Martin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 50 /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 HINE TETAU MARTIN DCA 349/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of March 1998 APPEARANCES: Mr R Manihera for appellant Ms C Taylor for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant's present incapacity is as a consequence of and attributable to the injury to the appellant's left wrist suffered on 28 July 1988. 2 Background On 28 July 1988 the appellant hit her left wrist against the base of a sewing machine at her work at Woolrest International Ltd. In her claim form she stated "pulled corner of sleeper to sew elastic and hit my wrist against the base of the machine". The appellant's claim was accepted and she began to receive payment of weekly compensation. In his report dated 14 December 1988 Mr I D Brown, Orthopaedic Surgeon, stated: "On examination I find it difficult to assess wrist. She tends to over react a little and she is tender in a fairly widespread distribution over the lower radius, the ulnar, the radial styloid process, the back of the carpus and into the back of the hand. Wrist movements are slightly limited by pain, rather than a sense of obstruction. Her rheumatoid serology is negative, x-rays show nothing of consequence. In view of the elevated ESR for which there appears to be no obvious explanation I have arranged a bone scan." The result of that bone scan was recorded in his report of 15 February 1989 as follows: "Bone scan has shown slight increase in bone uptakes, diffusely around the wrist, without specific localisation. It is difficult to know how to interpret this. This appearance can sometimes occur simply in response to increase blood flow. 3 ... Plain x-rays are certainly quite normal." A further specialist report was obtained from Mr Brown in June 1992 where he stated as follows, "This patient has complained of a very persistent pattern of pain around the left wrist and hand dating from a relatively innocuous injury when her hand was struck against the edge of a table. Investigations have shown no bony injury. It is difficult to explain her symptoms exclusively on an organic basis and I feel there is a functional component to her problem. I feel it is not possible therefore to produce an accurate prognosis. Treatment has been extensive and has involved physiotherapy, the use of a splint, anti- inflammatory agents, etc. I feel that she would not be able at present to handle her normal job as a machinist and would suggest that she be referred for a Rehabilitation Work Assessment trial. I feel that she should be able to carry out most of her household duties." A further specialist report was obtained from Mr G L Cowley, Orthopaedic Surgeon. He stated in a report of 28 May 1993: "Apparently at the time [of the injury] the wrist was swollen and painful. However, an x-ray did not reveal any bony injury. ... There are no significant sensory symptoms. Examining the wrist and hand there is no swelling or deformity. There is widespread tenderness over the dorsum of the distall radius. ... 4 There is a full range of hand and finger movements. Flexor, extensor and intrinsic muscis function is intact. There is no neurological deficit I can detect. Wrist pulses are intact. X-rays have been reported as normal although she did not bring these along today. I'm not able to identify any specific orthopaedic pathology amenable to treatment with steroid injection or surgery. I don't see any alternative but to persevere with symptomatic treatment in the expectation that this will eventually become less of a problem." In 1994 the appellant was referred to Mr R V Jackson, Orthopaedic Surgeon, by her GP Dr Rooke. Mr Jackson reported on 7 September 1994 as follows: "These x-rays show in my opinion normal bone and joint appearances there are no signs of any degenerative arthritic change either in the wrist or in the carpus ... I cannot state with any certainty the cause of this woman's ongoing problems: I could not find any definite cause on clinical examination and x- rays are helpful ... All I could suggest to her today that a bone scan of the wrist is probably appropriate bearing in mind her extended period of disability." After obtaining the result of the bone scan Mr Jackson stated in a letter of 17 February 1995: "There is an isotope uptake in the left wrist which is quite normal. There is some increased uptake at the base of the right thumb possibly due to osteoarthritis change. This is certainly and certainly(sic) nothing to account for Mrs Martin's prolonged disability which I believe dates back to 1988. I have explained to ACC that there is no further treatment I could suggest which is likely to 5 make any difference to the course of the condition. I believe that ACC are possibly going to obtain a psychiatrist referral on the basis that Mrs Martin may have some type of post traumatic stress disorder manifesting itself as persistent pain in her left thumb and hand." In December 1996 the Corporation conducted a review of the appellant's ongoing entitlement and sought advise from her GP Dr Rooke and he reported on 30 December 1996 as follows: "Mrs Martin seems to be suffering from a chronic wrist strain. Is possibly related to her injury dated 28 July 1988. The wrist has been painful ever since that episode... All attempts of treatment have been futile ... There is no evidence of arthritis. I have examined the wrist many times and find no evidence on clinical grounds or are there any other radiological grounds for this. There is a question of psychological grounds or otherwise we can call compensation neurosis... The major problem that the medical profession faces in such instances is that there is no objective test to determine whether an injury is physical or primarily a mental condition." The Corporation thereupon referred the appellant to Mr D E Allan, Orthopaedic Surgeon, for assessment and he reported on 14 March 1997 as follows: "Inspection of the left thumb reveals swelling around the carpo-metacarpal joint and considerable tenderness over the carpo-metacarpal joint. There is pain on stressing the joint... Left wrist is clinically satisfactory and there are no neuro-vascular signs... There is some swelling and tenderness over the right thumb carp-metacarpal joint but not as pronounced as on the left side... Mr Jackson recorded 'x rays show in my opinion normal bone and joint appearances' ... At this stage it is not the left wrist that is causing a problem but the left thumb carpo-metacarpal joint. The clinical picture is quite consistent with arthritis of that joint although x-rays show only relatively 6 minor changes. In my opinion Mrs Martin's persisting symptoms in relation to the left wrist and hand are a reflection of an arthritic process going on in the carpo-metacarpal joint... Mrs Martin has a significant disability in the left hand. At the time of the accident Mrs Martin was dominantly left handed... On review today Mrs Martin would not be capable of returning to work as a machinist. In terms of the injury in July 1988 accepting that the changes at the base of the thumb are a reflection of her injury then Mrs Martin would be restricted in pinching with the left hand, which at the time of the accident was her dominant hand. However there are other major factors affecting Mrs Martin's capability of returning to work and these will be alluded to below ... Mrs Martin also has a problem with her right shoulder and the clinical picture is of a rotator cuff problem and a subacromial impingement ... Mrs Martin describes a severe kidney problem... she also has a liver problem. Mrs Martin also states that she has recently had live threatening anaemia... Mrs Martin general health seems precarious and these factors are described by Mrs Martin today would in my opinion preclude Mrs Martin from returning to her employment." The file was then referred to the Assistant Corporate Medical Advisor who gave as his opinion that the prominent cause of the appellant's condition was one of degenerative arthritis affecting her left carpo-metacarpal joint. He also noted a number of other medical problems which the appellant had which were totally unrelated to her accident injury. As a consequence of the medical advisor's advice the appellant was advised by letter of 23 April 1997 that as it was her arthritic condition and resulting degenerative changes that accounted for her present incapacity and that this was not attributable to the injury sustained by her, she was no longer entitled to receive weekly compensation and the same was thereupon terminated pursuant to s.73 of the Act. 7 The Corporation, in its decision to cancel, relied upon the provisions of s.10 of the Act which states that personal injury caused wholly or substantially by the ageing process is not covered by the Act. It is essentially the submission by the appellant's advocate that prior to sustaining her injury in 1988 the appellant was an active person involved in sporting endeavours, and leading a versatile and energetic lifestyle. From the time she hurt her left wrist she has been unable to carry out any of her former pursuits and is unable to return to her former employment. It is to be noted that the appellant is a naturally left handed person. Mrs Long for the Corporation submits that there is no evidence linking the appellant's 1988 injury with her present incapacity to return to work and rather there is evidence that her present injury is caused substantially by the ageing process and is thereby excluded pursuant to s.10 of the Act. Ms Long further submits that the onus of proof is upon the appellant to establish on the balance of probabilities that her present incapacity is as a direct consequence of her 1988 injury and that the medical evidence establishes that this cannot be said to be the case on the balance of probabilities. Decision: The issue in this appeal requires to be determined by a consideration of the medical evidence and is in fact wholly a medical question. It is to be noted that the original injury was a blow to the appellant's left wrist. Over the years since her injury she has been critically examined by four specialist Orthopaedic Surgeons and there has been the ongoing contact with her GP, Dr Rooke. She has had x-rays and bone scans and down to September 1994, when she was examined by Mr Jackson, the x-ray showed normal bone and joint appearances and no signs of any arthritic change, but it is to be noted 8 that Mr Jackson was unable to state the cause of her ongoing problems. In his follow up report it is noted that he stated that there was nothing to account for her prolonged disability. It is noted that a further 2.1/2 years elapsed before a further examination was made, this time by Mr Allan, and by that time he has advised that there were signs of arthritis and that her symptoms were a consequence of an arthritic process going on in the carpo-metacarpal joint and that this was giving rise to a "significant disability". It is also noted that Mr Allan considers a significant aspect of her disability is an arthritic condition in her left thumb. It is clear that her left thumb was not injured in the 1988 accident but that thumb was a factor which Mr Allan considered would prevent her from returning to the former employment. The appellant would be entitled to believe that all her present problems, and her inability to return to her former employment, are attributable to the injury to her wrist and it seems that for a number of years this was accepted because the medical opinion could not determine any other valid reason for her continuing disability. However, with the passage of nearly 9 years from the date of the injury a considerable amount can occur and in the present case degenerative arthritic changes have overtaken whatever may have been causing the problems to her left wrist hitherto. This Court is obliged to consider the evidence which is submitted and in the case of expert medical evidence it must rely on that evidence and certainly it is not in a position to come to any independent decision of its own on medical matters. 9 The medical question is whether her present incapacity is attributable to the injury to her wrist sustained in 1988. For some years there was no conclusive answer to that question and the appellant seems to have been given the benefit of the doubt and has received continuing cover. However, the latest opinion of Mr Allan is quite clear and there has been no evidence submitted by the appellant which would contradict his opinion. In the absence of any contrary evidence of an expert nature this Court must accept that expert opinion, and apply it to the appropriate Statutory Provisions of the Act. In this case the appellant is entitled to receive weekly compensation for incapacity for so long as that incapacity is directly attributable to the personal injury by accident for which she has cover. The clear opinion is that the present incapacity of the appellant is not attributable to that accident but rather to degenerative changes to the wrist and as such cover is excluded by s. 10 of the Act. Accordingly then I must rule that the decision of the Corporation to cease payment of weekly compensation was correct and this appeal is dismissed. DATED at WELLINGTON this 2 4 day of March 1998 M J Beattie District Court Judge Martin.doc (gm)