Yuile v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 2 /2001 Al 228/2000 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 158 of the Act BETWEEN IAN CLIFFORD YUILE of Otaki Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 11 October 2000 DATE OF DECISION 12 January 2001 APPEARANCES The appellant on his own behalf Mrs C B Grover for respondent DECISION OF JUDGE P F BARBER The Issue [1] The issue is the correctness of the respondent's 25 November 1999 decision ceasing the appellant's compensation on the basis that his ongoing incapacity was not related to the personal injury for which he had cover. Background [2] On 26 January 1993 the appellant sustained two falls. The appellant attended his General Practitioner ("GP"), Doctor Greig, who diagnosed a strained back and neck muscles. [3] The respondent granted cover to the appellant who has received various entitlements, including weekly compensation, since that time. [4] The appellant has seen various medical specialists over the life of his claim. 2 [5] MrFong, orthopaedic surgeon, provided a report dated 18 March 1993. He described the accident and resulting injuries as follows: "This gentleman has a history of a fall down a couple of steps on 26 January 1993 sustaining an injury to his cervical spine with pain radiating down his right shoulder and right arm. This was followed on the same day by a further slip at work, landing on his buttock sustaining an injury to his lower back with low back pain radiating down his left leg. This was not helped by non steroidal anti-inflammatories and the physiotherapy he had." [6] On 20 May 1994 Doctor Fong provided a further report in respect of the appellant. The report advised, inter alia: "The scan confirms the L3/4 and L5/S1 discs are normal but there is a small central disc protrusion at the L4/5 level .... However, he is now complaining of increasing symptoms of his neck and wishes to have a CT scan of his neck. I can not find any obvious neurological signs in his neck and the xray of his cervical spine done on 22 March 1993 revealed no bony abnormality. I do not feel he has enough indication in his cervical spine to warrant a CT scan and I have explained this to him." [7] The appellant also attended Mr Martin an orthopaedic surgeon who by report dated 28 March 1996 concluded: "I do not think the amount of trauma Mr Yuile describes could account for 3 years of disability and troubles in his cervical and lumbar spine There is a considerable time gap of some days between the trauma and the onset of the disability. There is no clinical or radiological evidence of specific injury to the spine then or now. There is considerable evidence of depression and high alcohol intake and physical disability due to obesity, which I would consider medical and personality problems, not the result of trauma. In addition, some of his responses are incompatible with the normal response to pain arising from the spine." [8] The appellant also attended a neurologist, Doctor Haas who by report of 8 July 1997 advised: "I didn't have a clear structural explanation for his pain. I did wonder whether the sensory symptoms in his hands were due to carpal tunnel. The patient had a series of investigations including nerve conduction studies which showed the presence of bilateral carpal tunnels. We arranged for an MR of his cervical and lumbar spine but because of the patient's size, imaging was not possible but given the total picture and we 3 had established carpal tunnels as a possible cause for the sensory symptoms in his hands, ... I don't have a clear diagnosis for his pain. The sensory symptoms in his hand may be helped by a carpal tunnel relief and it may be some other more proximal pain in the right upper limb related to the calcific tendonitis as seen on his right should (sic) x-ray.' [9] Mr Fong also provided a report dated 23 February 1998 where he assessed the appellant's permanent impairment using the American Medical Association ("AMA") guide. Mr Fong advised: "Paid 113 Section 2 - intervertebral disc and soft tissue lesions unoperated on and stable, medically documented injury with pain and rigidity associated with degenerative changes with herniation with or without radiculopathy of the cervical spine to be 6% and lumbar spine of 7%, a combined total of 13% of whole person." [10] The appellant attended orthopaedic specialist Mr Welsh who provided a report dated 16 March 1999 advising that: "IMPRESSION: Mr Yuile presents at this time with ongoing pain experience arising from simple strain injury to his neck and back, arising subsequent to incidents described on 26 January 1993. It was not defined show overt neuromascular or musculoskeletal injury process. His presentation is best described as one of a chronic pain syndrome with pain affective behaviour. OPINION: It would be seen that the symptoms described are otherwise subsequent to the incident of 26 January 1993. One would, in the normal course of events, expect any injury process affect to have long resolved, but unfortunately the impact of the instance has not been seen to be so. Given Mr Yuile's presentation, one would not see him as able to sustain return to full time work, and one does not see likelihood of benefit from any further rehabilitation effort. This chronic pain process is too long established. Mr Yuile's pattern of behaviour is so ingrained, that efforts would be self-defeating. It is to be emphasised that Mr Yuile's limitations are seen as behavioural, rather than engendered by specific injury processa In that regard, one would agree with the assessment in terms of the physical component of his problems, as being similar to that defined by Mr Fong in his letter of February 1998." [11] However, on 24 June 1999 Dr Christian provided a report which diagnosed chronic pain syndrome. Dr Christian used the four criteria from the 1998 consensus meeting on fibromyalgia, stating: "1. The disc prolapse has healed over the past 6 years, leaving lan with chronic pain. 2. The chronic pain was not present prior to the accident and injury. 3. lan suffered a disc prolapse whilst at work, related to heavy lifting and bending, followed by a fall. There are now no objective signs of any nerve damage that can be related to a disc prolapse. Therefore, lan would fit the above criteria." [12] The respondent referred the appellant's file to Dr Monigatti, ACC Workwise, for his review. Doctor Monigatti provided a report dated 4 November 1999 which advised: "Apart from the carpal tunnel syndrome (which no longer seems to be a problem), the only pathology demonstrated in Mr Yuile's case was the small lumbar disc prolapse that neither Doctor Haast nor Mr Martin considered significant. There is no evidence that this was caused by a fall in 1993, Mr Yuile had no significant low back pain until a month afterwards, and there have never been any signs of nerve root irritation secondary to a disc prolapse. The L4/5 lesion may, or may not, still be present. Neurological or radiological evidence of this cervical disc prolapse has been consistently absent. I cannot agree with Doctor Christian that the criteria for post-traumatic syndrome are met except for (2). Mr Yuile's chronic pain state is, in my view, non-compensable. Even if it were, the report of Mr Welsh and Mr Martin indicated that Mr Yuile exaggerates his symptoms and incapacity and has a marked illness belief. I accept their views that Mr Yuile's disability is related more to medical and behavioural factors than to any injury he may have suffered in 1993. Accordingly, I find that there are insufficient medical grounds to warrant continuation of cover." The Law [13] Section 116(1) of the Accident Insurance Act 1998 states: "(1) An insurer may suspend a statutory entitlement if it is not satisfied, on the basis of the information in its possession, that an insured is entitled to continue to receive the statutory entitlement." [14] In Shaw v ARCIC (17/2000) His Honour Judge Beattie considered the respondent's ability to cancel a claimant's entitlement to compensation and noted at page 14 of the decision: "It is the situation however that section 10 need not be resorted to when cancellation of entitlement is contemplated because, as I have indicated, it is implicit in the granting of cover that the cover is granted for a qualifying personal injury by accident and it is only whilst that qualifying injury subsists that cover can continue. If injury is found to be no longer by accident but from some other cause, then there can be no ongoing cover because the basis for it no longer exists. The ongoing symptoms or malady is something other than the personal injury that originated in the accident." 5 [15] In Gush v ACC (223/00) Judge Beattie considered whether provisions of the 1982 Act or the 1998 Act applied to a transitional claimant whose compensation had been ceased and /stated at page 7 of his decision: "Conversely, I find that the issue in this appeal is one that is determinable by posing the question as to whether this appellant is still suffering from the effects of the personal injury by accident for which she was granted cover. That question does not need to take into account the exclusionary provisions of the 1998 Act definition of personal injury or the definition contained in the 1982 Act where the exclusionary provision has changed from the position where personal injury caused wholly or substantially by the ageing process, disease or infection as now was formerly required to be exclusively under the 1982 Act The medical evidence is clear that the appellant's present physical condition is not attributable to the personal injury by accident and once that finding of fact is made then one need have no regard of the exclusionary provisions as it is a basic tenant of continuing entitlement under the Act that the entitlement arises because of the fact that the claimant is still suffering from the personal injury by accident for which cover was granted. If that state of affairs cannot be established at any time an entitlement is sought, or when the claimant's medical position is examined by the respondent and found to be not so complying, then the whole basis for continuing entitlement has ceased to be." Reasons for Decision [16] The onus in this appeal is on the appellant to show that the respondent has made an error in determining that the appellant is no longer entitled to compensation under the provisions of the relevant legislation. [17] It is fundamental to his receipt of any entitlement for compensation under the Act that the appellant is still suffering the effects of the personal injury for which the compensation is sought. In the present case, the respondent's decision to cease further entitlements to the appellant was based on the fact that it did not consider that the appellant's ongoing condition could be attributed to a personal injury for which he had initially been granted cover. Accordingly, the respondent determined that the appellant did not meet the criteria for any of the entitlements available under the provisions of the relevant legislation. [18] The appellant has submitted that the respondent must identify a statutory power to suspend entitlement. Section 116(1) (set out above) is the applicable provision. However, the respondent need not rely on that provision in order to make its decision. The respondent's decision was entitled to be based on the over-arching principle that cover is only available for the ongoing effects of personal injury. In particular, I refer to Judge Beattie's comments in Shaw noted above. As the appellant no longer has a qualifying personal injury which entitles him to compensation, it is implicit that the respondent is able to cancel his entitlements. [19] The medical evidence on file indicates that the appellant is suffering some form of pain syndrome and/or pain affected behaviour. This pain syndrome and/or pain behaviour is not causally related to the back and neck strain for which the 6 appellant was originally given cover in 1993. While there is a large amount of medical opinion and evidence on the appellant's file, the relevant comments are those which deal with causation. [20] It is not disputed that Mr Fong's reporting of a small central disc protrusion at the 14/5 level, or the symptoms in the appellant's right shoulder, arm and lumbar spine as reported in his reports in 1993 and 1994 are correct. Further, it is not disputed that Mr Fong's independence allowance assessment resulting in a 13% whole person impairment is correct. However, the reports from Mr Fong do not address the issue of the causal relationship between the appellant's injury in January 1993 and his ongoing incapacity from the end of November 1999. [21] The first report which deals with the issue of causation between injury and ongoing incapacity is that from Mr Martin dated 28 March 1996. In that report Mr Martin is quite clear that he does not consider the trauma that the appellant sustained in 1993 could account for the ongoing disability in his cervical and lumbar spine. Mr Martin provides a number of reasons for his opinion including, the amount of trauma originally incurred by the appellant, the time delay between the trauma and the onset of disability, the lack of definitive clinical or radiological evidence of a specific injury to the spine, and the evidence of depression, alcohol intake, and disability due to obesity which are not the result of trauma. [22] The appellant has indicated he disagrees with Mr Martin's report of March 1996. However, the appellant's concerns with Mr Martin's report are in relation to Mr Martin's medical interpretation of the facts given to him, not any dispute over whether or not the facts recorded by Mr Martin are correct. Mr Martin is suitably qualified to have reached the interpretations he has on the facts given to him. [23] Dr Haas' report in July 1997 records that the small disc prolapse in the lumbar spine is probably not relevant to the appellant's symptoms. Dr Haas did not have a clear explanation or diagnosis for the appellant's pain, but considered that there may be some form of carpal tunnel syndrome. Dr Haas' report does not support a causal relationship between the appellant's injury in 1993 to neck and back and his ongoing pain. Also, the appellant does not have cover for carpal tunnel syndrome and any incapacity in relation to this condition is not covered by ACC. There is no suggestion (nor evidence) that the c.p.s. could, somehow, flow from the 1993 accidents. [24] Mr Welsh's report in March 1999 concluded that the appellant's limitations were seen as behavioural, rather than engendered by any specific injury process. The opinions of two orthopaedic surgeons, Mr Martin and Mr Welsh, together with the opinion of neurologist Dr Haas that the appellant's ongoing pain and incapacity is not causally related to his injury in 1993, must be given considerable weight. [25] The only medical professional who supports a causal relationship between the appellant's injury and his ongoing incapacity is Dr Christian, a general practitioner specialising in occupational and environmental medicine. It is his opinion that the appellant is suffering a chronic pain syndrome as a result of his original injury. 7 [26] Dry Monigatti, occupational physician, ACC Workwise, has directly commented on Dr Christian's analysis of the criteria for post-traumatic chronic pain syndrome. Dr Monigatti states that he does not agree with Dr Christian that the criteria for post-traumatic chronic pain syndrome has been met in the appellant's case [27] The relationship between the appellant's injury and his ongoing pain must be considered in light of Mr Martin's and Mr Welsh's indications that the appellant exaggerates his symptoms. The issue on appeal is whether the appellant's ongoing incapacity is causally related to his personal injury. The evidence from Mr Martin and Mr Welsh that the appellant exaggerates his symptoms must raise some doubt as to the relationship between his injury and the incapacity. [28] The appellant's written submissions request reimbursement of the costs of representation up to now. [29] The appellant has already received an award of costs in relation to expenses incurred in preparing for the review hearing. The Reviewer awarded the appellant $315.00 towards representation costs following the review hearing. This is the maximum award possible under the Accident Insurance (Review Costs and Appeals) Regulations 1999. Referring to Schedule 1 of those Regulations, the appellant appears to have been awarded the following: Preparation and lodging of application for review: $75.00 Other preparation of case for review $145.00 Appearing at hearing on behalf of applicant, first hour of hearing $95.00 $315.00 [30] Therefore, the only costs to which the appellant could have been entitled, if he had been successful in this appeal, are those which were incurred following the Review Hearing. The notice of appeal was lodged by the appellant's solicitor, but he has since represented himself in relation to this appeal. In any case, this appeal fails. [31] The appellant has also requested reimbursement for the costs of a scan taken in June 2000. The respondent has no responsibility for these costs as they were incurred after the appellant's entitlements ceased. Conclusion -[32] The issue in this appeal is whether there is a causal relationship between the appellant's ongoing pain and the injuries for which he was given cover in 1993. The overwhelming weight of the medical evidence indicates that there is no such causal relationship. In order to receive ongoing compensation from the respondent the appellant must be suffering the effects of personal injury, and in the current case there is no convincing evidence to this effect but, rather, to the contrary. [33] I have, of course, given careful thought to the written submission of the appellant and to his oral submissions to me at the hearing. I am conscious of the intense pain he seems to be suffering, but I can only deal on the evidence with the issue of whether the medical evidence supports a causal relationship ... " 8 between his injury and his present suffering. When I stand back and look at the evidence overall, objectively, and on the balance of probability, there does not now seem to be any such nexus. It follows that the respondent must exercise its power to suspend benefits under the Act, as it has done. I can accept, of course, that the appellant is in pain, apparently at the top of his back and that he believes it started from his said injury. Unfortunately, the medical evidence overall does not substantiate that assessment. [34] It is of concern to me to learn from the appellant that, apparently, in one year he had 10 case managers. If that is correct it is hardly conducive to recovery and rehabilitation. [35] For the above reasons this appeal is hereby dismissed. Judge P F Barber District Court Judge Wellington Al288-00.doc (md/J9)