Smith v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 142 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWE FRANCIS RAE SMITH of Whangarei Appellant (Appeal No. DCA 369/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WHANGAREI on the 27th day of May 1999 APPEARANCE/COUNSEL CL Cook for appellant D Fotiades for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to cease the appellant's entitlements pursuant to s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 on the grounds that her ongoing incapacity was not caused by injury. The appellant provided a medical certificate from her general practitioner, Dr A K Morgan on 24 August 1992. That certificate noted that the appellant stated she had suffered an accident on 23 March 1992 when "painting roof - when went to straighten up 2 I could not". Dr Morgan diagnosed the problem as "lumbar back strain". The appellant stated that when painting the steep roof she had braced herself so as not to fall and when she went to get up could not straighten and felt her back had torn. The appellant was referred to Mr T Lynskey, an orthopaedic surgeon, who recorded on 13 July 1992: "Pain is felt base of spine, for half an hour of the day, will radiate to either anterior or posterior left thigh, or buttocks, and discomfort radiates out towards SI joints." Mr Lynskey assessed the problem as: "Posteria annular tear, should be treated with a brace which has been supplied today, and rest with intermittent application of heat until symptoms begin to resolve, then physiotherapy in terms of getting movement and exercises may be of some benefit" The appellant was then referred to Mr A Grant, an orthopaedic surgeon, who reported to Dr Morgan on 5 August 1992. Mr Grant's finding was On examination today the lumbar spine was markedly restricted by spasm. Forward flexion was present fingertips to mid thigh with no extension but a reasonable range of (L) and (R) lateral flexion; straight leg raising was to 40" bilaterally with markedly +ve sciatic stretch tests. Femoral stretch tests were also +ve inducing marked pain in the anterior thigh. Tenderness was present both to (R) and (L) of the lumbo sacral joint; all deep tendon reflexes were present and there was no abnormality of muscle power or tone. Xrays show a small spur projecting from the superior corner of the anterior surface of L4 and possible non reactive early narrowing of the lumbo sacral disc space. This lady's history is not entirely consistent but an L3-4 disc protrusion with L4 sciatica on the (L) is best ruled out by CT scan which will also check the lower two disc spaces as well." Following that report on 17 August 1992 Mr Grant advised Dr Morgan that a CT scan 'failed to show any evidence of disc prolapse from L3 to sacrum". He noted that he had therefore made arrangements for the appellant to undergo epidural injection and MUA of the lumbo sacral spine. The respondent met the private hospital costs involved in those procedures which apparently gave the appellant substantial relief. It appears that the appellant then suffered a further back strain in an incident in November 1994 and further back pain was experienced in March 1995 as a result of which Mr Grant certified the appellant as being incapacitated for four weeks from 21 March 1995 with an "injury back". A further report from Mr Grant on 1 May 1995 confirmed some improvement following the epidural and MUA procedures, but that a trial with a lumbo-sacral 3 support had made her symptoms worse. He confirmed that she was still then incapacitated by low back pain radiating to both legs but was unable to make a prognosis. He stated: "The functional limitations are those normally associated with low back pain i.e. an inability to carry out normal farming duties which are normally fairly heavy. The recurrence of pain is in the same distribution as that previously experienced in 1992 and should be regarded as a recurrence of that problem." On 13 October 1995 the respondent put specific questions to Mr Grant who certified that the appellant was fit for only light work and that he was unable to offer her any further clinical treatment. He concluded his report: "While we have been unable to reach a focal diagnosis in Mrs Smith's case I have no reason to doubt that she does suffer from an incapacitating level of low back pain. While this is of uncertain aetiology it has certainly precluded her capacity for heavy work since the time of her injury." The appellant's GP later referred the appellant to Mr S Hadlow, an orthopaedic specialist, who reported to Dr Morgan on 12 December 1995 that "there is no surgical remedial pathology in this lady's case but I am at a loss to explain her symptoms". He suggested that a reference to Dr Petrie, a consultant rheumatologist at the Queen Elizabeth Hospital in Rotorua, might be of assistance. In his report of 22 May 1996 Dr Petrie reported: "Her history is typical of many people with chronic pain syndrome, with the experience of pain felt in her back and up between the shoulder blades, described as a burning pain, occasionally radiating down the back of both thighs. It is present most of the time and is worse with activity. She finds that she becomes 'cast' in certain positions. The past history has been outlined in your letter. I note that she is taking occasional Voltaren and Digesics. She is on no other medication, denies any allergy and is a non smoker. She attended today with her partner Dianne. On examination she is overweight, she moves with extraordinary slowness from the consulting room to the examining couch and has a very emotionally flat affect. Examination of her back shows that she has normal straight leg raising to 80 bilaterally, her knee reflexes and ankle reflexes are present and symmetrical and whilst her back movements are restricted in all directions, this is accompanied by significant facial grimacing and pain behaviour. There is widespread muscular tenderness, there is prominent allodynia with skin roll tenderness over the back and prominent dermatographia over the tender areas in the back as well. Ms Smith has a chronic pain syndrome. I have explained this to her today as being due to a state of hypersensitivity of the pain fibres throughout the tissues of the back, including the skin and presumably the underlying muscles. There is no evidence of any underlying disc, nerve, joint or bone disease, inflammation or damage. These chronic pain states can arise without underlying damage for reasons which are not well understood and are often poorly treated. Certainly the worst way of treating people with chronic pain syndrome is to tell them to rest. This merely makes their fitness even lower and with deconditioning their experience of pain worsens. In our experience here at Queen Elizabeth Hospital the most effective form of treatment is a regular physical activity programme helped by analgesia say with regular Paracetamol two tablets, four times a day taken whether she feels she needs them or not. Physical activities such as aquajogging, stretching, swimming and cycling can be commenced without fear of causing any damage (remembering there is no underlying damage in the first place). This will often give rise to an exacerbation of pain and discomfort which can often be off putting. However, patients should be reassured that hurt is not harm and that activity is the only ways of restoring their normal function. She should avoid further contact with the medical profession in any context of making a diagnosis or any other form of intervention or treatment. This goes for physiotherapists and chiropractors as well. Treatment with therapeutic massage may often be useful, but the best form of treatment is to try and 'empower' the patient to take control over their own lives." In February 1997 the respondent referred the appellant to Mr G Laws, an orthopaedic surgeon, who issued a report on 3 February 1997 in which he found: "In my opinion Ms Smiths continuing incapacity is due to her injury. The initial injury was in fact in mid 1992 and the injury that came along in November 1994 was an exacerbation of the original one." Mr Laws said that he agreed with the statements of Dr Petrie in the second paragraph of Dr Petrie's report and considered that no further treatment need be undertaken. The respondent then referred all the reports to Mr OR Nicholson, an orthopaedic surgeon, in August 1997. The respondent had posed certain questions to Mr Nicholson who noted that the appellant had back pain and that "the site of pain is demonstrated as being at the lumbosacral junction - there is moderate tenderness on gentle palpation of that area." He consider that the appellant had "a chronic nonspecific back pain". Mr Nicholson thought that there were "psychological factors in the background which are contributing to her ongoing incapacity". He then stated: "In view of the fact that she was able to return to farm work for two years - rather longer than the year indicated in your letter, it is my opinion that she must be considered to have recovered from the original episode. 5 It is well recognised that in those who experience back pain at least half do so for no apparent cause and without any history of injury - most lay people and indeed many doctors are of the view that an injury must have been the cause of the symptoms." Mr Nicholson did not consider that any form of treatment could be offered to the appellant. On 15 April 1998 the respondent notified the appellant that as the medical evidence suggested that her incapacity was not injury-related her continued entitlement under the Act was ceased pursuant to s.73(1). The appellant applied for a review of that decision. Prior to the hearing of the review, the appellant was examined by Mr R Weeks who issued a report on 13 May 1998. In his report Mr Weeks stated: "The physical signs elicited suggest strongly to me that Mrs Smith has bilateral sacro- iliac dysfunction worse on the left than the right. The sacro-iliac stress tests are all positive more markedly so on the left than the right. There is pain inhibition of the psoas and hamstring muscles. There is marked tenderness of those ligaments which control movement of the sacro-iliac joint making nutatory springing of the sacrum very uncomfortable indeed, counter-nutatory moderately so and lumbar and lower thoracic springing mildly unpleasant. The distress in the lumbar and thoracic area may be explained by the fact that the function of the thoraco-lumbar spine and the sacro-iliac joints is inextricably bound together and one tends to get a reflex lumbar and thoracic dysfunction superimposed." And later he stated: "The dysfunctional sacro-iliac joint was a very popular diagnosis in the late 1920's and on discovery of the lumbar disc lesion was promptly slipped under the carpet and forgotten. Unfortunately this, the largest joint in the body, does cause trouble even thought (sic) its range of movement is difficult to demonstrate other than by investigative radiological techniques. It is becoming more apparent to some practitioners around the world that it needs to be taken seriously and in particular for patients who present with this problem and with no investigations pointing at lumbar pathology, should not be patted on the head and told that is the place where all the problem is. Having dictated the above I then reviewed the previous reports, not having wished to do so beforehand, so as not to have my mind made up however subliminally by them. I note that they are essentially consistent with what I have found today and that Mr Nichol's (sic) examination showed that rotating the pelvis manually without moving the lumbar spine caused pain which again is a pointer towards this being a sacro-iliac problem. I also recommend that the appropriate investigations be carried out for Mrs Smith and I am going ahead with prescribing a sacro-iliac supporting brace for her now so she may perhaps get fitted with it before she returns to Whangarei to at least make a trial of that to see if that gives her some reasonable support. 6 I note that much reference has been made to 'chronic pain state' in the various reports. Having had this problem going on for the length of time that she has, of course Mrs Smith has a chronic pain state. It is bound to develop in such conditions, but I nevertheless feel that it is possible to help and to improve her lot markedly by the methods and approaches I have outlined." The respondent requested Mr Nicholson to comment on Mr Weeks' report. In a letter of 27 July 1998 Mr Nicholson stated: "There were findings on examination indicative of a nonorganic component to her complaint. The development of these signs is not uncommon in those who have experienced back pain for a considerable period, and while not indicating the person is in any way attempting to exaggerate their symptoms, it makes rehabilitation difficult even to the point of being impossible. These signs have to be taken as a group, and to say that one of them is indicative of sacro-iliac joint dysfunction overlooks the presence of the other signs. I do not agree with Mr Weeks' statement that the dysfunctional sacroiliac joint 'was promptly slipped under the carpet and forgotten'. The test book The Adult Spine edited by Frymoyer is widely accepted. It has a lengthy chapter on Sacroiliac Joint Syndrome. It points out the difficulty of there being co-existing sources of pain in the lumbar area, and also points out the difficulty of assessing the clinical tests used in the examination of the sacroiliac joint." Mr Nicholson also noted that: "The present study suggests the sacroiliac joint is an uncommon but real source of low back pain. The accuracy of some of the presumed sacroiliac pain provocation tests is questioned.' He then went on to refer to an article published in 1995 in the Bulletin of the Hospital for Joint Diseases regarding a study of patients with isolated sacroiliac joint dysfunction and spinal problems. Mr Nicholson concluded: "I am unable to find any reports of bilateral sacroiliac dysfunction resulting from an accident other than those associated with fractures." His final opinion was: 7 "In my opinion the accident sustained in 1992 cannot reasonably be held to have resulted in the development of a bilateral sacroiliac dysfunction, and I again draw attention to the fact that she went back to farmwork for two years and apparently managed satisfactorily. The statements quoted above are consistent with the opinion expressed by Dr Petrie and also my assessment of the problem.' After reviewing all the medical evidence the review officer concluded: "The general practitioners simply do not give a diagnosis of injury and now even a date of injury in their medical certificates, which reflects the balance of specialist opinion." As a result he declined the application for review. It is against that decision which the appellant now appeals. The appellant has been given leave to adduce in evidence a report from an occupational therapist, Ms L Clement, dated 23 December 1998 which states: "I have been involved with Francis in the capacity as an Occupational Therapist and as her Independent Needs Assessor. My first involvement was in my capacity of Occupational Therapist when she was attending the Extensions Course at the Northland Disabilities Resource Centre. I worked with Francis to improve her seating arrangements. At that stage she was only mobile using two elbow crutches and could sit for a very short period of time. She had t lie on the floor for part of the time as that was the only comfortable position for her. She was severely limited in physical functioning and suffered from severe and constant back pain. My second involvement was recently as her Independent Needs Assessor to assist with support requirements as her ACC file had been closed. She had been to visit Mr Weeks and was wearing her special support brace. The difference in Francis was truly amazing as she was active without crutches, had lost considerable weight and was able to sit and stand with minimal discomfort. Francis is a changed person since her injury and subsequent disability has been correctly diagnosed and effective treatment provided. This has only happened recently for Francis but the improvement in her level of functioning is very significant as she is now employed fulltime in the type of work she most enjoys." In addition, the appellant adduced a further report from Mr Weeks dated 12 May 1999 in which he states: "Thank you for your recent fax regarding Mrs Smith's problem with ACC. I did not receive a fax of Ist March, and so I am afraid that this is the first chance I have had to 8 pay attention to this. I have a coy of Mr Nicholson's report of October 13th, 1997, and I presume that this is the one to which you refer. I have carefully read Mr Nicholson's report. Chronic pain syndrome' is one of those useful and nebulous rag bags into which problems that are difficult to decipher can be put. I note that Mr Nicholson's account of the history of injury differs from that which I was given when I took a careful history from Ms Smith, and in particular that the way he puts it, may possibly suggest that the problem came on two days after she had been painting, rather than its being noted on descending from the roof while painting. I note also that during the course of examination, he states (page 4) that when the pelvis was rotated passively, i.e. by the examiner, pain is also complained of - this does not move the lumbar spine. My comment on this is that when the pelvis is rotated passively by the examiner without moving the lumbar spine, stress is placed on the sacroiliac joints and this to me is indicative of likely sacroiliac problems rather than lumbar spine problems. I entirely agree there is no evidence of pressure on nerve and that the pain though exceedingly unpleasant, is not very harmful, unfortunately it does often produce pain inhibition of motor function and is sufficiently nasty to prevent people from doing there (sic) work or anything much else at all. Sacroiliac dysfunction was a fashionable diagnosis in the first few decades of this century, until the lumbar disc lesion was discovered. At that time there was (as is typical of all medical fashions) a total swing of opinion in the opposite directions, so that all such problems then were attributed to disc lesions. The truth as is usual with these things, lies somewhere in-between. Such problems as Mrs Smith complains of can sometimes be due to disc lesions, sometimes to sacroiliac joint dysfunction and sometimes to less specific joint dysfunctions in the lumbar spine. Regrettably Mr Nicholson belonging to that generation which was thoroughly indoctrinated wit the 'disc and lumbar dysfunction' explanation, appears to allow him to overlook physical signs which he partly elicits himself during the course of examination, as it appears that his attention was so focused on lumbar possibilities, as not to think that there is another extremely large joint between the bones of the pelvis and the sacrum. The typical injury which Mrs Smith sustained is such as to be likely to be the cause of sacroiliac joint dysfunction. I feel that major problems with the initial diagnosis is that there is a tendency to explain such things as a simple back strain (whatever that may mean) and that the symptoms suffered are similar. 9 As a further comment I would point out that since the provision of an appropriate brace, directed at helping with sacroiliac joint stability, and a course of sclerosing injections into the posterior interosseous sacroiliac ligaments, there has been a sufficient (though not total) improvement in Mrs Smith's condition, to make me feel that we are on the right track with this. The treatment has been directed at the sacroiliac joints only and not at the low back and the favourable response to that, I find encouraging." In her submissions Ms Cook has referred at some length to the various medical reports from which the decision of the Court must be based. Her basic submission is that the review officer erred in finding that because there was no confirmation of a definitive diagnosis the appellant was not entitled to cover. In support of this submission she referred me to the decision of Judge Beattie in Herrick (190/98) in which His Honour noted: "The sum of all the reports clearly demonstrates to this Court that this appellant is a genuine person, she is not imagining her pain and she has demonstrated a desire to overcome it by whatever means can be put at her disposal. Thus, I dismiss any consideration that this appellant is attempting to abuse the system. I also mention that such a state of affairs has not been alleged at any stage, either by Counsel or the Corporation or anyone else. However, I mention it because it is something that must raise itself when we have a medical situation where there does not appear to be any definitive diagnosis of what precisely her problem is." In the course of his decision His Honour had regard to a report from Mr Grayson, an orthopaedic consultant, in the decision in Felgitscher (136/98) in which Mr Grayson stated "Although with my orthopaedic colleagues I am sure that there is pathology at the lumbo-sacral junction in Steven's case and recent research work has shown that as the result of trauma there can be tears of the posterior annulus of the lumbo-sacral disc, granulation tissue (repair tissue) grows into these tears carrying sensitive nerve fibres and stimulation of these nerve fibres by bodily movements causes the ongoing back pain and emotional response to such pain. I would feel that Steven fits into such a category of disability." In Herrick His Honour found the same situation as has occurred in this case that a CT scan and a MRI scan did not demonstrate any recognisably problem. His Honour then stated "The Felgitscher's case is not the only instance when this Court has been presented with the situation such as presently occurs and this Court is aware of the opinion of respected musculo-skeletal experts that there can be long lasting muscular strains which are the cause of pain and which do not show on any radiological tests." His Honour then concluded. "In the decision of Felgitscher (supra) I stated: 10 The evidence is clear that the appellant is suffering from pain and that it is still there as a consequence of the injury he sustained in 1998. The fact that specialists have not been able to put a label on it or to diagnose it is no reason for it not being accepted as being there.' I re-assert the view expressed there and I find that the appellant has established on the balance of probability that a causal nexus still exists between the injury suffered by her in the lifting accident and the symptoms that she continues to display today. Ms Cook submitted that a very similar situation has arisen in this case where it is clear that apart from Mr Weeks' and Mr Grant's earlier statements there has been no definitive diagnosis apart from chronic pain syndrome. Ms Fotiades has also referred at length to the medical reports and has submitted that the Court should prefer the opinion of Mr Nicholson which in certain respects is supported by other specialists. Ms Fotiades submitted that the onus is on the appellant to establish a causal link between her injury and her current symptoms and that this has not been satisfied. There appears to be no doubt that after the painting incident in March 1992, the appellant suffered a low back injury for which she was granted cover under the Act. While all the reports refer to low back pain problems none of the specialists have been able to agree on the exact nature of the injury she sustained on that occasion but it was apparently exacerbated in November 1994. I accept from the reports of Mr Grant that the continued problems suffered by this appellant are all of the same nature and originate from the original incident. The great difficulty has been to establish a diagnosis. There has been a diversity of opinion between orthopaedic surgeons and specialists in the musculo-skeletal field in many cases which come before the Court. It does appear to me that when an orthopaedic surgeon is unable to identify a fracture or some specific site identifiable by x-ray or CT scan the continued complaint of pain is often attributed to a chronic pain syndrome. This is recognised to a certain extent by Mr Nicholson when he referred to the article in Spine 21 which noted that "the present study suggests the sacroiliac joint is an uncommon but real source of low back pain. The accuracy of some of the presumed sacroiliac pain provocation tests is questioned." This to some extent is what Mr Weeks has submitted is in fact the problem suffered by the appellant. As is noted in his report of 12 May 1999 "the typical injury which Mrs Smith sustained is such as to be likely to be the cause of sacroiliac joint dysfunction" and he went on to say "I feel that major problems with the initial diagnosis is that there is a tendency to explain such things as a simple back strain (whatever that may mean) and that the symptoms suffered are similar". I consider that there is some correlation between those two opinions and Mr Grant's statement on 1 May 1995: 11 "The recurrence of pain is in the same distribution as that previously experienced in 1992 and should be regarded as a recurrence of that problem." (my emphasis) All the reports from Dr Morgan's initial diagnosis "of lumbar back strain" referred to the appellant's complaint of pain in the lower back, hence Mr Grant's reference to it being "in the same distribution". The sacroiliac joint and the lower lumbar spine would all be readily identifiable to the appellant as being her lower back and from somewhere in that area she has suffered continuous pain until she has been able to get the relief referred to by Ms Clement following Mr Weeks' advice to wear a spinal support brace. While Mr Weeks has been prepared to nominate sacroiliac joint dysfunction as being the problem, I consider that the best that Mr Nicholson can do in relation to that proposition is to suggest that while there is some reference to that possibility in various medical journals, there may be some doubt as to the reliability of the findings of research in that area. Whatever the true diagnosis is I respectfully adopt the findings of His Honour Judge Beattie in Herrick. There is no doubt that since the 1992 incident the appellant has suffered serious pain problems in her lower back which have defied a definitive prognosis. However, following examination and advice from Mr Weeks a back brace has provided dramatic improvement in her condition. I must therefore conclude that the pain problem was produced by some form of injury to the lower back and that that injury has continued until the present time in spite of numerous attempts by the specialists to define its origin. It follows that the appeal must be allowed and the appellant's entitlements reinstated. There will be costs to the appellant of $800 and if the respondent has not met the cost of Mr Weeks' reports there will be an order that it meet those costs. DATED at WELLINGTON this 1/ th day of June 1999 A W Middleton District Court Judge Dca36998.doc(rd)