Carnachan v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 188 /98 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 DOUGLAS TE KANAWA CARNACHAN DCA 80/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT ON THE PAPERS OF JUDGE M J BEATTIE This appeal was scheduled for hearing in the Huntly District Court on 4 August 1998. However, the solicitor representing the appellant could not appear on that date and requested that this Court deal with the matter on the papers. Counsel for the respondent consented to that course. The issue in this appeal is whether the Corporation's decision dated 26 September 1997 to cease payment of entitlements under the Act to the 2 appellant on the grounds that his ongoing problems and disability were not as a consequence of personal injury by accident, was correct. BACKGROUND On 20 April 1977 the appellant injured his back when he jumped out of a rail wagon. The injury was diagnosed as a strain to the lumbar spine. The appellant was able to resume work after this injury but suffered a further back strain on 16 August 1982 when lifting a steel door on to a railway wagon. From that date the appellant has not worked and has been in receipt of weekly compensation. In November 1985 Mr Nicol, Orthopaedic Surgeon, provided a report to the Corporation for the purposes of lump sum compensation. Mr Nicol stated: "Without doubt this patient's present condition is the result of his injury of 20/4/77. His injury can be said to have stabilised although there is significant potential for future deterioration. Should this occur the patient will require re-examination... It is my opinion that this patient is unlikely to work again. It would be possible for him to work should he be able to find a job where he can move at his own pace which is very slow secondary to his obesity and back pain and could stand and sit at will. It is unlikely he will find a job such as this." It is to be noted that x-rays taken subsequent to the first injury showed "moderate disc degenerative changes with disc narrowing, slight marginal lipping and reactive sclerosis at L4 to L5 and L5 to S1 levels." Mr R V Jackson, Orthopaedic Surgeon, examined the appellant in September 1992 and reviewed x-rays which had been taken in August 1992. Mr Jackson noted: "Some disc degenerative changes in lower thoracic disc spaces, particularly between T12 and L1, and T11 and T12, and T9 and T10. However his lumbar spine appears reasonably well preserved with some early disc degenerative changes present particularly at L4/5 and L5/S1 levels." "Mr Douglas Carnachan has a well documented spinal problem dating to an injury initially on 20.4.77. Most of his treatment appears to have been at Auckland. He was only off work for some two weeks initially, he was able to return to his job as a labourer or freight forwarder with New Zealand Railways. Since 1982 this man has had to be placed off work, he has not worked since that time and I can only agree with Mr Richard Nicol's assessment, that it is most unlikely he will rejoin the workforce in the future. He presents as a markedly obese unfit looking Maori man, he now has a well established chronic back problem, there is no particular cure for this, obviously acute episodes of trouble can be treated at physiotherapy, anti- inflammatory and analgesic agents. He has an extremely irritable back which is easily upset even by minor trauma. Obviously his marked weight problem is not helping the situation to any degree at all." In November 1994 the Corporation again sought Mr Jackson's opinion as to whether the appellant was still suffering the effects of his injury of 1977. For the purposes of that report new x-rays were taken and Mr Jackson reported as follows: "Mr Douglas Carnachan has a well established spinal problem, I note in your letter that you stated that X-rays appeared normal in 1992. This is in fact incorrect as there were considerable changes in the lower thoracic and upper lumbar spine. He was always noted to have lumbosacral problem area and this is confirmed on X-rays taken today which show minor degenerative changes at all levels in the lumbar spine, maximal with disc space narrowing 4 at 15/S1 and L4/5 levels. The changes in the lower thoracic and upper lumbar levels are now more pronounced with virtual anterior bridging between adjacent vertebrae from osteophyte formation. This man has not worked for a very long period of time... He is certainly a gross overweight person which is not helping the situation. I believe however that this man was never going to return tot he workforce from 1984 onwards. I believe him to be an absolutely impossible rehabilitation target as such because of his size and ongoing spinal problems which are now of a degenerative and progressive type, that this man is not going to return to the workforce in the future. Any attempt at anything other than very minor physical exercise rapidly produces an aggravation in symptoms. In the absence of any evidence to the contrary, or any past history prior to his initial injury one must take the present changes as related to the injury he sustained many years ago. The man in my opinion will be a permanent ACC beneficiary." In 1997 the respondent sought a further up to date opinion on the appellant's injury from Mr D E Allen, Orthopaedic Surgeon, and after reviewing the previous reports Mr Allen advised that the current incapacity was a reflection of severe spondylitis changes in the thoraco-lumbar spine. He further stated that in his opinion any back strain that may have occurred in the May 1977 accident was no longer playing any part in the appellant's present symptomology. It was on the basis of that advice that the respondent advised the appellant on 26 September 1997 that it was ceasing his entitlements pursuant to section 73(1) of the Act on the grounds that his current incapacity was caused 5 wholly or substantially by the ageing process and not as a consequence of personal injury suffered in 1977. The appellant sought a review of that decision and for the purposes of that review a report from Stewart Hardy, Consultant Orthopaedic Surgeon, was obtained. Mr Hardy stated as follows: "X-rays from 1988, 1994 and 12.09.97 show progress degenerative changes, mainly of the thoracolumar region and also of the lower lumbar area. The thoracolumbar changes are more consistent with diffuse idiopathic skeletal hyperostosis as there is significant right sided anterior spondylophytes but little disc spacing narrowing. In essence I agree with Don Allen in his opinion that this man has significant degenerative changes and DISH which is causing his marked disability. It is very difficult to assess this as ACC compensatable, although it is not impossible I guess that it is a secondary to his fall. It is most likely that this is related to genetic and weight factors." The Review Officer found that the degenerative condition of the appellant's spine had superseded the effects of the 1977 injury and that his present incapacity was no longer a consequence of that personal injury. Further, that the provisions of section 10 of the Act excluded continuing entitlement where the injury is that of gradual process, disease or infection. The appellant has appealed to this Court contending that the decision of the Review Officer in finding that the appellant's condition was caused wholly or substantially by the ageing process was wrong. 6 No further medical evidence was sought to be introduced for the purposes of the appeal to this Court. The Relevant Statutory Provisions pertaining to this appeal are section 10 and 37A(2): Section 10 of the ARCI Act 1992 states: (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 (b) 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 declared that --- (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. Section 37A(2) states: 7 The object of a determination of incapacity under this section is to determine 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. In written submissions to this Court in support of the appeal Mr Rose, solicitor for the appellant, submitted that the present incapacity of the appellant was due to the initial injury which occurred in May 1977 and that the degenerative process in his back would not have occurred without that initial injury. It was further submitted that the degenerative process could exist but the relevant factor in the appellant's incapacity is the original accident injury. It was further submitted that the appellant's obesity was an irrelevant consideration but nevertheless had been a factor in the decision. It was submitted that the evidence established that the degenerative process has not superseded the effects of the original accident. In his submissions to this Court the respondent's solicitor submits that the onus is on the appellant to establish that his ongoing problems are as a result of his 1977 injury. In order to discharge that onus the medical evidence must support that contention. The respondent submits that the current medical evidence indicates that the appellant's problems are no longer as a result of the accident but are as a result of degenerative changes to his spine. It is submitted that the recent reports of Mr Allen and Mr Hardy are significant as they determine the position at the time that the Corporation made its decision. The respondent further submits that the medical evidence does not support the submissions made by the appellant's solicitor. DECISION For the appellant to continue to have entitlement under the Act it must be established on the balance of probabilities that his present incapacity is as a consequence of personal injury by accident. There must be a causative nexus between the accident and the injury arising there from and the present symptoms of incapacity. The evidence is that the appellant suffered backstrain as a consequence of lifting and jumping off a railway wagon. There is reference in medical reports taken within a year or so of the first accident that the appellant was displaying moderate disc degenerative changes. At various intervals over the intervening 20 years those degenerative changes have been identified and documented and it is noted that they have become more pronounced with the passage of time. The clear medical opinion is that the appellant's ongoing spinal problems are now of a degenerative and progressive nature and are not connected with the trauma of the jarring of the back in the jump from the wagon or from the strain of the back during the lifting episode. It is highly likely that those two incidents accelerated or precipitated the onset of symptoms of the spondilitic changes that were occurring in the appellant's back but it is equally clear that the two accidents did not cause the spondilitic disease which the appellant has in his spine. The evidence is that the effects of the trauma of the two injuries are long since spent and that the residual and ongoing pain and incapacity which the appellant experiences is wholly or substantially as a consequence of the 9 degenerative changes that have occurred to his spine. In those circumstances, the provisions of section 10 apply and make it clear that no cover can be had. The submission by the appellant that the injury was still the substantial cause for the present incapacity is simply not borne out by the medical evidence and in fact the medical evidence is unanimously the other way . Accordingly then, this Court determines that the decision by the Corporation to cease payment of entitlements to the appellant was correct and this appeal is therefore dismissed. DATED at WELLINGTON this / st day of September 1998 M J Beattie District Court Judge Douglas.doc(gm)