Quaile-Coleman v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 64/2005 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DIANNE QUAILE-COLEMAN of Auckland Appellant (Appeal No. AI 167/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 1 February 2005 APPEARANCES/COUNSEL N. Ormsby for appellant D. Tui for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD [1] The issue is a decision by the Accident Compensation Corporation dated 23 September 2002 declining the appellant’s claim to an entitlement for weekly compensation. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2005/064- 2005.doc AE Factual Background [2] On 13 April 1992 Mrs Quaile-Coleman injured herself when she was lifting a heavy man from his chair to the bed in a small room while employed as a nursing aid at the Milford Rest Home. As a consequence Mrs Quaile-Coleman sprained her neck, upper spine as well as lower back and developed chronic neck and back pain. ACC accepted Mrs Quaile-Coleman's claim and she was on ACC from 1992 until 1996. [3] The appellant attended her general practitioner on 21 April 1992, one week after the incident, and she was certified unfit for any type of work for 10 days. [4] Subsequently, the appellant resigned from her job and commenced receiving weekly compensation. X-rays were taken of the appellant’s cervical spine on 28 April 1992 which did not demonstrate any significant pathology. [5] Later in 1992 the appellant was referred for rehabilitation assistance. In a report of 10 December 1993 Mr McAuslan noted that the appellant had widespread pain and concluded that the appellant had a defuse dysfunction of the spine. He assessed her overall disability at 30%. [6] A report from Pain Management dated 28 February 1995 described the appellant as suffering from a chronic pain syndrome, which at that time was resolving itself. On 23 November 1995 the appellant sustained a further soft tissue injury to the elbow while she was working at Milford Fisheries. [7] In June 1996 the appellant contacted the Corporation from Australia and advised that she had become a permanent resident of that country. Weekly compensation payments were ceased accordingly, and the file was closed. [8] Several years later, on 21 February 2002, the appellant presented to the Corporation with a medical certificate and requested weekly compensation. The appellant provided a medical report from Dr Randell dated 12 February 2002. This advised that the appellant had been attending Dr Randell’s clinic in Australia since 1996 with a chronic pain condition affecting her lower back. 064-2005 2 [9] The appellant’s file was later reviewed by the Branch Medical Advisor, and the Corporation issued a decision on 11 April 2002 declining the appellant’s weekly compensation on the basis that there was no clinical evidence to show an incapacity for work. The letter also noted that the appellant was not an earner at the date of her subsequent incapacity. [10] The appellant subsequently supplied a backdated medical certificate dated 23 May 2002 which certified her as unfit for work from 18 June 1996 to 21 February 2002. The appellant then lodged an application for review of the Corporation’s decision and provided a further report from Dr Randell (dated 24 May 2002). [11] The appellant also sought independent advice from Mr Hancock, pain specialist who provided a report on 7 June 2002 in which he opined that the appellant was incapacitated and had remained so since the accident in 1992. [12] Mr Perry also provided a report on behalf of the appellant dated 29 July 2002. He noted that there was no significant change in the appellant’s condition as between that date and a clinical examination of the appellant undertaken in November 1992. Accordingly, he indicated that the appellant continued to be incapacitated due to an accident on 13 April 1992. [13] In August 2002 the Corporation revoked its earlier decision declining weekly compensation, and referred the appellant for an assessment with Mr Otto, orthopaedic surgeon. Mr Otto reported on 13 August 2002 after clinically examining the appellant, and obtaining updated x-rays. He concluded that the cause of the appellant’s disability was an underlying congenital anomaly in the spine, in the form of thoracic scoliosis, and that her incapacity more actively reflected her underlying congenital anomaly, rather than the effects of any injury per se. [14] In a further report dated 20 August 2002, Mr Otto stated that the incapacity suffered by the appellant:- “is based exclusively on the structural deformity in her spine which even without a lifting injury, were likely to produce symptoms on account of the alignment abnormalities in the spine.” [15] A final report from Mr Otto of 13 September 2002 advised that the appellant’s injury could have been expected to resolve itself in a period of 6 to 8 weeks. 064-2005 3 [16] By way of a decision dated 23 September 2002 the Corporation advised the appellant that “on the basis of Mr Otto’s reports, ACC is not satisfied that your problems, since at least 1996, have been caused by the accident in April 1992” and declined backdated and ongoing weekly compensation. [17] An application for review of that decision was filed thereafter. [18] The review was heard on 19 March 2003 before reviewer, Ms Clark. Ms Clark issued a decision on 2 April 2003 upholding the Corporation’s decision. The Review Hearing [19] The reviewer concluded by saying: “Crucial to this case is proof of the causal connection between the injury suffered in the accident and the symptoms suffered by the insured at the time when ACC reviews his or her compensation entitlements. Turning to the medical evidence, it is evident that Mr Otto is of the opinion that the underlying congenital abnormality (scoliosis) was the exclusive cause of Mrs Quaile-Coleman’s ongoing problems from June 1996 to 2002. He also wrote “that with increasing years and additional wear in the curve and the compensatory areas adjacent to the curve, there would have been a gradual process of increased symptoms exacerbated by lifting and physical activities”. On the other hand, as submitted by Ms Graham, Dr Perry, Mr McAuslan and Dr Hancock are all of the opinion that Mrs Quaile-Coleman was still incapacitated due to the accident of 1992. However, as submitted by Ms Silcock, none of these specialists have diagnosed an injury. In 1992 only a soft tissue injury of thoraco-lumbar strain was diagnosed, and since that accident no specialists have identified the injury which continues to be the ongoing cause of Mrs Quaile-Coleman’s ongoing symptoms. It is settled law that where an accident aggravates or worsens an underlying condition such as to render symptomatic a condition which is previously asymptomatic, but is not caused by the accident, the pre-exiting condition does not attract cover. (Gazzard (313/01) and Kingi (33/03)). In conclusion, a direct causal nexus is required and although all the specialists involved, including Mr Otto are agreed that Mrs Quaile-Coleman has been unable to return to her pre-accident employment since the accident in 1992, this does not establish that her incapacity is due to the injury which was suffered in that accident. Accordingly, I find that Mrs Quaile-Coleman’s present symptoms are substantially due to a pre-existing condition, and her 1992 injury is no longer causative of her present symptoms. Having made this finding, I confirm ACC’s decision of 23 September 2002.” 064-2005 4 [20] Since that time the appellant has filed additional evidence comprising of reports from Mr McAuslan, orthopaedic surgeon dated 20 October 2004, and Graham Perry dated 1 March 2004. Legislation and Legal Principles [21] Section 117 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”) reads as follows:- “117. Corporation may suspend, cancel, or decline entitlements— (1) 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. (2) The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date. (3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to— (a) comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan. (4) This section does not limit or affect any other power of the Corporation to decline or end an entitlement. [22] Section 2 of the Accident Compensation Act 1982 provides: “Personal injury by accident— (a) Includes— (i) The physical and mental consequences of any such injury or of the accident: (ii) Medical, surgical, dental, or first aid misadventure: (iii) Incapacity resulting from an occupational disease or industrial deafness to the extent that cover extends in respect of the disease or industrial deafness under sections 28 and 29 of this Act: (iv) Actual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission of any other person which is within the description of any of the offences specified in sections 128, 132, and 201 of the Crimes Act 1961, irrespective of whether 064-2005 5 or not any person is charged with the offence and notwithstanding that the offender was legally incapable of forming a criminal intent: (b) Except as provided in the last preceding paragraph, does not include— (i) Damage to the body or mind caused by a cardio-vascular or cerebro-vascular episode unless the episode is the result of effort, strain, or stress that is abnormal, excessive, or unusual for the person suffering it, and the effort, strain, or stress arises out of and in the course of the employment of that person: (ii) Damage to the body or mind caused exclusively by disease, infection, or the ageing process:” [23] Section 73(1) of the Act provides for the suspension or cancellation of compensation. This section specifically provides that if the respondent was not satisfied on the basis of the information in its possession that a person is entitled to continue to receive compensation then the respondent shall suspend or cancel that compensation. [24] I set out hereunder some of the principles that have developed around a construction these sections: [i] The onus is upon the appellant to show that she is entitled to continue receiving compensation. This onus is satisfied on a probability basis. [ii] The first step is a causal issue: an appellant to have a continuing entitlement for weekly compensation has to satisfy the respondent on the balance of probabilities that the present current incapacity is substantially caused by the original injury, for which cover was granted. This issue will generally involve a consideration of the type of injury suffered, the initial x-rays, and medical reports evaluating the present symptoms against what were the reasonable consequences to be expected of the original injury [iii] That the present injury giving rise to entitlements is not 'exclusively' caused by the ageing process. The onus of proof is upon the appellant upon a balance of probabilities. What is necessary is a critical analytical assessment of the original injury in the light of the medical reports. This step, while intertwined in many cases with the causation step, is 064-2005 6 nevertheless an independent step and has to be satisfied by a claimant once the first issue of causation is hurdled. In this respect the 1982 legislation has to be contrasted with the later legislation, where the word 'exclusively' was substituted by the lesser test of "wholly or substantially". This distinction was referred to in Gray v ACC [2003] NZAR 289 by France J. That is upon the issue of ageing, the disqualifying factor of ageing under the 1982 Act must be the exclusive cause of the present symptoms. [25] In assisting in the evaluation of this first step propositions were stated in Fowlie v Accident Rehabilitation and Compensation Insurance Corporation (AP 50/00, Hansen J, 4 October 2000). In Fowlie Hansen J at p.8 expressly approved the dictum of Beattie DCJ, in Finnemore v ARCIC (Napier, District Court, Decision No. 262/98, DCA 312/98, 9 December 1998) at p.9 where Beattie DCJ said: “As was observed by His Honour Judge Middleton in the decision of Bell, and which has been followed by other decisions in this Court, the fact that a personal injury by accident causes previously asymptomatic pre-existing conditions to become symptomatic does not entitle a claimant to ongoing entitlements under the Act when the effects of the injury have dissipated and all that is left is a continuing, now symptomatic, pre-existing degenerative conditions. When that stage is reached entitlement must cease.” [26] Recently in McDonald v ARCIC [2002] NZAR 970 Panckhurst J referred to another dictum of Beattie DCJ in Hill (189/98) as follows: “[But] the provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature.” [27] These principles have been reaffirmed by Beattie DCJ in Papistock (150/2002), where he rejected the submission that, but for the injury the claimant’s pre-existing cervical spondylosis, which up to that event had been asymptomatic became symptomatic, and therefore was the present cause of the incapacity. 064-2005 7 [28] The above two dicta reflect the situation that is commonly encountered of a degenerative condition that was asymptomatic, but whose symptoms were ignited by the injury suffered. While these propositions of principle also impact on the second step concerning a consideration of the ageing process, they also may be an important analytical tool on the first step of causation. [29] The issue here is whether the appellant can show that the present entitlement to cover still is substantially causally related to the original injury. The appellant on these facts must show that her present symptoms were caused or substantially caused by the incident, when she strained her back. Generally speaking, if that incident merely rendered symptomatic an underlying degenerative condition that would not be sufficient. [30] A central core of the Accident Compensation legislation is “personal injury by accident”. Generally, this means an objective physical injury that may be monitored from time to time to see if the initial injury has been spent. The onus of proof is upon the appellant to show that the symptoms from which she now suffers are the substantial result of the incident occurring on 13 April 1992. The onus of proof is proof upon the balance of probabilities. What occurred in 1992 was the ignition of an asymptomatic cervical spine and the symptoms of that ignition still persist. If the appellant can satisfy the causation issue she then must proceed to show on a balance of probabilities that her present symptoms are also not 'exclusively' caused by the ageing process. [31] The question of causation is a medical one and needs to be determined on the available medical evidence. Medical History [32] In 1992 the appellant was diagnosed with a thoraco-lumbar strain. The appellant did not consult a medical practitioner until 8 days after the incident. At that time the general practitioner, Dr Chambers, certified the appellant unfit to work for 10 days. [33] At no point since the accident have specialists been able to identify any injury as an explanation for the appellant’s ongoing symptoms. As noted by Mr Otto, “it was considered that Mrs Quaile-Coleman had developed a chronic pain syndrome.” 064-2005 8 The Medical Reports of Mr McAuslan [34] In his medical report dated 10 December 1993, Mr McAuslan reported in some detail. He said that the appellant had been working as a nurse, helping a patient move from her bed to a chair, and as she turned and was lifting the patient, she suddenly developed pain in her neck and between her shoulder blades. The pain radiated down the rest of her spine to her hips. She kept on working, but the following day the pain was considerably worse. She consulted her doctor and was referred to a chiropractor. [35] She continued to have pain in her neck, and was referred to Dr Perry, who carried out manipulation under a general anaesthetic, but this was not beneficial. She subsequently had an injection of cortisone in the region of the right hip, but this was not helpful either. Several months ago she was referred to the pain clinic, where she was seen by Dr Acland. At that time, x-rays of the cervical spine were apparently carried out which showed only some slight narrowing of the C6/7 level. The appellant was aware of the fact that she had a scoliosis of the thoracic spine, but this had never caused her any pain, and had not been restricted her in her activities. Prior to the injury on 13 April 1992 she had been extremely active and participated in a wide range of sporting activities. [36] In the opinion of Mr McAuslan, the appellant had a diffuse dysfunction of her spine from the cervical to the lumbar region. The symptoms had arisen since the injury on 13 April 1992, and he concluded as she was apparently fit and active prior to this, that the impact had precipitated her present state. In his opinion he thought the situation was compounded by the appellant’s rather obsessive nature, which was evidenced by the voluminous notes regarding her symptoms, and also the numerous diagrams and charts detailing her symptoms. He believed the best treatment for the appellant lay with the Pain Clinic, and with a continuation of anti-inflammatory tablets. He thought it very likely that her symptoms would take some years to improve. Her situation was therefore regarded as stable. [37] He assessed the disability having an overall total body disability of 30%, which comprised 10% for the cervical spine, 10% for the thoracic region and 10% for the lumbar region. [38] Mr McAuslan again saw the appellant on 20 February 1995. She continued to have pain in her neck and was troubled by headaches. She also had pain which 064-2005 9 radiated to both shoulders and down between her shoulder blades, and at times it felt the pain radiating down the left upper limb, with occasional paraesthesia in this area. She was taking pain killers and anti-inflammatory tablets. [39] Examination did not reveal any new clinical findings and the clinical findings remain much as noted on 10 December 1993. [40] In the opinion of Mr McAuslan, the appellant was not ready to undertake any regular work but as she hopefully continues to improve, she would benefit from some re-training for some form of light work. He thought that her symptoms would slowly improve, although it might take many months. [41] Mr McAuslan again reported on 20 October 2004. He noted that she was presently working in community support work, looking after disabled people. At the present time she was working normal day shifts, but she would in the near future be starting to do night duty work, which would be considerably lighter and less physically demanding. [42] Her problems are that she has some degree of lumbar pain most of the time. The degree of pain is variable, and on occasion the pain can radiate to her right buttock and down the posterior aspect of the right thigh on occasion. She does not have any particular numbness or tingling in either lower limb. [43] Her neck aches all the time. On occasion she feels a tingling sensation in either left or right hand. [44] The cervical spine has approximately 80% of the expected range of movements, with no tenderness and no involuntary muscle spasm. There is no neurological deficit in either upper limb. [45] Mr McAuslan said: “This lady has had a scoliosis of the thoracic spine probably since she was a teenager and she now has a degree of lumbar and cervical spondylosis which is no doubt due to secondary arthritis as a result of the long standing scoliosis.” [46] In his view there was no question of any surgical intervention. She should take the medication that was prescribed. He could see no reason why she should not be able to continue to work doing night duty which would be less physically demanding. 064-2005 10 [47] Mr McAuslan again reported on 12 January 2005. He said that prior to 1992 the appellant did not have any particular problems with her back or neck, and she was actively involved in tramping and was able to work without any difficulties. Following the injury in 1992, she had quite severe pain in the lumbar spine and cervical spine, and subsequently attended a chiropractor. [48] The appellant felt that the injury in 1992 and the subsequent manipulative treatment precipitated her pain. The pain had become a chronic problem, and although it had improved somewhat, it was still present. [49] The appellant was known to have scoliosis or curvature of the thoracic spine, and this almost certainly started when she was a teenager. The curvature in the thoracic spine was balanced and compensated by curves in the cervical and lumbar spine in the opposite direction to that in the thoracic spine. As a result of this it is not very obvious that she in fact does have a curvature of her spine. [50] Mr McAuslan expected that a patient with a curvature of the thoracic spine would develop some arthritis in the compensatory curves in the cervical and lumbar spine, and these degenerative changes would occur over a period of years. With the progression of the degenerative changes, it was possible that the appellant may have developed symptoms of pain in the cervical and lumbar regions. The point the appellant makes was that she did not have any symptoms prior to the incident in 1992 when she injured her neck and back while lifting a patient, and the subsequent chiropractic treatment aggravated her pain significantly. The Medical Report of Mr G.H. Perry [51] In his latest medical report dated 1 March 2004, Dr Perry, rheumatologist, noted that the appellant had a moderate mid-thoracic scoliosis convex to the right and a compensatory but less marked lumbar scoliosis. He thought that the major significance given to this condition surprised him. He said that he had seen the appellant again on 23 February 2004, and that her symptoms and signs were largely unchanged, and similar to the time when he first saw her in 1992. He again found similar clinical findings of significant restricted dorsal and lumbar spine mobility together with moderate scoliosis. [52] He said that the difficulty that arose was in trying to give an evidential basis for a spine mechanical problem, dysfunction, or mechanical restriction. 064-2005 11 Unfortunately, there was not a sophisticated technology available to accurately define a precise mechanical fault that could be evident clinically at the L1 level, for example. Others working in the musculoskeletal field were attempting to provide an evidential basis through pain blocking injection techniques. [53] The injury event on 13 April 1992 was the lifting of a patient. In the opinion of Dr Perry the signs and disability were directly attributed to this injury. He considered that it was incorrect to attribute the appellant’s problems to a moderate scoliosis. [54] Dr Perry thought that it was only an opinion of Mr Otto and not a fact, that the symptoms would have settled in a six to eight week period. Dr Perry noted that the review decision seemed to be based on Mr Otto’s advice. [55] Dr Perry said it should be noted that Mr Otto was the only person who had reported any significance attached to the congenital anomaly. [56] He, Dr Perry, would not anticipate any clinical disturbance as the result of the moderate scoliosis, and he was surprised at the major significance that it had been given in reading the reviewer’s report. Medical Report of Dr John Hancock [57] In his medical report of 26 November 2002, Dr Hancock criticises the diagnosis of Mr Otto. He said that the problem with the diagnosis was that the appellant had no significant pain until her accident in April 1992 in spite of her having a structural abnormality, or congenital abnormality in the thoracic spine. Furthermore, her symptoms were wide-spread along the spine, they concentrated about the lower back and also felt in her limbs. These symptoms could not be accommodated for by a local congenital condition of her thoracic spine. [58] Dr Hancock thought the x-ray readings did not support the contention of Mr Otto. It was only a moderate mid-thoracic scoliosis convex to the right and was centred at T8 and a compensatory but less marked lumbar scoliosis convex to the left. [59] There was a mild to moderate thinning of the disc spaces on the left side of the thoracic scoliosis. The remaining disc spaces appeared well maintained. 064-2005 12 [60] Even ten years following her injury, there were no changes in the lumbar spine and the minimal changes of the discs in the thoracic spine were entirely expected, and it is well understood that most people with moderate scoliosis of this magnitude are asymptomatic, and the radiology finds therefore irrelevant. [61] In the opinion of Dr Hancock, the appellant’s present condition was unchanged and her prognosis was poor. The condition was consistent with her stated injury of 13 April 1992 with a subsequent major aggravation following chiropractic treatment. Her present incapacity was wholly as a result of the accident of 1992. The Medical Report of Mr Brian K. Otto, Orthopaedic Surgeon [62] In his medical report dated 13 August 2002, Mr Otto said that he had seen and examined the appellant, and had arranged x-rays of her thoracic and lumbar spine. It had been considered that the appellant had developed a chronic pain syndrome, and she had been referred to the Pain Clinic at Auckland Hospital. [63] While in Australia, she was obliged to work to maintain herself, and she undertook tele-marketing for short periods of time, and carried out this type of work on and off over a period of four years. [64] Mr Otto said that when she isolated her main area of discomfort, she indicated this was in the lower lumbar area, and it appeared to be more towards the lumbo-sacral junctional region, and had some of the features of mechanical change, which would relate to wear in the discs in that area of the spine. [65] Mr Otto formed the overall impression that the appellant had a structural abnormality in her thoracic spine in the form of a thoracic scoliosis, which had been present throughout life. On her own statement, intermittently this was aggravated by lifting activities that she carried out in the nursing home, and finally gave her significant symptoms when she lifted a particularly heavy person. The fact the symptoms had not settled over a lengthy period of time between her accident in 1992 and the present time, which is a decade, is unusual for a back strain unless there was some underlying structural abnormality. The scoliosis is such an abnormality, and that would explain the ongoing symptoms and the length of disability from the simple lifting activity that she carried out a decade ago. 064-2005 13 [66] Mr Otto said that the x-rays taken on 12 August 2002, confirm the clinical findings of a short type thoracic scoliosis of 30 degrees with an apex at D9, with compensatory curve in both the upper cervical and lower lumbar regions. The scoliosis had caused compensation to occur in the cervico-thoracic junctional region, as well as the lumbo-sacral junctional region, and would give rise to the additional symptoms that she had in her neck and upper shoulder regions, as well as in the lower lumbar and lumbo-sacral junctional areas of the spine. [67] The description therefore of a defused chronic pain syndrome, Mr Otto would find it difficult to reconcile with the fact that she had a structural scoliosis and changes on either side of that curve, enough to account for the type of symptomatology of which she complains. [68] Mr Otto said that the appellant had seen a number of examiners who had not recorded the fact that she had a structural scoliosis involving the thoracic spine, and which of itself, with changes and increasing wear with time, due to the defects of the scoliosis, and that would account for the type of mechanical back pain and changes of which she now complains. [69] From a clinical standpoint it was possible to state that the scoliosis, associated with the compensatory changes in the lumbar spine, where there are secondary wear features, were enough to account for her overall symptomatology. [70] In the opinion of Mr Otto the lifting event, which was said to have precipitated her original disability in 1992, had only just simply served to make her aware of the underlying changes which were based on a congenital abnormality in the thoracic spine, in the form of a curvature. There was in fact some warning that there were changes in that she had had intermittent back pain, but with one heavy lift, the symptoms became more pronounced and it was that event that she documented in April 1992. [71] After reviewing her x-rays, she was always going to be at risk carrying out the heavy nursing activities that she had completed. Her ongoing disability and changes, in the opinion of Mr Otto, related to the effects of the underlying structural abnormality in her spine, and that had to be considered as being congenital and of long standing. 064-2005 14 [72] In the opinion of Mr Otto, the appellant’s disability was an underlying congenital anomaly in the spine in the form of thoracic scoliosis and the length of time that she appeared to have been incapacitated on account of it, reflected more accurately the effects of the underlying congenital anomaly rather than the effects of the injury per se. [73] Mr Otto reported again on 20 August 2002. He confirmed his opinion that the incapacity and the ongoing symptoms of the appellant related to a congenital condition of the thoracic spine. Because of the architecture of the scoliosis, lifting was always likely to unmask this underlying defect, and she had had prior warning with previous episodes of back pain in her nursing activities. [74] He was of the firm view that the incapacity the appellant demonstrated was based exclusively on the structural deformity in her spine, and with time, there were changes in the adjacent discs due to wear, because of this underlying structural abnormality. The Submissions of the Appellant [75] The first issue is that Mrs Quaile-Coleman's ongoing symptoms are as a result of the accident that she sustained on 13 April 1992, hence she is entitled to rely on the definition of injury under the 1982 Act. As a consequence of that ruling it must follow that Mrs Quaile-Coleman is entitled to a continuation of entitlements under the Act unless it is established that her current condition is exclusively, not substantially, caused by a degenerative condition in her neck and back, that is 100% due to the ageing process. The effects of Mrs Quaile-Coleman's accident on 13April 1992 are still manifest as she continues to suffer from accident related symptoms. [76] Mrs Quaile-Coleman has not been able to undertake her employment for which she was employed at the time she suffered her personal injury being that of geriatric nurse. Even if she were capable of engaging in part of her employment activities, she is still incapacitated for that employment. [77] The medical evidence on file establishes that the symptoms suffered by Mrs Quaile-Coleman following her accident have not dissipated to such an extent that she is able to carry out her pre-accident occupation. The only dissenting view with regard to the cause of the ongoing symptoms is Mr Otto. Clearly the weight of 064-2005 15 the medical evidence is of the view that Mrs Quaile-Coleman's current symptoms are a direct consequence of the accident. [78] Reports from Dr Perry and Dr McAuslan that date back to 1992 /1993 at the time of the accident note the effect of the scoliosis, but see the accident as the result of her ongoing incapacity. The scoliosis has had a minor effect. Their opinion remains unchanged some ten years later. It has been further stated that the treatment by the chiropractor at the date of injury or not long after has injured the claimant further. [79] There is clear evidence from Mrs Quaile-Coleman's GP and specialists in Australia that at no time has her incapacity ceased but rather from the date of accident 1992 to 2002 her symptoms have remained unchanged. This is noted in reports from 1996 the date which she left for Australia and from the date she returned to New Zealand in 2002. Whilst in Australia the appellant was in receipt of a disability pension which is evidence of the fact that she was still suffering the effects of her injury. Furthermore the x-rays show mild and moderate scoliosis in 1992 and later radiological evidence to 2002 show little change. [80] Prior to Ms Quaile-Coleman's return to New Zealand in 2002 she became aware that she may be eligible for entitlement to ACC and that the information told to her in 1996 was not correct, in that she could have continued to receive entitlements whilst in Australia. If she had ongoing incapacity related to her accident in 1992 and had supportive medical evidence then she would be entitled to continued entitlements. It is submitted that the decision by the respondent to decline weekly entitlements to Ms Quaile-Coleman is based solely on Mr Otto's report which does not stand up to scrutiny. When looking at the whole of the medical evidence on file he is the sole dissenting decision. [81] The appellant has strong signs of a dorsal compartment reaction viz. Strong longissimus tenderness at Ll/2, solas trigger points tenderness of the L5/S1 deep para-spinal sites and T9 deep para-spinal sites. In the neck there is tenderness over the lateral trapezius C5/6 and of that muscle overlying the levator. There is clear evidence of a widespread spine reaction that continues and given the consistent history, this almost certainly stems from the injury of 13 April 1992. There is no question whatsoever that she could not have continued in her occupation as a geriatric nurse from 13 April 1992. Furthermore she could not carry out such an occupation currently on the basis of specialists’ reports on file. 064-2005 16 [82] The submission is that these conditions constitute ongoing physical injuries at the accident site of her sprained neck, upper spine as well as lower back and development of chronic neck and back pain. Therefore, the appellant is still entitled to ongoing entitlements as there is still a causal link to the accident on the 13 April 1992 and her ongoing symptoms. Decision [83] I prefer the medical evidence of Mr McAuslan and Mr Otto. Mr McAuslan does not identify any physical injury that is linked to the covered injury of 1992. He acknowledges that the appellant suffers from an arthritic condition and suggests that this condition is a result of the appellant’s longstanding scoliosis. Mr McAuslan noted the appellant’s symptoms, but said that they were without neurological explanation. His only diagnosis was of diffuse dysfunction, but he came to a conclusion that because of the injury her present state was precipitated by this injury. [84] Mr Otto concluded that the cause of the appellant’s disability was an underlying congenital anomaly in the spine, in the form of thoracic scoliosis, and that her incapacity more actively reflected her underlying scoliosis rather than of the effects of an injury. In his report dated 20 August 2002 Mr Otto stated the incapacity suffered: “is based exclusively on the structural deformity in her spine which even without a lifting injury, were likely to produce symptoms on account of the alignment abnormalities in the spine.” [85] Mr Otto in his medical report of 13 September 2002 advised that the appellant’s injury could have been expected to resolve itself in a period of 6 to 8 weeks. In the experience of the Court that would seem to be the likely time for what was at the most a soft tissue injury. It is significant that the appellant’s general practitioner initially certified the appellant unfit to work for 10 days and that she did not consult him until 8 days after the incident. The original injury does not seem to have been that severe. [86] Mr Hancock could not identify any injury, which was the cause of the appellant’s present symptoms, but essentially relied on the temporal connection. Mr Perry also relied upon the temporal connection to establish causation. Mr Perry did not specifically identify any injury as being the cause of the symptoms, except for 064-2005 17 reliance upon her previous medical history. He said that there was difficulty in attributing the appellant’s symptoms to a mechanical problem. [87] In my view, this case falls squarely within the McDonald principles. I find the covered injury was spent and the appellant has not proved to a probability basis that her present symptoms are coming from it. [88] For the foregoing reasons the appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this 7th day of March 2005 (J. Cadenhead) District Court Judge 064-2005 18