered back injury suffered in January 1999. [2] Whilst it is the case that the respondent's decision referred to her medical condition as being that of fibromyalgia, there is also a significant amount of medical opinion which simply identifies the medical condition as being a chronic regional pain syndrome. For the purposes of this appeal the Court is simply going to rule on the medical condition as it has been severally described. The important issue is whether that condition can be shown as being causatively linked to the appellant's back injuries suffered in January 1999, and in particular, the fracture she suffered at T12. 2 [3] The background facts relevant to the issue in this appeal may be stated as follows: On 9 January 1999 the appellant, then aged 27 years, suffered a series of injuries in a motor vehicle accident. Those injuries included a burst fracture at T12, fractures of the right second and third metacarpels, multiple lacerations, and severe bruising on several areas of her body. The appellant was placed in a body cast to stabilise her pain. In a subsequent x-ray of the appellant's spine carried out in 2000 it was noted that she had developed spinal curvature in the area of T12. At the time of her injury the appellant was employed as a sales assistant, and after a considerable period of post-accident rehabilitation the appellant returned to her employment. The Court has not been informed as to when in fact she did return to employment, but there is comment in one of the medical reports that she was so back at work in December 1999. As of May 2009, the appellant was self-employed running an industrial cleaning business On 27 May 2009 the appellant suffered a fall whilst she was carrying some wood up some stairs, and in that fall she jarred her back, knee and neck. Following that fall the appellant began to experience more significant pain in her spine, although it is the case that no physical injury has been identified. It is the case that the nature of the pain she began to experience resulted in her being unable to continue work. Although a claim for cover for the appellant's significant back pain was lodged, a decision was not made immediately, and from the respondent's perspective it sought various opinions both from independent specialists and from its own Branch Medical Advisor. 3 It was not until a second opinion had been received by the respondent from Dr Christopher Strack, Specialist Occupational Physician, in a report dated 27 January 2010, that the respondent issued its decision, now the subject of this appeal. Subsequent to that decision further medical opinion has been obtained both for the appellant and the respondent, and that further evidence was presented at a review hearing in September 2010. In a review decision dated 22 October 2010, the Reviewer, Ms C Hickey, confirmed the respondent's primary decision stating, inter alia, as follows: The balance of the medical evidence establishes that Mrs Porima's current condition causing her incapacity is a chronic pain syndrome, whether it is at times actually fibromyalgia or not. However, I do not consider that the balance of medical evidence meets the standard of proof necessary to provide that the chronic pain syndrome is caused by the covered 1999 injuries. Further, there is no medical evidence at all of a new, separate or distinct injury in May 2009 (when carrying the wood) that could have caused Mrs Porima's current condition. Even if there was there is no ACC cover for such an injury. The effect of my decision is that ACC decision was correct and I dismiss Mrs Porima's review application. For the purposes of the appeal to this Court further specialist evidence has been introduced from Mr R J Rietveld, Orthopaedic and Spinal Surgeon, from Mr Fosbender, Orthopaedic Surgeon, and from the appellant's GP, Dr E A Pearson. [4] In this case there is no dispute between the parties that the appellant is suffering from what might be described as a chronic pain syndrome in her thoracic spine, and it is the case that the respondent contends that this condition is not related to the injuries suffered by the appellant in 1999, whereas Mr Murray, on behalf of the appellant, asserts that there is indeed a causative link. [5] The medical specialist who seems to have had the longest association with the appellant is Mr Graham Inglis, Orthopaedic Surgeon, who first treated the appellant back in 1999, following the injury event. In March 2006 Mr Inglis noted that the appellant was still suffering from significant back pain and it was at that time that he did offer her the option of cervical fusion at T11 and T12 on the basis that this would improve her pain condition, but it is the case that the appellant elected not to take up that option. [6] In August 2009, Mr Inglis provided a report and in it he noted that the appellant, whilst being able to engage in full-time work, had continued to suffer recurring episodes of back pain, and he noted that this had always been an issue for her. [7] In his report of 11 August 2009, in which he is commenting on the pain situation that had occurred in early 2009, he stated as follows: ... Since that time her pain has been significant and she has been to work over the last 12 weeks. She has continuing thoracolumber functional back pain which remains a major issue for her. She also has some pain down the anterior aspect of her thighs with a tingling feeling. This has also been an issue for her for some time. She says this is somewhat worse than it was before. ... Dee suffers from fairly non-specific back pain which has been a very significant inconvenience to her for many years now, somewhat worse over the last 3 or 4 months during which timeframe she has been unable to work. She is keen to pursue alternative treatment options. She is not at all enthusiastic about surgical options. I have briefly discussed with her today the possibility of stabilising the T11-12 motion segment. [8] Mr Inglis provided further comment in a request from ACC dated 14 September 2009, when he stated as follows: As you can (sic) from my notes this patient suffered a compression fracture of T12 as outlined in her history. She continues to have back pain which is reasonably non specific in nature though may well be related to her T12 fracture as indicated in my past correspondence. The T12 injury is directly related to the accident described in her history. As is always the case of back pain one can never be entirely specific about the cause and effect relationship between what is seen on an x-ray and the pain a patient suffers from. I hope this is of some assistance to ACC. 19] The respondent then sought the opinion of Dr Christopher Strack, Specialist Occupational Physician, and in his report of 23 December 2009, he stated, inter alia, as follows: Overall, the MRI has identified no evidence of significant compromise of the spinal cord at the T12 level (the level of the wedge compression fracture). It has also identified no abnormality of the lumbar spine likely to be contributing to her problems. No abnormalities are identified in the pelvis or abdomen likely to be contributing to her symptoms. There are findings consistent with a simple cyst in the liver. I believe this is unrelated to her current problems. 5 I believe Ms Porima's current problems are primarily related to a significant degree of chronic pain dysfunction (chronic pain syndrome). She currently meets the 1990 American College of Rheumatology criteria for the diagnosis of fibromyalgia syndrome . .. There is a previous fracture of T12 with kyphosis in this region. There is no evidence of spinal compromise at this level, however, I believe that the presence of the T12 fracture has contributed to on-going symptoms over the years. It is likely that this has contributed to Ms Porima's chronic pain dysfunction problems which now meet the diagnostic criteria for fibromyalgia syndrome. You ask regarding the current diagnoses. I believe that they are as discussed above. The primary diagnosis at this stage appears to be widespread chronic pain dysfunction which currently meets the diagnostic criteria for fibromyalgia syndrome. This could also be described as non-specific spinal pain. There is a previous wedge fracture at the T12 level. This has been a cause of on-going pain over the years, with intermittent exacerbations. This may have contributed to the more widespread chronic pain symptomology that she has experienced since about March 2009. You ask whether Ms Porima remains incapacitated for work due to the effects of the injury for which she has cover (wedge fracture of T12). I am not of the opinion that Ms Porima is primarily incapacitated for work due to the direct effect of the T12 wedge fracture. This fracture has been present since 1999 and has remained stable. She has been able to return to work despite this fracture, albeit with some intermittent and on-going pain symptomology over the years. As discussed above, I believe that Ms Porima's T12 wedge fracture may have contributed to the onset of her more widespread chronic pain symptomology (fibromyalgia syndrome). [10] In a further report to ACC dated 27 January 2010, Dr Strack answered a number of questions that had been put by the respondent's Branch Medical Advisor. I believe it is possible that Ms Porima's T12 fracture may have contributed to her recent problems and on-going difficulties, however, I suspect that the extent to which it has contributed to her current problems is likely to be modest. It is of note that prior to the episode of late March 2009 where she "collapsed" whilst carrying some firewood up steps, Ms Porima had experienced occasional pain in the lower thoracic spine, but was able to cope satisfactorily with day to day activities. She was at work and coping despite this problem, prior to the episode of March 2009. I accept that Ms Porima may experience some ongoing symptoms in relation to the T12 crush fracture, however, the recent MRI has identified no evidence of cord compression, and I suspect that on-going symptoms in relation to this problem are likely to be moderate to mild, rather than severe. I cannot discount these symptoms having partially contributed to her overall symptom complex, however, I am not of the opinion that they are likely to have been the sole cause of her more recent widespread diffuse chronic pain symptomology. Her current problems appears to relate to a specific episode in or about late March 2009. I cannot identify any obvious injury that has occurred in this episode, however, this is what she attributes her problems to. 6 It should be noted that at the hearing of this appeal the Court was advised that the incident was not March 2009 as stated by Dr Strack, but May 2009. [11] Dr Strack's final comment on the matter of the appellant's pain syndrome was as follows: I am of the opinion that, on the balance of probabilities, Ms Porima's current diffuse chronic pain syndrome (fibromyalgia syndrome) is not likely to be primarily as the result of the T12 edge fracture that she sustained in 2009. Whilst I cannot rule out at least some contribution to her current symptom complex from this problem, I believe that it is likely to be minor, compared with the other factors that I have discussed above [12] The next report was that of Dr Marina Sew Hoy, Rheumatologist, who saw and examined the appellant in June 2010, and she stated, inter alia, as follows: The dominant finding is of chronic non specific musculoskeletal pain syndrome. The functional disability is on the basis of pain and secondary effect of deconditioning. There is no anatomic cause or disease inducing the high level of pain. However the alteration of the normal spinal contours by the wedge deformity of T12 will alter the mechanics of the spine. This could be reasonably expected to lead to easy fatigue and aching pain with overuse. Similarly the mechanical changes caused by the altered alignment of the right second and third metacarpals could be reasonably expected to lead to easy fatigue and aching pain with overuse. There was no identifiable psychosocial cause for the chronic pain development other than noting Mrs Porima was working more than the normal full time equivalent in hours in a reasonably physical but not heavy lifting activity and she had significant financial commitment in her business which has subsequently been sold off. There is a past history of severe musculoskeletal pain originally on the basis of major trauma. The prior history of chronic severe pain is correlated with the presence of chronic pain. On the legal balance of probabilities I believe the substantial cause of the chronic pain persistence is unknown. It is not substantially due to the original major trauma or to the May 2009 mild trauma. [13] In March 2011, Mr J Rietveld, Orthopaedic and Spinal Surgeon, saw and examined the appellant at the request of her GP. He had the reports of Dr Strack for reference. He reported, inter alia, as follows: I've read Dr Strack's report and his interpretation of her pain as being a fibromyalgia syndrome. She may well have criteria that would match this, however he also ignores the fact that this lady has significant thoracolumbar compression fracture that started all her symptoms. She is still very tender in this area and is tender over the para spinal muscles. As a result of this her whole biomechanics in her back has altered and she certainly doesn't stand or walk freely. She can't bend forward and touch her toes, she can't hyperextend without 7 being in pain, and as a result of this is overloading her muscles and has got quite a lot of para spinal muscle spasm. I do believe that this lady has got a chronic pain and I do believe that it is secondary to the compression fracture that she has as her symptoms started immediate after this and have remained with her ever since .. .. I do believe that her pain has arisen from the accident she sustained and I do believe trying to push this off as being a fibromyalgia syndrome is ignoring the fact that the compression fracture that she has is what started all her symptoms and has significantly altered her bio-mechanics . .. . [14] A further report was provided by Mr M Fosbender, Orthopaedic Surgeon, and he provided a report dated 4 October 2011. It is to be noted that Mr Fosbender first saw and examined the appellant in June 2000 at the request of her GP, and when she was still experiencing problems with the compression fracture of T12. He further reported that the appellant was still having problems with her back, experiencing pain and being required to use a brace. After reviewing the appellant's history, including the increasing pain after the May 2009 accident event, he stated as follows: I consider that there is a clear connection between this lady's original injury in 1999 in which she sustained the burst fracture of T12, her ongoing pain, and subsequent deterioration after her second injury with her fall on the stairs. Her current condition is a result of chronic pain, further injury and physiological deterioration of normal pain control mechanisms. [15] In his submissions, Mr Murray, Advocate for the appellant, referred to the fact that there was evidence that the appellant had suffered ongoing back pain ever since her 1999 injury, that she had learned to live with that pain condition, and had done her best to carryon a normal life, and that this was therefore not a situation where psychosocial circumstances were a causative factor. Mr Murray also referred to the fact that there was consistency of a causative link being identified by the orthopaedic surgeons, and therefore the appellant's ongoing chronic pain syndrome should be accepted as being as a consequence of her covered physical injuries. [16] Mr Hunt, Counsel for the Respondent, indicated that it was the respondent's position that it cannot be established that the pain syndrome, be it fibromyalgia or otherwise, was caused by the 1999 accident. Counsel refers to the opinion of Dr Strack in that regard and that he is only equivocal as to whether a causal relationship exists. Counsel also refers to the report of Dr Sew Hoy, 8 whose final word was that the substantial cause of the appellant's chronic pain persistence was unknown. [17] To be fair to Counsel for the Respondent, he did acknowledge that there was evidence in this case to support the appellant's argument but that the more persuasive evidence was that the 1999 T12 fracture was not the cause of the chronic pain condition. DECISION [18] In this case the appellant's ongoing medical condition has been variously described as a fibromyalgia syndrome and a chronic pain syndrome, but whatever may be its correct identification, it is a condition which has been the subject of appeals to this Court on a significant number of occasions. [19] In this case it is required to be established by the appellant that her ongoing chronic pain condition was caused by, and is a downstream consequence of, her covered physical injury, which in the appellant's case was the compression fracture of her T12 disc. [20] From the various reports, it seems to be the case that both Dr Strack and Dr Sew Hoy provide a less than positive opinion by reason of the fact that they don't consider that the appellant was experiencing pain as such prior to this event in May 2009, and that things have suddenly only come on, as it were, since that time. [21] That situation, I find, is not the case, and when the reports of other specialists, who have had closer contact with the appellant over the years since her injury in 1999 are considered, it is clear that she has had ongoing pain in her back, but has done her best to not let it overcome her, and she has been able to pursue a working career with odd occasions when her back pain caused her to take a break. [22] It is of course the case that in 2006 Mr Inglis, Orthopaedic Surgeon, who had knowledge of the appellant's condition since the time of her injury, considered that her pain, which she was then experiencing and had been experiencing, might be able to be successfully treated by surgical procedure, so it must be taken as being a fact that in 2006 the appellant was experiencing significant pain, but for her own reasons she elected not to proceed with surgery. 9 [23] The evidence of Mr Fosbender also confirms the appellant's ongoing pain condition, and it was his opinion that the pain problems which he had identified earlier on, and which he noted were identified by Mr Inglis, clearly identified that the appellant had a history of recurrent pain, and which surgical fusion might assist [24] It was both the opinion of Mr Rietveld and Mr Fosbender, two specialist orthopaedic surgeons, that the appellant's ongoing pain condition had arisen from the accident she had sustained in 1999, and when it is the case that on the other side of the coin, as it were, the opinion of Dr Strack is that that condition may well have been a causative factor, but not necessarily the major factor, I find on the balance of probabilities, that the evidence overall supports the causative link. [25] As I earlier noted, this Court has been required to consider the issue of chronic pain syndromes on a number of occasions, and this case, I find, is a clear case where there was a significant physical injury and where the evidence identifies that there has been an ongoing pain condition and which, unfortunately for the appellant, has got worse some ten years after the accident event. [26] Accordingly therefore, I find that the respondent was wrong to decline to extend cover to the appellant for her ongoing chronic pain syndrome, and its decision to that effect is quashed and replaced by this Court's decision that the appellant does have cover for that medical condition. [27] The appellant being successful | allow costs in the sum of $2,500 to the appellant, together with any qualifying disbursements. DATED this 21st day of March 2012 M J Beattie District Court Judge