Burton v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 147 12000 (DCA 148/99) IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HUGH MENZIES BURTON Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on the 7th day of December 1999 DATE OF DECISION 22~g June 2000 APPEARANCES Mr D A Rennie for appellant Ms M M Ahern for respondent DECISION OF JUDGE P F BARBER The Main Issue 1. _.This is another of those cases where the issue is whether the appellant's injured back condition arose from an accident (a motor accident in August 1992), or is due to a degenerative condition. In August 1992 the appellant was employed as a panelbeater. 2. This is a situation which one would have liked to have become clear from the extensive, and rather daunting, array of medical evidence. However, overall, I find that line of evidence inconclusive, but it led to very detailed submissions from both counsel. 2 The Decision of the Review Officer (Mr P Barker) 3. In my view, the Review Officer's decision is a very good expression of the situation. That was issued on 10 March 1999. Mr Barker's opening page outlines the situation as follows: "Mr Burton suffered a back injury in August 1992 when involved in a four- wheel drive accident. At the time he was employed as a panelbeater. Dr Hochberg, General Practitioner, diagnosed an acute paraspinal muscle spasm and sprain due to lumbar spine dysfunction. The Corporation accepted the claim for cover and weekly compensation commenced. In November 1992 Dr Hochberg reported that Mr Burton had severe mid thoracic spine dysfunction and a right L4/L5 disc prolapse. Medical certification was supplied that indicated ongoing back pain with slow improvement. The Corporation funded rehabilitation interventions, including work skills testing and a treatment course at the Mckenzie Institute. Mckenzie Institute reported improvement after exercises. In June 1993 Mr Tregonning, Orthopaedic Surgeon, reported that a bone scan was completely normal. In February 1994 Mr Burton took over the lease of a panelbeating business. The final report from the Corporations Rehabilitation Officer noted that he had taken up the business, provided no further medical certification of incapacity, and there was no indication of further assistance at that time. The Corporation closed the case. In February 1997 Mr Burton approached the Corporations Complaints Investigator advising that he had been forced to leave his business in 1994. He was invited to provide medical certification of incapacity. A medical certificate from Dr Hochberg dated 17 February 1997 indicated a diagnosis of lumbar spine dysfunction and ankylosing spondylitis. Mr Burton, via his representative, then supplied a copy of a report from Mr Rajapakshach diagnosed B27 Positive Spondylitis. Treatment consisted of painkillers and an exercise programme. In June 1997 Dr Hochberg reported that Mr Burton had both mechanical back sprain and HLA-B27, a type of ankylosing spondylitis. Mr Fong, Orthopaedic Surgeon, reported in August 1997 after examining Mr Burton. An X-ray of the thoracic and lumbar spine was normal. Mr Fong found physical findings consistent with ankylosing spondylitis and no signs of disc protrusion or mechanical injury. He concluded that the present condition was largely due to the ankylosing spondylitis On 3 September 1997 the Corporation issued a decision advising that cover had been removed under Section 8 of the Act. An application for review was lodged. On 23 January a revised decision was issued. It was 3 stated that the cause of incapacity since 1994 could not be linked to the injury suffered in the accident, and incapacity had not been met in terms of Section 37A. It is that second decision that forms the basis of this application for review." 4. The Review Officer then summarised the submissions for each party and on page 4 of his decision, under the heading "Other Relevant Information", stated as follows: "Mr Griffin examined and reported on 16 March 1998. He concluded that there was no evidence to support a diagnosis of ankylosing spondylitis. The HLA-B27 was only an indication that a person has susceptibility rather than a diagnostic test. Mr Griffin believed that the current symptoms are related to the incident in August 1992. He recommended an MRI scan. In May 1998 Mr Fong concluded that the whole clinical picture was compatible with ankylosing sponylitis. In May 1998 Mr Rajapaksha concluded that the major component of Mr Burton's symptoms was ankylosing spondylitis. He considered that trauma could trigger a dormant spondylitis, as could rest following trauma. Or Burry, Rheumatologist, reported after viewing the medical reports. He reported that the diagnosis of ankylosing spondylitis could not be sustained without the necessary clinical features expected after a five-year time lapse. He referred to the New York criteria. He also reported that some clinical features, such as normal lateral flexion, were inconsistent with ankylosing spondylitis. In July 1998 Dr Hochberg agreed that the diagnosis of ankylosing spondylitis should be abandoned. Dr Hochberg considered that there was no diagnostic evidence of the disease, and the early indications investigated in 1992/93 were inconclusive. He advised that Mr Burton had been incapacitated since 1994 when he ceased his panelbeating business, and that this was likely due to the trauma in 1992. In July 1998 Mr Rajapakshadvised that the New York criteria are not mandatory for a diagnosis. He concludes that the mechanical back injury is not the sole cause of the back pain, but may be contributing in the presence of a spondylotic condition. Dr Monigatti, ACC Workwise, viewed the medical reports and concluded that the evidence supported ankylosing spondylitis as the likely predominant cause of incapacity, but not necessarily the only cause. An MRI scan was recommended to ascertain any disc prolapse not showing on X-ray. The MRI scan report indicates degenerative disc changes at the three lower lumbar levels contributed to by facet joint degeneration. At L5/S1 there is a disc protrusion. Mr Griffin commented that the MRI scan supported his diagnosis of disc damage. 4 Mr Rajapakshancluded that Mr Burton had degenerative spondylosis which was likely to be exacerbated by minor trauma. Mr Fong gave three possible scenarios. The first is that Mr Burton has ankylosing spondylitis. The second is that he has a lumbar disc problem. The third is that he has both." 5. The Review Officer then referred to the Act and relevant case authorities - particularly Burke (198/98) which I deal with below, and gave his reasons for decision as follows: "Firstly, there is no doubt that Mr Burton is incapacitated. The evidence clearly establishes that he is unable to return to his pre-accident employment as a panelbeater. The question remains whether the cause of the incapacity is the injury suffered in 1992, being the personal injury for which cover has been afforded, or a degenerative condition. One submission put forward by Mr Rennie was that the 'egg-shell skull' principle could be applied. That is, the trauma aggravated a degenerative condition. I cannot accept that argument in light of the finding in Burke and others quoted above. Although those decisions focus on cover rather than entitlements, as is the case here, the principle remains the same. The fact that trauma may aggravate a degenerative condition, even if dormant at the time, does not lead to cover for that condition itself. Thus, the crux of this decision must focus on whether the incapacity is due to the trauma or a degenerative condition. As this is a medical question I must rely heavily on the medical evidence. The Corporation contends that Mr Burton suffers from ankylosing spondylitis, or some similar condition. Medically ankylosing means stiffening of the spine and spondylitis means inflammation of the spine. The medical opinion on whether this is present varies. This can be divided into two groups, those who have examined Mr Burton and those who have only viewed the documentation. Without demeaning the credentials of those who have only viewed the various reports, I find that more weight must be placed with those who have had the benefit of a full examination. That includes Mr Fong, Mr Griffin, and Mr Rajapaks Mr Fong initially considered the present condition to be due to ankylosing spondylitis. Following further tests, including the MRI scan, he found it most likely that Mr Burton had both ankylosing spondylitis and a lumbar disc problem. Mr Rajapakshaoncluded that mechanical back pain is not the sole cause, but may be contributing in the presence_of a spondyloctic condition. He also noted that the New York criteria relied upon by Dr Burry are not mandatory for a diagnosis of ankylosing spondylitis. Mr Griffin concludes that the MRI scan supports disc damage. It is noted that the MRI scan indicates both degenerative damage and a disc protrusion. As noted in the cases of Hyde and Hughes, the onus lies with the applicant to prove that his incapacity has arisen from trauma. The test is on the balance of probabilities. As also noted, there is a wide range of diverging medical opinion. On the totality of the evidence I find that the 5 onus has not been fully discharged. Therefore, the application for review must fail. The application for review is unsuccessful." 6. Frankly, one cannot disagree with the balanced approach of the Review Officer. The Law 7. Section 10(1) of the 1992 Act states: '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 ..." 8. Section 37A(2) of the 1992 Act states: "37A Determination of incapacity in relation to earners generally ... (2) 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." 9. In ARCIC v Burke (198/98) Beattie DCJ considered a case where a claimant injured her back in an accident in 1996 for which she received weekly compensation until March 1997. Then the Corporation ceased the payments on the basis of a specialist's opinion that the incapacity was due to a pre-existing condition, spondylolisthesis of the spine. His Honour stated (at p16): "Therefore for the purposes of s. 10 the medical question that needs to be asked and answered is whether the injury, or the present effects of same, are as a consequence of accident or gradual process, disease, infection, or the ageing process. If it is any of the latter there can be no cover. In the present case the respondent has a pre-existing degenerative condition known as spondylolisthesis. That condition has not been caused by an accident within the meaning of that word in the Act. The trauma of the fall did not cause the spondylolisthesis, what it did do, as Mr Cowley stated, is that it stirred it up. That is, caused it to become symptomatic. -.- 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 suchlike, medical opinion would likely be that it was as much a contributing cause and the claimant would be entitled to cover 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 6 ongoing problem, then at that time the claimant was no longer entitled to cover under the Act by virtue of s. 10. For the purpose of the ARCI Act a degenerative condition cannot be regarded as an example of an "eggshell skull". The degenerative condition is a disease whereas the "eggshell skull" would need to be a natural physical condition which simply makes a person more susceptible to injury. That latter factor is not a consideration under the Act. A person is entitled to compensation for the full extent of injury suffered by accident, however naturally frail they may be. Whilst it is correct that a victim must be taken as he/she is found, if that victim is found with some pre-existing condition that is excluded by s. 10, the ongoing effects of that condition cannot be a basis for cover." 10. The issue for the purposes of s. 10 is therefore whether or not the symptoms complained of by the appellant are "caused wholly or substantially" by an accident, or by "gradual process, disease, or infection". If there is evidence of both an accident and a "gradual process, disease, or infection" as contributing factors to the condition, then the issue will be which is the substantial cause - accident or the gradual process disease, or infection? 11. If the contribution of (or cause from) the accident has either ceased or is only minor or insubstantial, then cover for the ongoing condition will be excluded under s. 10. Reasons for Decision 12. I shall deal with the salient submissions from each counsel. 13. As Mr Rennie said, this case relates to the respondent's decision of 23 January 1998 to decline the appellant entitlement to ongoing weekly compensation or backdating of weekly compensation, on the basis that ongoing problems were not the result of his back injury in 1992. Mr Rennie had referred to an injury to the appellant at school in 1974 and to the nature of his panelbeating work in 1991 putting stress on his back, but I do not see what relevance all that has to the present issue. Mr Rennie, as did Ms Ahern, took me through most of the medical reports. 14. Mr Rennie submits that the decision of the Review Officer is wrong in law and against the weight of the medical evidence. I do not accept either limb of that submission, but I agree with Mr Rennie that the issues in this case are threefold, namely: Whether the appellant's incapacity is wholly or substantially due to ankylosing spondylitis or other degenerative conditions or, is a result of personal injury by accident; and 2 Whether the appellant has discharged the onus of proving on a balance of probabilities that his incapacity is not wholly or substantially due to a degenerative condition; and 3 Whether the Review Officer was correct in holding that the egg-shell skull principle had no application to a degenerative condition. 15. I see little point in traversing yet again the saga of the medical reports. That has been done on behalf of both parties before the Review Officer, by the Review Officer and by both counsel in detail at the rehearing before me. realise there was further comment from Dr Burry on 19 January 1999 and Dr Brown, the respondent's Wellington Branch medical adviser, on 9 February 1999. 16. I agree with Mr Rennie that there is a divergence of medical opinion on whether the appellant's incapacity is substantially caused by ankylosing spondylitis or trauma of an accident. I certainly agree with the principle in Barnsley v ARCIC (68/99) where this Court held that controversy among medical professionals as to the nature or cause of a condition should not prevent a Court from attributing cause and the matter is to be approached in a common-sense manner, and involves weighing up the specific facts and evidence in the case. My problem is that from any approach ie from the medical reports, common-sense or whatever, I cannot be sure, on the balance of probabilities, what is the substantive cause of the appellant's present and ongoing back condition; although it seems very likely to me to be due to a degenerative condition. Mr Rennie submits that I should follow Collison v ARCIC (59/99) but there the Court was able to find from the medical evidence that the degeneration in the appellant's back was a direct result of trauma sustained in his two accidents so that s. 10 was not applicable and could not be used to exclude cover. I have found that the medical evidence in this case is inconclusive. I disagree with Mr Rennie that the evidence indicates overall, that the 1992 accident and previous accidents have exacerbated his back condition. The medical evidence is not at all clear even though some doctors/specialists support the appellant's case and exclude ankylosing spondylitis as the cause of the appellant's back condition, but indicate that the current degenerative condition is consistent with disc damage some years before. 17. Mr Rennie refers to there being consensus among the medical professionals that mechanical events (trauma) have caused or contributed to the appellant's back pain and that this is supported by an MRI scan; yet on the other hand, there is disagreement among the medical professionals as to whether the appellant is, in fact, suffering from ankylosing spondylitis. He submits that the latter diagnosis is not supported by X-rays, bone scan, MRI scan or blood tests but is supported by the HLA-B27. 18. Mr Rennie submitted that the Review Officer was wrong to place more weight on the evidence of the medical professionals who had examined the appellant namely Mr Fong, Mr Griffin and Dr Rajapakshawever, that seems to me to be a reasonable enough approach of the Review Officer who, in any case, looked at the medical evidence overall. 19. Both counsel referred to Burke and the egg-shell skull principle. However, one could not disagree with Judge Beattie in Burke that the real issue is the cause of incapacity. If that cause is a degenerative condition, then cover is precluded by s. 10 of the Act. It follows that the egg-shell skull principle cannot apply to the present type of situation. I respectfully endorse the content of the above 8 statement from Judge Beattie in Burke. I accept that in the present case there is no agreement among the medical professionals that ankylosing spondylitis, i.e. a degenerative condition, is the substantial cause of the appellant's incapacity or even whether that condition is present. However, I do not see how the egg-shell skull principle could possibly be applied, or relied on, if it is not clear what weakness the claimant has, nor what the effect of any such weakness would be. Mr Rennie seemed to be submitting that the egg-shell skull principle should apply in the present case because although the appellant's various accidents prior to 1992 had resulted in the manifestation of symptoms, he had otherwise been largely symptom-free and worked as a panelbeater doing demanding physical work. It is not apparent to me what that approach has to do with the egg-shell skull principle. That approach would seem to indicate that, but for the 1992 accident, the claimant could only have become incapacitated eventually (if at all) from his degenerative back condition. . I am conscious that Mr Rennie relied on an analysis of the opinions of some of the medical professionals which are favourable to the appellant. But, overall, the medical evidence is inconclusive. 21. As I indicated at the hearing this type of case troubles me in that one is unable to ascertain whether the ongoing back injuries of the appellant are caused by a degenerative condition, or whether the accident/trauma has simply brought to light a degenerative condition which, otherwise, may never have troubled the appellant. The egg-shell skull principle that you must take the worker as you find him cannot be applied if one does not know the cause or effect of the injury and for the reasons outlined by Judge Beattie in Burke. The appellant must establish on the balance of probabilities that the symptoms causing his current incapacity have been caused by the 1992 injury for which he has cover. 22. It seems to me that a common-sense review of the medical evidence shows that the appellant suffers from a degenerative disease which is either lumbar spondylosis or spondylitis, which is the cause of his symptoms, and not trauma. Dr Monigatti has referred to it as being the predominant cause. Dr Rajapaks has called it the main cause, and has also noted that the symptoms suffered are unlikely to have been caused by the 1992 injury. It seems that that injury may contribute to the appellant's pain but is not the substantial cause of it, so that the appellant is not entitled to cover under the Act. The evidence shows that the 1992 injury resulted in back strain which did not heal as it should have and there was soon an identification of a degenerative back problem. The appellant's original diagnosis from his GP was confirmed not only by the specialist who saw the appellant at the time (Dr Rajapakshat also Mr Fong, Dr Monigatti and the BMA, Dr Brown. The MRI scan brought to light a further degeneration in the appellant's spine. 23. It is clear from the many medical reports that the 1992 injury, which caused muscle spasms, is unlikely to be the main cause of the appellant's ongoing back condition. As already indicated I think it appropriate for the Review Officer to have placed greater weight on the evidence of Dr Rajapaksha is a specialist and who had the opportunity to examine the appellant shortly after the 1992 injury. Also, insofar as it is submitted for the appellant that insufficient weight has been given to the evidence of Dr Hochberg, the appellant's GP, his clinical 9 notes made at the time of the injury show that the injury should have healed but that there was degenerative disease at the time. 24. As Ms Ahern submits, no matter how one interprets the many medical diagnoses, it is clear that the appellant suffers from a degenerative condition. I add that it is clear that the appellant has suffered from that condition throughout this saga from 1992 and that condition is a substantial cause of the appellant's suffering. 25. It is always a concern to me that a degenerative condition which appears to have been stirred up by an accident, and which continues to trouble the claimant when the accident injuries have healed, might never have troubled the claimant but for the accident. It seems to be a fine line to decide whether the ongoing pain and suffering is caused by the accident or by the degenerative condition. Generally, one can only rely on expert medical evidence to decide the appropriate cause in a particular case. One needs to examine all the facts of a particular case rather than rely on general principles from other case authorities. Here, as is so often the case, there is much varied medical evidence which, overall, appears to the Court to be inconclusive. Since it is clear and settled law that the onus of proof is on the claimant and that the standard of proof is the balance of probabilities, if the Court is left with the view that the evidence is inconclusive, it follows that the claimant cannot prove his case, so that the appeal must fail. 26. Regrettably for the appellant, when I stand back and look at the overall evidence in this case I find, on the balance of probabilities, that the appellant suffered a trauma accident to his back in 1992 which was expected to settle in the usual way but that ,in investigating his lack of recovery,a degenerative disease of his back was ascertained. One can only conclude that the appellant's current condition is caused mainly by that degenerative disease and not by the 1992 injury. It follows that the appellant cannot establish on the balance of probabilities that his current symptoms are due to the 1992 injury. Accordingly this appeal is hereby dismissed. Judge P F Barber District Court Judge Wellington DCA148-99.doc(aw)