Ngawati v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 42/ 9 6 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 48/ 94/ 0401 section 91 of the Act BETWEEN DAVID MARTIN NGAWATI of Kawakawa Appellant (Appeal No. DCA 11/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 24th day of April 1996 APPEARANCES D R James for appellant A D Fawcett for respondent DECISION OF JUDGE A W MIDDLETON After I had heard submissions on this appeal, I issued a memorandum on 10 May 1995 directing that a further medical opinion be obtained to enable me to make a decision. The appellant has now been examined by Mr G Laws, an orthopaedic surgeon, whose report is now on the file and I have received further submissions from Mr James and from Mr T P Cleary on behalf of the respondent. The issue in this appeal is whether the appellant has cover under the Act in respect of personal injury which occurred on 1 July 1993. The appellant lodged a claim with the respondent on 29 July 1993 in which he stated to have suffered lumbar strain as a result of lifting fence posts onto a truck 2 on 1 July 1993. The respondent obtained a report from Mr D Lyon, an orthopaedic surgeon, and that report which is dated 21 September 1993 states: "I saw him on 19 August 1993 when he related a long history of recurrent low back problems. His last episode occurred on 1- July 1993 while lifting fence posts. He felt sudden pain in his low back and this settled over the subsequent weeks to the extent that he was not complaining of much pain when I saw him. Examination findings show that he had quite marked restriction of lumbar spine movement with only 2cm of forward flexion (normal range greater than 5cm). He also had marked restriction in extension but no neurological signs in his legs. X-ray examination at that time showed that he had multiple level degenerative changes in his lumbar spine and in particular had marked narrowing of his L5- S1 disc space. The diagnosis is one of a lumbar spondylosis causing intermittent episodes of lumbar back pain. I felt the treatment should be non-operative for this condition and should consist of mobilisation as symptoms permit, physiotherapy and anti- inflammatory medication as required. I felt that his work capabilities were dependant (sic) on the level of his back pain at the time. However, given that heavy manual work precipitates his back pain I have suggested to avoid these episodes he would be better to do only light to moderate work if possible. Unfortunately it is impossible to predict the approximate recovery period as I feel that his condition is permanent and further episodes of back pain are likely to be precipitated particularly by heavy manual work." On 26 January 1994, the respondent notified the appellant that his claim for cover was declined because it considered that his pre-existing condition of lumbar spondylosis was the cause of his problems. The appellant applied for a review of that decision. When that application was made the respondent revisited the appellant's earlier file in respect of an accident he had suffered on 11 April 1988 which had caused him problems with his lower back. A report from M R Baylis of 22 June 1989 states: 'I saw Mr David Ngawati, aged 44, on the 22nd of June of 1989. On the 11th of April of 1988, he experienced sudden pain in the lower back passing down the right leg when lifting a strainer post at work as a fencer. I saw him about two months later and he told me that the pain had settled to some extent and that he was getting occasional tingling in the right leg but no back pain. When examined, he had good back movements and no neurological signs and xrays demonstrated diminution of the lumbar sacral disc space. I advised him that 3 his job as a fencer was not appropriate for a man who had this type of back problem. Mr Ngawati then started to drive machinery but found that the vaibrations (sic) caused his back to ache. I saw him next in February of this year when he had a recurrence of low back pain, this time passing into the left leg. There was no specific further injury. On this occasion, there was impairment of straight leg raising and loss of back movements. However, as previously, there was no neurological signs. Present Condition Mr Ngawati has not been able to resume work. He has not been able to undertake fencing and in any event, has been advised not to. He continues to experience aching in the lower back and this is brought on by-bending, attempts at lifting, prolonged sitting and standing. He is able to drive but only for about an hour at a time. He has no specific leisure activities but finds that he cannot stand to watch his children playing sport. Examination There is significant loss of forward flexion but now no limitation of straight leg raising. There are no localising neurological signs. Xray Examination Xrays taken today show gross diminution of the lumbar sacral disc space. As well as this, there are degenerative changes throughout the lumbar spine. Opinion and Prognosis This man is currently fit for selected work, that is, no prolonged bending or heavy lifting but in addition, is not able to drive machinery because of the vibration involved. I cannot see that in improvement in his condition will occur. I can not (sic) think that any further treatment will be of benefit to him and he has a permanent disability. In my opinion, his disability amounts to 15% of total with commensurate losses under Section 79." The review officer considered the submission that the accident of 11 April 1988 was the cause of the appellant's condition and that he had suffered ongoing problems from that incident and that the incapacity which commenced on 1 July 1993 was merely an aggravation of the 1988 claim. The review officer concluded that the appellant's continued back pain was due to the degeneration of his spine and was not caused by the lifting incident on 1 July 1993. He also noted that while there may be entitlement as a result of the respondent having accepted that the appellant had cover following the incident of 11 April 1988 no decision had been made by the respondent on that issue. The review officer held that the 4 respondent's primary decision applied merely to the claim that the appellant had suffered personal injury by reason of the lifting incident on 1 July 1993. The review officer therefore declined the application. As a result of the memorandum which I issued. I have now received Mr Laws' report of 5 December 1995 which states: "I reviewed Mr Ngawati for a second opinion on the 5th December. The following additional information was available: Letters from Mr D Lyon - 6.11.95, 15.4.94 and 21.9.93 Letters form A Fawcett - 28.7.95 and 28.7.95 District Court Memorandum - 10.5.95 Medical Report from Mr M Baylis - 22.6.89 X-rays from bay of Islands Hospital HISTORY: The history is reasonably well documented in the majority of the medical reports. Basically Mr Ngawati has had a long history of low back pain. In 1989 a medical report was performed for permanent disability by Mr Baylis. He stated that on the basis of an injury occurring approximately a year beforehand but Mr Ngawati was 15% permanently disabled and the ACC accepted that. From then until 1994 Mr Ngawati said that he was basically an ACC benificiary (sic) for most of the time. However, on numerous occasions he was granted a full ability to return to work by his General Practitioner and he returned to his fencing job. This was apparently with the knowledge of his GP but must be admitted that it is contrary to the advice of Mr Baylis in his medical report. However after some time back at work he would find that his back pain recurred usually after some heavy lifting such as a fence post, as was mentioned in Mr Lyon's report. Apparently at the end of 1994 the ACC declined further cover for Mr Ngawati and he is now on the Sickness Benefit. CURRENT SITUATION: His currently pain is in the same place as that for which he received the 15% disability assessment from Mr Baylis. Namely it is in the lower right part of the back. When it is particularly bad it radiates down the back of the leg as far as the knee. It is worse with sitting for any period or standing unsupported. It is worsened by lifting, bending and vibrations. It is made better by not performing these activities and is improved by Voltaren which he takes once per week. He has no pain in the left leg and no bowel or bladder problems. During the winter months he uses a corset which helps the situation and has recently concluded a course of physiotherapy at the Bay of Islands Hospital which has also helped. PHYSICAL EXAMINATION: He has loss of the normal lumbar lordosis. He is tender over the lower right lumbar spine. His movements are: Forward flexion to mid-shin extension O degrees. Lateral bend, right equals left equals mid-thigh. Rotation right equals left equals 25% of normal. The lowers (sic) limbs, I thought he had normal power and normal sensation. Both knee reflexes were decreased but his ankle jerks were present and his plantars were 5 downgoing. Straight leg raising - left equals 80 degrees, right equals 60 degrees, negative sciatic stretch tests. X-RAYS: X-rays and their reports were available from 5.5.88 until 6.11.95. Those in 1988 showed a severely narrowed L5/S1 disc and degenerative changes in the upper spine as mentioned in Mr Baylis's medical report. The latest x-rays show progression of this process with degenerative changes noted throughout the lumbar spine. OPINION: Mr Middleton, the District Court Judge, was basically unable to determine whether the degenerative change as evidenced by Mr Baylis's report in 1989 and his 15% permanent disability. Since then Mr Ngawati has had extended episodes off work because of back pain. He is quite clear that all the episodes of back pain in his current situation are for pain felt in exactly the same area and of the same nature for which the permanent disability payment was granted in 1989. Whilst Mr Baylis's report recommended that he should not return to fencing Mr Ngawati states that on each occasion he has returned with the consent of his General Practitioner and that this has been confirmed by ACC C15's. None of these were available to me today and would need to be confirmed. If they are confirmed, then it would appear reasonable to state that he has not been returning to work against medical advice. To attempt to answer Mr Middleton's question. I do not believe that the degree of degeneration seen in the back x-rays is simply a progressive condition coupled with the ageing process. It may be the result of years of heavy work related activity as a fencer but he has clearly had several episodes of specific injury occurring on top of the degenerative process which have exacerbated his symptoms and required him to have time off work and that the ACC appear to have accepted these claims in the past. I hope this report answers Mr Middleton's questions. I should point out that I am a general Orthopaedic Surgeon with particular interest in hand surgery and whilst I treat back pain and regularly review people with it I do not perform back surgery, in distinction to Mr Lyon who does." Mr James submitted that there has been no medical opinion as to whether or not the appellant's employment as a fencer has contributed to the degenerative changes. He submitted that the review officer erred in holding that the lifting incident on 1 July 1993 merely aggravated the degenerative condition. He submitted that there was no medical evidence to support that finding. He submitted further that as a result of Mr Laws' opinion there was sufficient evidence to support the claim that his injury arose from the accident in July 1993. He also raised as an alternative that the appellant had suffered a work related injury. 6 Mr Cleary submitted that Mr Laws' opinion should be read with some caution, particularly in the light of his statement that although he is an orthopaedic surgeon, his particular expertise is in hand surgery and not back surgery. However, he submitted that Mr Laws' finding. confirmed the existence of the spondylosis and he did not support the appellant's submission that his current incapacity is as a result of personal injury caused by an accident or gradual process through work. Mr Cleary submitted that the medical evidence supports the respondent's finding that the appellant's inability to work is by reason of disease or the ageing process rather than as a result of an accident. In the 27th Edition of Dorland's Medical Dictionary spondylosis is defined as "dissolution of vertebrae by; a condition marked by platyspondylitisia of the vertebral arch, and separation of the pars interarticularis". That would appear to confirm Mr Baylis's description in his report of 22 June 1989 in which he stated: "X-rays demonstrated diminution of the lumbar sacral disc space." Mr Lyon's diagnosis was "lumbar spondylosis causing intermittent episodes of lumbar back pain". As I have said, the issue is whether the respondent's primary decision that the appellant's inability to work as a result of the incident in July 1993 was the result of an accident or the result of his pre-existing underlying degenerative condition. This means that the issue has to be decided under the provisions of the 1992 Act and the starting point is s.37 which defines the test of incapacity as: "37. Test of incapacity - For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred or, where any of sections 44, 45, 46, or 49 of this Act applies, any other employment for which the person is qualified by reason of experience, education, or training, or any combination them." Section 10 of the Act provides general exclusion from cover and states: "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 (9) 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 declare that - 7 (a) Personal injury caused wholly or substantially by the ageing process; and (b ) Personal injury to teeth that is caused by the natural use of those teeth - is not covered by this Act." I agree with Mr Cleary's submission that the words of s.10 can be contrasted with the lower threshold in terms of cover provided in s.2 of the Accident Compensation Act 1982 in which the threshold is "caused exclusively by disease". I agree with Mr Cleary's submission that if the appellant suffers from lumbar spondylosis caused substantially by other than from work or accident, then cover must be declined. It appears to me on reading the medical reports that all the specialists agree that the appellant suffers from lumbar spondylosis and that it has been a progressive degeneration of his spine. Mr Baylis, as early as 1989, reported "degenerative changes throughout the lumbar spine" and did not consider that there was likely to be any improvement in his condition. Inspite of that and subsequent to that report, the appellant has been permitted by his general practitioner to return to fencing work. I agree with Mr Cleary's submission that the incident in July 1993 merely aggravated the already pre-existing condition and it cannot be said that that accident was the substantial cause of his inability to work. In my view, the condition of his back has been a gradual process and it is that process which is substantially responsible for his inability to work. Accordingly the appeal must be dismissed. DATED at WELLINGTON this / 7 day offune 1996 Arounadula A W Middleton District Court Judge de11-94.doc(rd)