Lockyer v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 013/2003 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN DOROTHY LOCKYER (AI 156/02) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at Wellington on 26 November 2002 APPEARANCES Ms H Armstrong, counsel for appellant Ms K M Wickham, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal relates to the respondent’s decision of 3 January 2002 whereby it suspended entitlements to the appellant on the basis that her back condition which she then presented was not attributable to the personal injury by accident for which she had been granted cover. The respondent’s decision was made pursuant to section 116 (1) of the Act. [2] The background facts relevant to the determination of this issue may be stated as follows: • On 12 October 2000 the appellant, then aged 56 years, suffered an injury when she slipped whilst getting out of the bath. Her exact description as stated in her claim form was “slipped getting out of bath and fell back onto left buttock”. 156 02 (jed) 2 • The appellant consulted her GP Dr Hubmann and he diagnosed low back strain of level 2 severity. • In January 2001, the appellant was referred to Mr C Hoffman, Orthopaedic & Spinal Surgeon and he obtained an MRI scan. The result of that scan indicated that the appellant suffered from left sided facet joint degeneration at L5/S1. Mr Hoffman advised that he considered that her back and leg symptoms to be related to her injury and to the severe changes seen at L5/S1. • The appellant continued to receive entitlements from the respondent, including weekly compensation, as she was certified as unfit to return to her employment as a nurse. • In November 2001, the respondent sought the advice of Mr Donald Jones, Orthopaedic Surgeon, in particular as to whether the appellant’s current condition was attributable to the accident of October 2000. • Mr Jones reported to the respondent on 4 December 2001 and it was his advice that the appellant’s present back condition was not attributable to the injury suffered in her fall but rather due to the degenerative condition of her lower back, that condition being substantially caused by disease or the ageing process. • On the basis of Mr Jones’ advice, the respondent made its decision to suspend entitlements and did so by its letter of 3 January 2002. • The appellant sought a review of that decision and for the purposes of that review counsel for the appellant introduced medical reports from Mr P Grayson, Orthopaedic Consultant and the appellant’s then GP, Dr Matuszewska. The Reviewer also had the earlier reports of Mr Hoffman. • In his decision, dated 5 April 2002 the Reviewer noted the fact that the appellant had a pre-existing degenerative condition in her lower lumbar spine and he found that the injury suffered in the fall had resolved and that which continued on was the pre-existing osteoarthritic condition and that it was that condition which was the cause of her present incapacity. The Reviewer therefore confirmed the respondent’s decision to suspend entitlements. 156 02 (jed) 3 • For the purposes of the appeal to this Court, further medical evidence has been introduced, being further reports from Mr Grayson, Mr Hoffman, Dr Matuszewska and Mr Jones. [3] The issue in this appeal requires the Court to consider the medical evidence, the decision to suspend being made on the basis of medical evidence obtained by the respondent and which the appellant has sought to counter by the introduction of specialist evidence in reply. [4] It is the appellant’s contention that her back pain and limitation of movement are caused by the injury from the fall and as such her entitlements should continue. The respondent’s assertion is that the injury sustained in the fall has resolved and all that remains is the now symptomatic pre-existing degenerative condition, that condition not being caused by any accident. [5] I propose to set out the medical evidence which I consider relevant and on which this Court must determine the issue. (1) X-ray report from Dr W J Weston on November 1985 The appellant had suffered a back sprain in October 1985 and her GP had obtained an x-ray of her lower back. The x-ray was of the lumbarsacrol spine and sacroiliac joints. The x-ray stated “there is minor scolosis in the spine convex to the left. Moderate lipping is seen between the bodies of LV 2/3 and minor lipping between LV 3/4. I can see no sign of disc narrowing. The sacroiliac joints are clear. These findings however do not exclude a disc lesion”. (2)Report from Mr Hoffman, Orthopaedic Surgeon to appellant’s GP and ACC dated 27 February 2001 “Dorothy returned today with her MRI scan. It shows that her left-sided symptoms are probably due to asymmetric left-sided facet joint degeneration at L5/S1. The question arises as to whether this was pre- existing or related to her injury. While she did have some minor backache prior to her injury her troublesome symptoms into her left leg came following her heavy fall onto the left buttock. This occurred in October of last year and I think has led to significant aggravation and deterioration of 156 02 (jed) 4 the minor pre-existing facet degeneration. It is interesting to note on the MRI scan that at L4/5 the deterioration is symmetrical but at L5/S1 is most advanced on the left side and this is where her symptoms are”. (3) Report from Mr Hoffman, Orthopaedic Surgeon to ACC dated 27 February 2001 “I think that the accident in October is a Personal Injury and that has caused an aggravation of an underlying condition. I think the condition was probably present prior to the injury but was symmetrical and not severe and since the injury which was a left side injury producing left sided leg pain she has had significant acceleration of the degenerative change on the left side at the L5/S1 level only. Clearly there was some degeneration present prior to her injury as shown on her MRI and from her history of intermittent back problems, but her troublesome injury with back and left leg symptoms I think are directly related to her injury and to the severe changes seen at the left L5/S1. At this stage there is no requirement for further investigations or surgical intervention and I haven’t arranged to see her again.” (4) Report from Mr Donald J Jones, Orthopaedic Surgeon to ACC dated 4 December 2001 Mr Jones had been requested to examine the appellant and review all aspects of her claim and in particular to address the question of whether her current condition had been caused by the accident of October 2000. Mr Jones noted that x-rays and MRI scan taken in February 2001 did not show any evidence of a disc injury or annular tear but showed evidence of pre-existing degenerative changes in the lumbarsacral facets and to a lesser extent in the L4/5 facet joints. In the summary of his advice to the appellant Mr Jones stated as follows: “Dorothy Lockyer is a 57-year-old Registered Nurse who claims to be disabled as a result of ongoing low back pain and left sacroiliac buttock pain, which followed a fall when she slipped and fell backwards into her bath at home on 12 October 2000. Mrs Lockyer has a history of past mechanical back pain during the course of her employment on two occasions, and her objective radiological studies have shown evidence of longstanding mild failure of the L2/3 disc segment, as well as arthritic changes identified at the facet joints at the L4/5 and also at the lumbosacral junction. 156 02 (jed) 5 Her MRI did not show any evidence of an annular tear or any evidence of a disc prolapse. Her symptoms are eased by Celebrex, a nonsteroidal anti-inflammatory, which would suggest that her symptoms are arising from the arthritic facet joints, which would have pre-existed her fall. Mrs Lockyer has a strong genetic or constitutional tendency to develop generalised osteoarthritis, and it is expressed in her fingers with Heberden’s nodes. Clinically she appears to have restriction of cervical movement on the basis of assumed cervical spondylosis, early thickening of the sternoclavicular joints, thickening of the base of her thumb, and early patellofemoral arthritis. She has had a recent operation to the mid- section of her left foot, which I presume was on the basis of osteoarthritic change. While her fall may well have aggravated her arthritic changes, I would have anticipated that any aggravating symptoms would have resolved over an 8-12 week period, and any ongoing symptoms in relation to her back now must be acknowledged as due to the degenerative changes which were pre-existing. In answer to the questions raised in your letter of 21 November 2001: 1. In my opinion, Mrs Lockyer is experiencing mild, frustrating low backache on the basis of osteoarthritic change in the lumbosacral and L4/5 facet joints. 2. My diagnosis is essentially the same as that as recorded by Mr Hoffman, but it is my opinion that injury would have only been an aggravating factor only and would not have caused an acceleration of her condition. 3. It is my opinion that the arthritic change in her facet joints has not been caused by the accident of 12 October 2000. 4. It is my opinion that her condition is substantially caused by the disease or ageing process. 5. The medical evidence indicating that the prolonged incapacity is not injury-related is the fact that Mrs Lockyer has a strong constitutional tendency to develop osteoarthritis and her MRI scan has not identified any evidence of any anterior column injury, namely an anterior annular tear, or evidence of any internal disc disruption. 6. As I do not consider that injury is now responsible for her condition, there are no work restrictions based on injury. However, realistically Mrs Lockyer has reached an age where she is not physically able to cope with work as a registered nurse”. (5) Report from Mr Peter Grayson, Orthopaedic Consultant to appellant’s counsel dated 8 February 2002 Mr Grayson had Mr Jones’s report as well as other medical reports. Mr Grayson also noted that there had been earlier incidents of back injury which had been accepted as covered by the respondent, these injuries being described as sprain or soft tissue injuries. Mr Grayson then went on to state as follows: 156 02 (jed) 6 “I would therefore tend to agree with the comments of Mr Hoffman, Orthopaedic Surgeon, who wrote to the Manager of ACC of Lower Hutt on 27.02.2001. His comments “Clearly there was some degeneration present prior to her injury as shown on her MRI and from her history of intermittent back problems, but her troublesome injury with back and left leg symptoms I think are directly related to her injury and to the severe changes seen at the left L5/S1.” My view would be that the accidents of 11.09.99 and 12.10.2000 have therefore contributed substantially to your present lower back disability and that age related changes and “constitutional” osteoarthritis have played a very minor part in the production of your back and leg symptoms. In answer to your question: “Did the October 2000 accident cause a new and distinct condition?” My answer would be Yes, there has been an acute and severe aggravation of the degenerative changes pre-existing on the left side at the L5/S1 level.” Mr Grayson then went on to state that he did not agree with Mr Jones’s comment that the appellant had a strong genetic or constitutional tendency to develop generalised osteoarthritis. He noted that apart from problems with her lumbar spine the appellant had no complaints about other major joints and that she had never sought medical advice for arthritic problems. Further, there was no evidence of arthritis in her family. He stated that the presence of the Heberden’s nodes were most likely the result of infection but were not demonstrative of a generalised tendency to develop osteoarthritis. (6) Report from Mr Grayson, Orthopaedic Consultant to appellant’s counsel dated 19 November 2002 In his report Mr Grayson is answering questions posed by counsel. The first question being whether the medical evidence indicates that the appellant is still suffering from the effects of her personal injury by accident. Mr Grayson’s response to that was as follows: “In my view from what Mrs Lockyer told me when I saw her in February after the incident in the garden when she had the fall in September 1999, her back pain got worse and there was pain down the left leg indicative of nerve root irritation. This was the first time such nerve irritation was noted in Mrs Lockyer’s case, “but for” accident I would opine such nerve root involvement would not have occurred. 156 02 (jed) 7 Mrs Lockyer was then significantly disabled for some weeks afterwards, and as she says, her back never came “right” after this, and the fall in the bath on 2.10.2000 made both the back pain and nerve root pain worse, confirming an old Orthopaedic adage – “once somebody rally injures their back it will never come back to ‘normal’ again”. Examination findings of tenderness at the lumbo-sacral junction and restriction of spinal movement show that she has a permanent disability at the lumbo-sacral junction, which in my opinion, as stated in my report, relates to an acute and severe aggravation of degenerative changes pre- existing on the left side at this level.” Mr Grayson was then asked to comment on Mr Jones’s opinion that the appellant’s injury would have resolved over a period of time. Mr Grayson stated: “Because of the severe nature of the trauma to the spine Mrs Lockyer’s symptoms and her clinical and radiological findings have not resolved, and are likely to get worse in the future. In this context I would have to take issue with Mr Jones’ statement that Mrs Lockyer has had simple “low energy” falls. There is no evidence produced that these falls were “low energy” nor has there been consideration to the axial and torsional effects of the accidents to the lumbar spine, particularly in a person who is “heavily built” like Mrs Lockyer”. (7) Letter from Dr Matuszewska, to appellant’s counsel dated 27 March 2002 In his letter Dr Matuszewska noted various injuries that the appellant had suffered over the years, including a fall down some stairs and in which she suffered knee and left foot injuries. She advised that her foot injuries had been resolved by surgery carried out by Mr Cleary and that the arthritis in that foot was identified as being spontaneous arthritis caused by trauma. Dr Matuszewska confirmed that the appellant did not have a history of arthritis, nor did her family and she stated that she did not find any constitutional or genetic predisposition on the part of the appellant to develop arthritis. 156 02 (jed) 8 (8) Letter from Mr D Jones, Orthopaedic Surgeon to respondent’s counsel dated 31 October 2002 Mr Jones was asked to comment on the reports made by Mr Grayson, Mr Hoffman and Dr Matuszewska. Mr Jones stated inter alia as follows: “As I indicated in my report, Mrs Lockyer has clinical evidence of arthritic change at multiple sites in her cervical column, the sternoclavicular joints, the base of thumb, her distal interphalangeal joints of her fingers, the patellofemoral compartment of her knees, and as I indicated, she underwent surgery to her midfoot, which almost certainly was on the basis of arthritic change. Simple low energy falls do not cause arthritic change in facet joints in the lumbar spine, neither do simple falls cause arthritic changes in the knees or the hip joints unless there has been significant damage to the articular surface. It is my opinion that Mrs Lockyer has pre-existing osteoarthritic change in her lumbar spine, clearly defined by MRI scan, which was aggravated as a result of her fall. It is my opinion that the aggravation would have resolved over the period of time previously stated, and any ongoing symptoms now must be accepted as being related to her pre-existing degenerative change. Degenerative changes progress over time regardless of injury, and a stiff arthritic joint becomes symptomatic with relatively simple bodily movement. For example, an arthritic knee is usually stiff and painful and can simply be aggravated by stumbling. However, the stumble does not create further damage or arthritis to the knee but simply reflects a joint which is not able to accept the sudden load imposed on it.” (9) Further letter from Mr D Jones, Orthopaedic Surgeon to respondent’s counsel dated 20 November 2002 Mr Jones was asked to clarify certain matters, in particular the process by which arthritic change could arise following injury and he stated as follows: “In order to develop arthritic change following structural injury, one has to sustain a significant injury to a joint, for example, a dislocation of a hip or in fact a fracture of the weight-bearing surface of the upper tibia in terms of the knee joint so that there is an incongruity of the articular surface which leads to altered mechanics and subsequent degenerative changes. Based on my 30 years of clinical experience in terms of spinal surgery, it is rare to see a facet or even a facet dislocation in the lower lumbar area, and certainly falling onto ones buttocks does not result in such an injury of 156 02 (jed) 9 a magnitude which would result in arthritic change. Even multiple falls do not cause such change. Axial loading tends to damage the disc resulting in annular tears or an annular disc prolapse, which is not the case here. I have reviewed the reports from the other observers but I have no reason to change my opinion that I have previously reported”. [6] In her submissions to the Court, Ms Armstrong, counsel for the appellant, submitted that Mr Jones was wrong to assert that the appellant was a person who had a constitutional tendency to develop generalised osteoarthritis. She noted that one of the reasons he gave for that statement was the fact of the arthritic foot condition which had required surgery. Ms Armstrong produced reports from Mr Cleary and Mr Simmonds who had been the surgeons involved in that injury and each of them has given the opinion that the arthritic condition that arose in the appellant’s left foot was traumatic in origin. [7] Continuing on in that theme, counsel submitted that the appellant had suffered several back injuries over the preceding 15 years and that Mr Jones had not taken account of those incidents of trauma and which had likely been the cause of the onset of any arthritic condition in her back. Counsel submitted that the opinions of Mr Grayson and Mr Hoffman were to be preferred to that of Mr Jones on the basis that Mr Jones would not have appreciated the probability that the appellant’s degeneration was caused by trauma over several years and several accidents. [8] Ms Wickham, counsel for the respondent submitted that the specialists agreed that at the time of the October 2000 accident the appellant was displaying pre-existing degenerative changes in her spine at L5/S1 and L4/S5. Counsel further submitted that the experts agreed that the accident had aggravated that pre-existing condition. Counsel submitted that the accident itself was only a mild to moderate strain and that radiological evidence taken soon after did not disclose any tear or disc prolapse. Counsel submitted therefore that the advice of Mr Jones has to be preferred, namely that the appellant’s present condition was the aggravation of her pre-existing degenerative condition and that in such a case, as a matter of law, there was no eligibility for continued entitlements in respect of that condition. 156 02 (jed) 10 DECISION [9] The question which this appeal raises is one which has come before this Court on a considerable number of occasions, it almost invariably has arisen as a consequence of the respondent having suspended or as formerly, cancelled a claimant’s entitlements by reason of the contention that the claimant’s present condition was attributable wholly to degenerative features of the lumbar spine as opposed to any evidence of the continuing presence of physical injury. [10] From the evidence which has been presented in this appeal I find as a fact that this appellant was displaying degenerative arthritic changes in her lumbar spine as far back as 1985, as identified and x-rays taken at that time. When next x-rays and an MRI scan were taken of the lumbar spine in February 2001, those radiological investigations showed that the degenerative changes at the lumbosacral joint had progressed significantly to be then described as moderately severe to severe and with mild to moderate degeneration at L4/5. [11] I note that Mr Hoffman’s interpretation of the appellant’s condition as it presented to him in February 2001. Mr Hoffman noted that whilst the appellant had had some minor backache prior to this injury, her troublesome symptoms had arisen following the fall onto her left buttock. It was his opinion that this incident had led to significant aggravation and deterioration of her pre-existing facet degeneration. [12] When Mr Jones’s advice is considered, leaving aside his assertion that the appellant had a strong genetic or constitutional tendency to develop generalised of the arthritis, it was his advice that the appellant’s backache was attributable to the osteoarthritic change in the lumbosacral and L4/5 facet joints. His advice was that the injury suffered by the appellant would only have been an aggravating factor. He stated that the arthritic change had not been caused by the accident. [13] I then note the advice given by Mr Grayson, firstly noting that he agreed with Mr Hoffman and he also stated that there had been an aggravation of the degenerative changes, which pre-existed. I note Mr Grayson uses the phrase “aggravation of pre- existing degenerative changes”. If by that Mr Grayson is asserting that the osteoarthritic condition as identified in the MRI scan in February 2001 was caused by the incident of 156 02 (jed) 11 trauma some two months earlier, then I say it such is not the case and I can state that this Court has heard evidence on a number of occasions that severe advancement of degenerative conditions would not manifest themselves so soon after the incident of trauma. [14] In this regard I prefer the evidence of Mr Jones that the type of injury suffered by the appellant was not one which would cause an arthritic change unless there had been significant damage to the articular surface. In the present case there is no evidence of any such damage and therefore I find that the degenerative changes which were disclosed by the MRI scan in February 2001 were simply the progression of the degenerative changes first identified in November 1985 and which had advanced with the passage of time. [15] The opinion of Mr Jones notes that there was no evidence of any tear or prolapsed disc following the fall and certainly the injury was only ever described as a strain or sprain. I am satisfied that the appellant’s present pain and lower back problems are associated with the pre-existing degenerative condition of her lumbar spine, that condition being now rendered more symptomatic than it may have been hitherto. Nevertheless that condition was not itself caused by the trauma of the accident of October 2000. [16] As I have noted, this type of situation has come before the Courts on a number of occasions, and I find that the jurisprudence attaching to it is now well settled and confirmed as it has been by the High Court on a number of occasions. The decision of this Court most often cited is that of Burke (198/98) in which it is stated as follows: “If the trauma of the accident hastens or precipitates the onset of the symptoms of the pre-existing degenerative condition, then once the medical opinion is that it is the degenerative condition which is wholly or substantially the cause of the ongoing symptoms then cover is excluded. Whilst the physical effects of the trauma are present, i.e. the twist or strain or such like, medical opinion would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury proved to be causative. Once the effects of the injury had receded and the medical opinion was that it was the residual degenerative condition which was wholly or substantially the cause of the ongoing problem then at that time the claimant was no longer entitled to cover under the Act by virtue of section 10.” Other decisions of this Court in the same vein are Hill (189/98) and Smith (264/01) and which expressions of law have been confirmed by 156 02 (jed) 12 decisions of the High Court in Fowley v ACC (Wellington Registry AP50/00 Justice John Hansen), and McDonald v ACC (Christchurch Registry AP2/02 Justice Panckhurst). [17] I find that on the facts of this present case, as I have found them to be, the expression of law as enunciated in Burke is applicable and that the correct position is that the appellant is no longer suffering from any effects of injury caused by the fall in the bath but rather from the effects of her pre-existing degenerative condition now having become symptomatic. [18] For the sake of completeness I should indicate that I find that this is not a situation where the Court is required to consider whether this appellant has cover for this condition under the Accident Compensation Act 1982. There is no evidence that any earlier incident of trauma was still ongoing at the time that the respondent suffered her injury in October 2000 and therefore I find that the provisions of the 1982 Act, and the definition of personal injury in that Act, has no application in this present case. [19] For the foregoing reasons therefore I find that the respondent was correct to suspend entitlements in relation to the lower back injury which the appellant suffered in October 2000 and for the reason it gave at the time. [20] This appeal is therefore dismissed. DATED at AUCKLAND this 30th day of January 2003 M J Beattie District Court Judge 156 02 (jed)