Gillie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 242 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN DEREK BRUCE GILLIE DCA 272/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of November 1997 APPEARANCES: Mr M Shepherd for appellant Mr D G Clarke for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether there exists a sufficient causal connection between the injury sustained by the appellant on the 12th December 1994 and the appellant's ongoing symptoms which would entitle the appellant to continuing compensation under the Act. 2 Background Facts The appellant is now aged 60 and was an electrician by occupation. On the 10th of December 1994, whilst at work, he slipped on a mat and fell on his left side. He experienced pain to his lower lumbar region and upper buttock. As a consequence of this injury he was certified as being unfit for work and commenced receiving weekly compensation. The appellant's previous medical history had included an operation on his lumbar spine in 1979 for intervertebral disc prolapse. The appellant received physiotherapy treatment following the December 1994 accident and did become able to undertake light work although he was in receipt of weekly compensation until January 1996. By letter dated 22nd January 1996 the Corporation advised the appellant that it was ceasing weekly compensation on the 22nd of February 1996 and that the basis for that decision was the advice it had received that there was no relationship between the 1994 accident and the back problems which he was continuing to experience. It was the Corporation's view that the ongoing incapacity he was suffering was the natural progression of his underlying pre- existing osteoarthritis. The Corporation's decision was made in reliance on the advice it had received from Mr Donald Jones an orthopaedic surgeon. At the hearing of the review of that decision the Review Officer had, in addition to the various medical reports of Mr Jones, a report submitted by the appellant from Professor Bill Glass an occupational medicine specialist. 3 In his decision the Review Officer considered that the report of Professor Glass did not contradict the findings of Mr Jones and it was the Review Officer's decision that whilst there was no doubt that the appellant continued to experience problems with his back the Review Officer could not be persuaded by the medical evidence that those problems were related to his fall in December 1994. For the purposes of this appeal the appellant sought and was granted leave to produce further evidence in the form of a report from Professor Hugh Burry a Specialist Rheumatologist. Other than Professor Burry's report the medical evidence for the purposes of this appeal was that which was produced to the review hearing. The positions of the appellant and the respondent respectively are that the appellant contends that he is still suffering from the effects of the accident thereby retaining cover and entitlements pursuant to s.8 of the Act, whereas the respondent contends that the provisions of s.10 of the Act now apply and that the injury from which he suffers is not injury by accident under s.8 but injury caused wholly or substantially by gradual process disease or infection and caused wholly or substantially by the ageing process and thereby excluded from cover pursuant to s.10 of the Act. It is accepted by the appellant that for the purposes of appeal the onus is on him to establish on the balance of probabilties that there is a causal link between his present symptoms and the injury sustained in his accident of 12 December 1994. It is further acknowledged by the parties that in large measure the issue to be determined is one which must be determined by an analysis of the medical evidence and I now proceed to review that evidence. 4 Medical Evidence The first report from Mr Jones is dated the 22nd of December 1994 that is, ten days after the accident. The appellant had been referred to Mr Jones by his GP Dr Dunlop. The relevant part of his report is as follows: "He currently has pain and aching with possibly some altered sensation down the anterior aspect of his right thigh and knee. He has some diffuse aching down the lateral calf, walks essentially on the front of his foot with a flexed hip knee gait, but is not experiencing a lot of acute back pain currently. He does not exhibit any vertebral signs, he has a negative femoral nerve stretch test. His knee jerk I would agree is impaired, but his right ankle jerk appeared normal. Check xrays today at St George's have confirmed that he had a previous right L5 hemi laminectomy, he is now however developing an early degenerative spondylolistehsis 4 on 5 and I suspect he is experiencing pain in the L5 ? L4 distribution due to compromise of the nerve roots at that level. He has been on Voltaren for quite some time for his generalised osteoarthritis tendency. He is not sure whether this is givng him any benefit. I have quite empirically changed this today to Naprosyn to see whether this will modify his symptoms. He is just going to rest up over the next two to three weeks, I will review him when return in January if he is no better and will certainly arrange a Ct scan at that point if necessary." 5 In January 1995 a CT scan was carried out and a further report was issued by Mr Jones to the appellant's GP on the 27th of January 1995, that report stating as follows: "The Ct scan on the above performed at St George's today has not shown any problem within the spinal canal, the right L4-5 facet is quite arthritic and I suspect is responsible for most of the symptoms that he is experiencing into the buttock and right thigh and leg. Tony Young has commented on a very small possible lateral L3-4 disc prolapse, but I really do not think that this is of significance, I would not have regarded it as abnormal myself and his symptoms don't really fit that picture. Realistically all that can be offered is an ongoing trial of non steroidal anti inflammatories and hoping that his symptoms will quietly settle with time. He is obviously in conflict with his employer over his frat week's wages and I suspect will be a major problem in rehabilitation. At this stage there is little else that I can offer in the way of help, I have merely discussed his problem with him and given him his xrays today. Hopefully with time he will gradually settle." On the 28th of April 1995 the appellant's case manager wrote to Mr Jones requesting his opinion as to whether the development of degenerative spondylolisthesis was due to the previous laminectomy or whether it was due to his generalised osteoarthritis tendency. His opinion was also sought as to whether, if the appellant had a normal spine would he have expected his back pain to have settled by this point, that is four months after the accident. Finally Mr Jones's opinion was sought on the Corporation's ongoing responsibility for the appellant's back problems. 6 By letter of 3rd May 1995 Mr Jones responded to that letter is as follow: "In reply to your letter of 28th April 1995, in answer to your questions: 1. The development of the degenerative spondylolisthesis is probably unrelated to his previous laminectomy as he does have a generalised osteoarthritis tendency and his Ct scan has not shown any problems at the lumbo-sacral disc. If Mr Gillie had had a normal spine he would have settled within this time frame from the recent fall which he had had, but unfortunately the situation is that he has an abnormal spine which he has injured in a fall. I expect his symptoms to be chronic, I suspect that he will have increasing difficulty coping with physical work which demands him to work in confined spaces, awkward situations, lifting and twisting. Unfortunately it is not possible to separate clinically his arthritic symptoms and his injury related one. Realistically the Corporation has an ongoing responsibility to this man." On the 28th of November 1995 the appellant's case manager again wrote to Mr Jones indicating that at that point the Corporation was in dispute with the appellant's employer over the ongoing responsibility for the appellant's claim costs and the case manager requested as follows: "To help me to resolve this dispute could I pose the following question to you - at this point in time could Mr Gillie's partial incapacity for work be seen as being due to the natural progression of the underlying and pre-existing generalised osteo-arthritic tendency rather than being due to the effects of the December 1994 back strain?" 7 By letter dated 29 November 1995 Mr Jones replied as follows: "In reply to your letter of 28 November the injury that this man had to his back was a low energy injury. There was on obvious structural deficiency or injury seen on his Ct scan. I think one must therefore accept at this stage that his ongoing incapacity is the natural progression of his underlying pre-existing osteo- arthritis." It was that letter which caused the respondent to issue its decision letter cancelling compensation for the appellant. The report of Professor Glass is dated the 16th of May 1996 and follows his examination of the appellant as well as consideration of Mr Jones's reports and the various X-rays and CT scan which had been taken. His report on these is as follows: "RADIOLOGY 24.04.1990 CERVICAL SPINE, ST GEORGES X-RAY This showed narrowing of C5/6 and C6/7 with osteophytic lipping and slight narrowing of the intervertebral foramina C6/7 on both sides due to postero-lateral osteophytes. 06.04.1993 LUMBAR SPINE, ST GEORGES X-RAY This showed moderately severe degenerative arthritis affecting facet joints of L4/5 and L5/S1 with increased lumbar lordosis, discs normal, marginal osteophytes L5/S1. L3 vertebral body is a little wedged on the right. L5 spinous process and left lamina removed. OO 22.12.1994 LUMBAR SPINE, ST GEORGES X-RAY Not much change compared with 1993 x-ray. Moderate degenerative changes in the posterior facet joints in the lower lumbar region. There is a little narrowing of all the upper and mid lumbar disc spaces and some forward shift of L4 and L5. There is a left sided scoliosis. 27.01.1995 CT SCAN LUMBAR SPINE 5mm slices showed a small lateral disc prolapse on the right. Severe degenerative changes facet joints L4/5." Then Professor Glass reports on the appellant's current state as follows: "At his visit to me, 06.05.1996, Mr Gillie was clearly still in pain, he had to get up and walk around from time to time. His back pain is there at a low level all the time. He has not had a full night's sleep since the accident. Change of movement relieves pain a little. He does not wake up stiff in the morning but can only get out of bed on his right side. The pain is localised mainly to the right lower back but with some lower left lateral leg pain which comes and goes together with localised pain in his left big toe and on the solds of both feet." His report of his examination was as follows: "There are lower lumbar and right anterior scars. He had a left lower back scoliosis and marked lordosis. He is tender over the lower lumbar vertebrae. There is limited flexion at the lumbar region, much reduced extension and limited lateral flexion and torsion. Straight leg raising bilateral to 70 degrees before back pain, knee jerks present and equal but diminished ankle jerks, sensory changes in the right thigh anteriorly are not clear cut. Pain over L4 L5 distribution is not reflected in altered sensory changes." 9 In conclusion Professor Glass states: "Mr Gillie has been an electrician for most of his working life - over 30 years. The nature of his work involved bending, extending and lateral flexion of the spine, particularly associated with working in awkward and confined space situations. The latter forced Mr Gillie to work in a constrained static tension posture. Mr Gillie has lower lumbar arthritic changes involving his facet joints and vertebral bodies of the 4th and 5th lumbar vertebra together with some narrowing of the discs and a lateral disc protrusion. The degenerative state of Mr Gillie's lumbar spine is well accounted for as a consequence of the nature of his work and of his first back injury. the injuries occurred at work, the last injury occurred to a man with an already damaged lumbar spine. As a consequence he has been left with ongoing symptoms and disability. These have been explicitly dealt with by Mr Jones in answers to ACC questions: . .. Given the work history, the work injury history, the x-ray and CT reports and the orthopaedic opinion, it is difficult to understand the decision to cease ERC. The 'egg shell' principle applies from the legal viewpoint but in addition it is clear that the current state of his lumbar spine is a consequence of his work and work injuries." Finally there is the report of Professor Burry dated the 12th of June 1997. He made a full examination of the appellant and then reported as follows: 10 "I have read carefully the reports provided on various occasions by Mr D Jones and also by Professor Glass, together with the decision of the review officer, dated 27 May 1996. It is clear from the evidence that Mr Gillie had impairment of his lumbar spine by reason of previous surgery when he suffered his accident on December 1994 and Mr Jones has drawn attention to the degenerative changes also present at the L4-5 level in xrays taken in 1994. It is common for persons who have had surgical procedures at one level to develop signs of wear in the adjacent intervertebral joints because of extra movement taking place at this level to compensate for the impaired neighbouring joint level. It is significant that prior to the incident in December 1994 Mr Gillie was not experiencing symptoms from this acknowledged impaired vertebral segment. Studies of workers and their xrays have revealed a very low rate of concordance between xray changes and the presence or absence of symptoms. Therefore, there is reason to suppose that Mr Gillie might have continued to experience freedom from back pain as he had between 1979 and 1994 had he not subjected his spine to the sudden and totally unexpected strain when he slipped on the mat. Although as Mr Jones has pointed out, this was what might be described as a low impact injury, it is the unexpectedness of such an event which tends to catch the muscles which provide for the stability of the spine totally off guard, so that such an event may well have consequences which seem entirely out of proportion to the apparent severity of the incident. As is unfortunately commonly the case, no physical functional restoration programme was offered for some considerable time until Mr Gillie attended Mr Brian Mckenzie, following which he improved substantially so that he was able to return to light duties. Since that time Mr Gillies has remained fit for light duties but has had difficulty obtaining this type of work in his field. Nevertheless he has an excellent work ethic and has continued to work whenever possible. This is all the more remarkable when one taken into consideration the presence of substantial degenerative change in both knees following his previous surgery. It is strange that the condition of his knee joints has not been mentioned in previous medical reports as the problem that he has with flexion of the knees makes him more reliant on spinal flexion to work in awkward positions near the 11 floor. These postural problems would undoubtedly have contributed to the slowness of his recovery after the accident in 1994. Finally, in my opinion, Mr Jones' reference to a generalised osteoarthritis tendency is most misleading. He does not have a generalised osteoarthritis tendency. He has the long term effects of surgical procedures on three sites (both knees and lower lumbar spine) and has the expected changes in his spine which are usually present in persons of middle age and which are commonly not accompanied by any symptoms whatsoever. In summary, in my opinion, Mr Gillie was still suffering from reduced work capacity at the time of the review in May 1996 and is entitled to compensation. It is a credit to him that he has managed to return to work now, despite the combined difficulties of his back and his knees." Decision As was observed by counsel in their submissions, the issue to be determined is wholly a medical one with the only legal issue being a consideration of where that evidence ends up having regard to the standard of proof required to be established by the appellant. All three specialists agree that the appellant suffers from a pre-existing underlying degenerative condition. However they seem to disagree on the origin of that condition with Mr Jones stating that the appellant has a general osteoarthritis tendency, Professor Glass considers it to be as a consequence of the nature of his work and of his first back injury, they being injuries associated with his work conditions, and finally Professor Burry specifically discounts Mr Jones's diagnosis of generalised osteoarthritis tendency and states that in his opinion he has the long term effects of surgical procedures together with the expected changes in his spine which are usually present in persons of middle age. 12 At the time Professor Burry carried out his examination of the appellant and made his report he had the benefit of all previous medical reports and data and in the course of his opinion he was able to draw upon his considerable experience in this field. I consider it significant when he gives his opinion that despite what might be described as a low impact injury "it is the unexpectedness of such an event which tends to catch the muscles which provide for the stability of the spine totally off guard, so that such an event may well have consequences which seem entirely out of proportion to the apparent severity of the incident." It is clear that Mr Jones based his opinion in his letter of 29 November 1995 on the fact that the appellant had purportedly suffered a low impact injury and that giving him the extra time which he believed was necessary for that injury to heal because of the pre-existing scoliosis he opined that after such a time, the appellant's continuing problem could only be the assertion of pre-existing conditions. It is noteworthy that in giving his opinion in November 1995 Mr Jones did not re- examine the appellant nor carry out any further tests. He was, as I assess, simply going by the text book method. Furthermore, I consider he was answering a loaded question and one which he was told was required to resolve an experience rating dispute. Certainly not one to do with the appellant's ongoing eligibility for compensation. In contrast to this both Professor Glass and Professor Burry have examined the appellant well after Mr Jones has given his opinion and whilst they do not come out strictly in unison with their opinion, each has associated the appellant's present disability with the injury of December 1994. 13 In the case of Professor Glass he states "the injuries occurred at work, the last injury occurred to a man with an already damaged lumbar spine. As a consequence he has been left with ongoing symptoms and disability." In the case of Professor Burry he considers that the present symptoms are a continuation of the instability which the impact injury caused to the spine and that his pre-existing condition was affected, and as I interpret is still affected, by the impact injury and that it was the accident in December 1994 which caused him to begin experiencing symptoms from his impaired invertebral joints. Having considered the medical evidence I find that on balance this is a situation where the egg shell skull principle applies. This is certainly the opinion expressly so stated by Professor Glass and the opinion of Professor Burry is in effect an expression of the egg shell skull principle. Counsel for the appellant has referred me to the decision of Cronin (14/97) where his Honour Judge Ongley had a similar issue to determine as in this present case and the three experts were again Mr Jones, Professor Glass and Professor Burry. In the course of his report in that case Professor Burry again disagreed with Mr Jones's assertion that the claimant's condition and incapacity related to degeneration of the spine. He stated that such an assertion "can be rejected as inaccurate". In that decision the learned Judge preferred the opinion of Professor Burry to that of Mr Jones. This court is not aware of the experience or expertise of Mr Jones save that his letterhead describes him as being "FRCS (Eng) FRACS" whereas for the purposes of this appeal the full curriculum vitae of Professor Burry was produced. To say that it is formidable is an understatement. I take full notice that he is an acknowledged expert in this field. 14 I prefaced this decision by stating that it was a medical question. In other places such questions may not in fact be left to a Judge to decide but rather to a medical referee. In this case I find that in large measure Professor Burry has been such a person. I find that his opinion carries the day and accordingly the decision of the Review Officer is revoked. DATED at WELLINGTON this 25 th day of November 1997 M J Beattie District Court Judge Gillie.doc KD