Wells v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 82/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND $7 /94/ 05 77 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN IAN WELLS of Hector via Westport Appellant (Appeal No. DCA 278/ 95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr MM Bell for the appellant and from Ms GS Hancock for the respondent with the request that I issue a decision on the papers. The issue is the decision of the respondent issued on 5 October 1993 declining further liability in respect of the appellant's claim for personal injury arising out of an accident on 21 April 1991. The appellant is now aged 42 and injured his back on 21 April 1991 when he tripped and fell while removing a trailer from his car. The appellant at that time was employed as a Telecom linesman. He was examined by Mr D J Jones, an orthopaedic surgeon, whose report of 24 October 1991 gave as his opinion: 'Opinion: This fellow has a minor structural anomaly at the lumbo-sacral junction which was exposed to a significant rotational force when he was shifting a trailer laden with shingle on the 21 April 1991. 2 His disability some six months later continues, unrelieved by any treatment offered to date and I think one must assume at six months, spontaneous remission of symptoms is unlikely in the near future. For this reason I think it is unlikely that he will return to work as a telecom linesman which involves considerable dexterity, physical agility, fitness, because of the wide range of skills required. I believe this man is capable of selected light work currently. There does not appear to be any selected light work available for him as a telecom. I think it would therefore be appropriate that a review of his situation in terms of retraining is considered in the hope of establishing him in some alternative lighter work longterm. I believe he will be left with a permanent disability for which he has an entitlement. It would be logical to proceed with a Ct scan evaluation of his low back at this point to identify if there is any other structural lesion. If the remainder of the scan were normal it is possible that he would be improved with simple posterior lumbo-sacral fusion but I doubt if he would get back to heavy physical work as a telecom technician as a result. I would consider he had an assessable claim in terms of Section 78." On 9 December 1991 following the proposed CT scan Mr Jones reported: "The Ct scan on the above performed at St. George's Hospital on the 9 December 1991 has shown that there are wear changes occurring at the lumbo-sacral facets. There is as confirmed a minor bifid anomaly on the first part of sacrum. There is no obvious prolapse within the canal. I am sure this fellow when he injured his back damaged the posterior complex at the lumbo-sacral junction and it is this level which is responsible for his ongoing chronic disability. In my view he really has only two alternatives. The first is that he lives with his problem. The second option is that the lumbo-sacral junction is stabilised with a simple posterior fusion but he is particularly keen on considering that option. There is certainly nothing else that is logical in the way of treatment other than time and rest. There is certainly no other physical treatments which are likely to make any impact on is problem." In September 1992, through his advocate, the appellant made submissions in support of an award under s.79 of the Accident Compensation Act 1982. He submitted that prior to the accident he had no problems with his back, but now has a slight to severe pain down to his legs and ankles, particularly in cold 3 weather. He has difficulty stooping and crouching and cannot undertake long walks, especially on uneven ground. Following the accident he had had to take two months off work, but then again resumed his occupation with Telecom, but was placed on light work assisting the fault-man. He does, however, have trouble while driving long distances. He also stated that he found difficulty in doing simple household chores and was unable to continue his pursuits of shooting, tramping and bush-walking. This has caused him considerable distress. Before making a decision on lump sum awards the respondent arranged for the appellant to be examined by Mr J Talbot, an orthopaedic surgeon, whose report of 5 February 1993 states: "History: Mr Wells states that he injured his lower back when he fell over onto his back. He mentions that, in spite of Mr Jones's report, he did not suffer a rotational injury, and the trailer with which he was working was empty and incidental to the fall. Ever since the fall on his back he has had low back pain with radiation of pain into both his legs, sometimes as far as his feet. He has not been able to work since the accident. He hotly denies ever having had a back problem prior to the 21.4.91 accident. I think that his past history is worth mentioning. He injured his right hip badly at the age of 16 in a car accident. He says that he sustained multiple fractures including his pelvis and the head of his femur. He also apparently sustained a major head injury in the accident after which he spent eight weeks in Nelson Hospital. He states that following this accident, he was off work for five years between the ages of 16 and 21. He then slowly got back into the workforce. He admits that his right hip is abnormal, and has given him problems because of pain and stiffness, particularly in cold weather, but he is adamant that he had always managed to work prior to the back injury in April 1991 in spite of his hip. Mr Wells lives by himself and says that he has to do all his housework, and this really aggravates his back trouble. He says that, on some days he can not (sic) do any housework at all because his back is so bad. He says that usually, by the time he has done all the housework, he has ' had it,' and then he needs to go and lie down for 3-4 hours to let his back recover from the housework. He states very firmly that he felt that the trial of clerical work at Valuation New Zealand which was arranged for him was an unreasonable act on the ACC's part. He points out that after doing his housework he would be in far too much pain to go and sit down for two hours doing a clerical job. Apparently he lies down for one to four hours nearly every day in the afternoon. He says that his back pain impairs his concentration so this is another reason that he could not do a clerical job. He also says that the pills that he takes to kill the pain in his back makes him feel sick and generally unwell. His back pain wakes him at night. He considers that he is completely unemployable, but he hopes that he will be kept on an ACC benefit until he is aged 60. 4 ON EXAMINATION: He seemed generally 'brassed off,' with the ACC and with me and with his back, and with the whole world in general. He moved slowly with an obvious antalgic gait on the left leg. This was rather surprising as it is his right hip which is the arthritic one. Forward flexion fingertips to raising to 45 degrees on each side. His right hip movements are as follows with left hip movements in brackets. Flexion - 90 (130), abduction - 30 (60), external rotation - 45 (60), internal rotation - minus 20 degrees (30). There is half a centimetre of shortening of the right leg. No obvious muscle wasting. Extremes of all movements of the right hip appear to produce some pain. There are no neurological abnormalities in either leg. There is a small 2cm long transverse scar centrally overlying the lower sacrum, and apparently the result of his accident when he was aged 16. XRAYS: Lumbosacral spine, St Georges Hospital, 9.12.91: There are degenerative changes in the posterior facet joints, particularly on the left side at the L3-4 and L4-5 levels. No disc prolapse or nerve root abnormalities are seen in the CT scan of 9.12.91. Buller Hospital hip xrays, 11.6.91 reveal moderately severe degenerative changes in the right hip joint which ar (sic) apparently the result of previous fractures of the acetabulum and the superior part of the femoral head. OPINION: 1. Diagnosis. Mr Wells injured his back in the April 1991 accident, and he maintains that he had no back trouble whatsoever until that fall. In spite of that, degenerative changes are certainly present on the xray, more severe than one would usually see in a 38 year old man. In view of the severe accident he had when he was aged 16, and the multiple injuries, one would have to suppose that some of these degenerative changes may be the aftermath of this accident, although he hotly denies any pre existing back trouble. Certainly, his complaints of back problems are out of proportion of what one would expect from the examination and xray appearances, but as I frequently have to say, one is unable to measure the patients severity of pain, and everybody's appreciation of pain differs. You asked whether there are other factors contributing to his present degree of impairment. I would certainly expect a right hip like he has to be markedly contributing to his physical impairment. Again, Mr Wells hotly denies this, and says that his hip gives him very little trouble and all his pain comes from his back virtually. I can not (sic) call him a liar, but suffice it to say that most people with a hip like this are in quite severe pain and on the waiting list for a hip replacement. I would certainly have felt that his hip was a definite contributory factor in his inability to work. 2. Prognosis including degree of impairment. I think his prognosis is very poor until his attitude can be changed. He has no desire to work or even to do a two hour trial of sedentary work. He has the idea that he has to go and lie down every afternoon because his back is so sore after doing the housework, and until his can be persuaded that sitting down in a comfortable chair for two hours was possible, he will be unemployable. 5 3. Possible treatment. The only possible treatment which I think would enable this man to have a reduced level of incapacity would be some sort of multi-disciplinary rehabilitation such as the Musculoskeletal Unit at Burwood Hospital. I honestly feel that a clinical psychologist could help Mr Wells more than anybody at the moment in learning to cope with his pain and live with it. I think any sort of surgery or medical treatment or physiotherapy is probably a waste of time at the moment, although in due course he will almost certainly need a right hip replacement. 4. I read Mr Wells's Quest report which you sent me. I felt that it was an excellent report undertaken by a thorough, caring and reasonable person who was 'bending over backwards' to help Mr Wells. I think that the employment options outlined under the heading d) Job Path Plan were reasonable. Would it be too hard on Mr Wells to suggest to him that the tax payer will go on paying him his ACC benefit only if he at least attempts the plan put forward by the career consultant? I can only repeat that, having read the Quest report, Mr Wells is being treated very reasonably by ACC. Still, in spite of this, he seems to have such a huge chip on his shoulder at the moment, that unless his attitude can be modified, he is not even going to attempt a work trial. Therefore, perhaps I might suggest a referral to the residential course run by the Musculoskeletal Unit at Burwood Hospital in the slim hope that they might make him a little more amenable to the help that the ACC are offering him." In answer to a query from the respondent Mr Talbot said on the 19 February 1993 that he had doubts whether the appellant qualified for an award under s.78, although he considered a small award could be made under s.79. The respondent sought further information from Mr Talbot and in a letter of 30 March 1993 he stated: "Thank you for your letter of 22.3.93 requesting further information about Mr Wells following my report dated 15.2.93. In reply to your first question, I am unable to find significant evidence to suggest that Mr Wells' present problems and inability to return to work are the result of his injury of 21.4.91. In spite of this, Mr Wells maintains that his back pain dates from that injury. He also denies that his hip is giving him significant problems. I can only repeat what I stated in my report, namely that one would expect a hip which exhibits severe degenerative changes to be given him far more trouble than he says it is. Similarly, one would not normally expect a back like his to be causing as much pain as he claims, although one can not (sic) measure pain and every person has a different response to pain. You ask about the degenerative changes in the posterior facet joints. These, in my opinion, almost certainly predate the 1991 injury. It is difficult to imagine that this sort of degenerative change could have taken place in the seven months approximately between the accident and the xrays and CT scans which revealed the degenerative changes. I would therefore feel that the degenerative changes in the posterior facet joints predate the 1991 injury. It must still be mentioned that one frequently sees a patient with degenerative changes in a particular joint which honestly appeared to be causing no trouble at all until an accident or an incident such as Mr Wells describes which seem to unmask or bring to light the symptoms of previously asymptomatic degenerative arthritis. There is no clinical or radiological evidence to support Mr Wells' claim that he injured his back on 21.4.91 apart from the degenerative changes which could possibly have been rendered symptomatic by the accident. It is certainly possible that Mr Wells could be suffering disability from pain in relation to his earlier accident, whether or not he suffered an injury in 1991. However, as I also mentioned before in my earlier report, Mr Wells strenuously denied that he had much pain until the 1991 accident. I am afraid that you can not (sic) just look at an xray and state that the patient should be suffering pain, because sometimes the patient's pain seems to bear no relationship at all to the severity or otherwise of the degenerative change. I share your curiosity about the reason for his having had his hip xrayed on 11.6.91. I am afraid that the Buller Hospital xrays have been sent back to where they were taken, so I can be a doctor's request form in his xray packet which would provide the answer to this question. I feel the most likely reason that he had his hip xrayed was that his doctor wanted to know whether his pain was referred from his back, or his hip, bearing in mind his previous hip injury." On 20 May 1993 the appellant was awarded $2,000 under s.79 and no award was made under s.78. On 5 October 1993 the respondent advised the appellant that pursuant to s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 it considered that on the medical evidence available the appellant's then problems were not related to the accident on 21 April 1991 and that further payment of weekly compensation was to cease from 1 November 1993. The appellant applied for a review of that decision on 10 December 1993 On 30 March 1994, the appellant's solicitor submitted a report from Mr B S Mcmillan, an orthopaedic surgeon at Healthcare Otago. Mr Mcmillan's opinion was: "It is my opinion that his present complaints are consistent with and due to degenerative arthritic change affecting the posterior joints at several levels in the lower lumbar spine. In particular, the greater worsening of the pain by bending backwards rather than forwards and its relationship to changeable weather, particularly rain, is more consistent with an origin from this cause than from a prolapsed disc, fracture or ligamentous tearing. These changes were already well-marked on the CT scan taken in December 1991, some either months after his accident. While it is my opinion and experience that such x- 7 ray changes may develop quite quickly, their degree suggests to me that they were already well-established at the time of his accident but could well have caused him little or no symptoms. (The back pain referred to in Mr Lowe's letter of 1971 Mr Wells states referred to pressure on the site of his pressure sore and there is no record in his hospital notes of him having suffered injury to or complained of pain in his back following his major accident in 1970. After recovery from this accident he was able to rehabilitate himself into doing quite heavy physical work including work which would have involved putting significant strain on his back and appears to have lost no time from work because of back complaints. In addition, Dr Strydom's letter records that from August 1985 to April 1991 his notes make no mention of complaints of pain in back or hip. It is therefore my opinion that prior to April 1991 that Mr Wells suffered no significant pain from back or hip and was not significantly limited in his work ability by complaints from either of these sites. While it is my opinion that it is remotely possible that the fall in 1991 might have produced the marked degenerative changes seen on CT scanning some eight months later, that the strong balance of probability is that at the time of the fall he had pre-existing and established degenerative arthritic change in the posterior joints of the lower lumbar spine which were essentially symptom-free, and if not symptom-free did not limit his working ability in any way. It is therefore my opinion that the fall caused symptoms to develop when they did in these previously abnormal joints. It is impossible to say at what stage in subsequent life he would have developed symptoms had it not been for his fall, or even if he would have developed them at all although it is my opinion that within five to ten years it is probable that he would have developed symptoms of a similar nature to those he now complains of had it not been for his fall. With respect to Mr Wells' present impairment of working capacity, he stated today that a work trial in a sedentary job he found unacceptable because having gone to work after doing his housework the sitting caused too much pain. He stated that he was in quite moderate pain today having driven over from the Coast yesterday, yet he sat in the waiting room and in a low chair in a relaxed position with no evidence of experiencing discomfort. He did hold his back stiff when turning to and fro on the examination couch, a finding consistent with him being aware that unguarded movements of the back could cause pain but on examination of the movements of his back movement was unassociated with involuntary paravertebral muscle spasm, indicating that any pain on movement was less than moderate in degree. My opinion would correspond with that expressed by Mr Jones in that while Mr Wells may not be fit to return to work as a linesman that he would be fit for selected work. Such work would ideally allow him to alternate standing and sitting and would not require him to work in confined spaces or constantly bending forwards. Such work would be light store work, retail work and, in my opinion, most forms of clerical work, provided his work station was suitably adjusted so that his back was supported when sitting and he was able to get up 8 and move around at fairly frequent intervals. On this basis, it is my opinion that, as far as his back is concerned he would be physically 80% fit for work. It is my opinion that he would have grounds for a lump sum payment from ACC for the premature development of his back complaints. I would assess the functional disability arising from his back as presently amounting to 10% of total.' The appellant gave evidence at the review hearing that his principal concern was that while he had suffered a serious motor vehicle accident in 1970, he had fully recovered from that accident and had had no back problems whatsoever until after the accident in 1991. He said that he did not dispute that he had a predisposition to a bad back, but the disc had not been triggered until he suffered the accident in 1991. The review officer reviewed the evidence and the various medical reports and found that on the balance of probabilities Mr Talbot's opinion should be preferred. He accepted the appellant's evidence that he had been symptom-free prior to the accident, but that that did not necessarily establish cause and effect and in so stating referred to the decision of the Appeal Authority Crawford (328/89). He declined the application for review. In his submissions Mr Bell has carefully reviewed the various medical reports and has submitted that in considering the conflicting medical opinion the Court must test their weight against the other available evidence. He submitted that the three orthopaedic specialists are the most suited to give supporting opinions and that these should be preferred to those of general practitioners. Mr Bell submitted that the review officer had erred in his consideration of the medical reports because he left open the possibility that the "egg shell skull" principle applied to this appellant. He also raised doubt as to the review officer's analysis of Mr McMillan's opinion that there was a strong probability as to whether the appellant's symptoms would have been exposed in the next 5 to 10 years without an accident and whether the degeneration was pre-existing to the 1991 accident. He submitted that the review officer failed to analyse Mr Jones' reports. Ms Hancock submitted that the primary issue is not whether the appellant has an entitlement under ss.37 and 39 of the Act, but rather whether the respondent was entitled to make the decision it did under s.73. She submitted that the onus is on the appellant to establish on the balance of probabilities that he is entitled to continue to receive weekly earnings. Ms Hancock submitted that as orthopaedic surgeons are the experts in the area in question, more weight should be given to their respective opinions than to those general practitioners. Ms Hancock submitted that while Mr Bell has raised the question of the "egg shell skull" principle that is not the situation which applies here. She submitted that if the "egg shell skull" submission is made by the appellant then that submission must be that the accident in 1970 rendered the appellant particularly susceptible to the second injury, whereas the respondent's view is that the medical experts say that the current problems suffered by the appellant are not due to the second injury, but in 9 fact relate to the first injury. Ms Hancock submitted that the test to be applied is the well tried principle of the "but for" test. This test was referred to in the Estate of David Simmons v ACC (15/95) in which the Appeal Authority stated: "The onus is on the Appellant to provide evidence to show a cause or connection between the overdoes of Digoxin and the death of Mr Simmons. The commonly employed test of causation is the so called 'but for ' test. To establish that an event is causative of damage or injury it must be shown that the damage or injury would not have occurred but for the prior event. In addition it must be established that the event made more than a minimal contribution to the damage or injuries before that event can be said to be causative. Thus it is for the Appellant to establish that but for the overprescription of the drug Digoxin Mr Simmons would not have died. Also it is for the Appellant to establish that if the overprescription of Digoxin is implicated in the death of Mr Simmons, that made more than a minimal contribution. ... In this case I am bound to accept Ms Abernathy's submission that there is simply no medical evidence to support the view that either the overdose itself or the Appellant's deteriorated general physical condition caused the Appellant's death. The medical evidence is clear, at the most, that the overdose made a minor contribution to the Appellant's death and does not satisfy the more than minimal contribution test . ..." While Mr Jones has had the advantage of examining the appellant soon after his accident, his reports have to be considered in the light of the subsequent reports of Mr Talbot and Mr McMillan who have had the benefit of considering the appellant's condition at a much later date. While Mr Jones considered that the appellant had suffered a permanent disability, this did not attract a percentage of disability under s.78 and appeared in his opinion to be only a "minor structural anomaly". Mr Talbot considered it was worth mentioning the previous history because in his view the earlier motor vehicle accident provided serious implications for the future. It was his view that the serious degenerative changes brought about by that accident were already in evidence by the time the appellant injured his back in 1991 and he expressed surprise that the appellant denied any problems up to the time of 1991 accident. In Mr Talbot's opinion, the degeneration was of such a nature that in most cases he would have expected some problems prior to the 1991 accident. Mr Talbot is adamant that the degenerative changes predate the 1991 injury and that they cannot possibly have occurred within the space of 7 months which was the time between the accident and subsequent x-rays and CT scans. Mr McMillan accepts that the appellant suffers from degenerative arthritic change affecting the posterior joints at several levels in the lower lumbar spine. He also 10 accepts that these were well marked at the time of the CT scan in 1991 and while they could have developed quickly their degree suggested that they were already well established. Mr McMillan considered that the fault in 1991 brought to light or exacerbated the pre-existing arthritic changes. While Mr Bell has raised the question of the "egg shell skull" principle, I accept Ms Hancock's submission that that is not so. The respondent in this case relies on the medical evidence to establish that the effects of the 1991 accident are well past and that the problem now suffered by the appellant is the pre-existing degenerative change brought about by the earlier accident. In my view, the medical reports support this proposition and I am satisfied on the balance of probabilities that the respondent and the review officer came to the correct decision on the medical evidence available to them. The appeal is dismissed. DATED at WELLINGTON this 12 day of September 1996 grounddubai A W Middleton District Court Judge dc278-95.doc(rd)