Ringrose v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 281 /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN JAMES RINGROSE of Porirua Appellant (Appeal No. Al 194/01) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 21st day of August 2001 APPEARANCES/COUNSEL J Miller for appellant A Barnett for respondent JUDGMENT OF JUDGE A A P WILLY Background [1] This case concerns a decision by the Corporation of 20 November 2000 suspending the appellant's cover pursuant to s. 116 of the Accident Insurance Act 1998. [2] The cover was originally granted in or about March 1987 following an accident which the appellant suffered in October 1986. (3] Mr Ringrose sought a review of that suspension, and in a decision given on 23 April 2001 upheld the Corporation's decision. [4] Mr Ringrose appeals from the Reviewer's findings. 2 Matters of Law [5] Mr Miller for the appellant made a number of interesting submissions relating to what counsel considers to be the correct approach to the suspension of cover in cases such as this where the appellant's circumstances are governed by the transitional provisions of s.453 of the Accident Insurance Act 1998. This involves a comparison of the various definitions of personal injury by accident in the legislation which existed before the 1998 Act leading, in counsel's submission, to different outcomes depending upon the date at which the appellant suffers the personal injury by accident. (6] Mr Barnett, on the other hand, submits that this enquiry is unnecessary in the cases where the question in issue is not the granting of cover, but rather the suspension of it. In those cases Mr Barnett submits that there is no need to have regard to the disparate and differing definitions of personal injury by accident. To the contrary, the ambit of the enquiry need be no wider than to consider whether or not the symptoms currently suffered by an appellant are causally connected to the disability stemming from the accident for which cover was granted. [7] Mr Barnett relies for that submission on the decision of Beattie J in Shaw 17/2000, in which His Honour said: "It is a situation however, that s. 10 (1992 Act) need not be resorted to when cancellation of entitlements 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 way of 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 of malady is something other than the personal injury that originated in the accident." [8] Mr Miller made a similar submission in the case of Barbara Gray 248/2000. There Judge Barber held that it was not necessary to decide the point because on any definition His Honour was satisfied in that case that the symptoms suffered by the appellant were exclusively caused by bodily degeneration. 9] In Mercer 104/2000 Judge Middleton applied an approach similar to that contended for by Mr Barnett. Similarly in Duckmanton 23/2000 (Judge Barber). [10] With respect to counsel I no longer think that the argument advanced in this case is open in this jurisdiction. Judges have consistently applied the approach contended for by Mr Barnett, and if I were to approach the matter as one of first impression I too would take that view. It has the significant benefit of simplicity and consistency in all cases where the Corporation seeks to suspend cover irrespective of the precise wording of the legislation governing the definition of personal injury by accident at the time the cover was first granted. I would be reluctant to revisit the matter in those circumstances, particularly as the outcome if Mr Miller is right, may well be that different claimants and appellants would be treated in a different way when it comes to questions of suspension of cover as distinct from initial grant of cover. 3 [11] In my view the test enunciated in a number of cases, for example Fowlie v ARCIC AP/00, Shaw (above), and Ross v ACC 230/01, should continue to be applied in cases involving suspension of cover. [12] Approaching the matter in that way, the enquiry is whether or not the symptoms from which the appellant currently suffers are causally related to the injuries suffered in the 1986 accident. [13] I intend to proceed accordingly. The Medical Evidence [14] There are four medical reports before the Court: two from Mr Palmer, one from Mr Rao, and one from Mr Walsh; all four of whom are Orthopaedic Surgeons. [15] Chronologically the reports are dated 19 March 1989, 30 June 1997, 10 October 2000 and 15 February 2001. [16] In the 1989 report Mr Palmer says: "This report relates to an injury described on the 10" of October 1986 when this man was lifting posting boxes from his van while he was working for the Post Office as a carpenter." [17] The appellant was off work for some time after the accident. He returned to his occupation at the Post Office after a period of bed rest, but sustained a later injury also while lifting objects at work. This was followed by further bed rest, and at about that time he first saw Mr Palmer who says: "It was apparent then that he had an injury to his back and symptomatic spinal stenosis. He had a radiculogram done which confirmed constriction around the spinal cord, and he underwent decompressive laminectomy at Kenepuru hospital." [18] Mr Palmer describes the appellant's progress as initially good with complete relief of pain, but "some time later he developed leg pain again and this has troubled him ever since then." [19] Mr Palmer also notes that prior to the 1986 accident Mr Ringrose had suffered other back injuries and had undergone surgery at Wellington Hospital, also for 'decompressing spinal stenosis in the lower lumbar area in 1982". [20] The appellant's complaints at that time were of: "backache when sitting, particularly also first thing in the morning when getting out of bed, or if in a position of being semi-stooped. He develops disabling right leg pain when walking more than around 30 metres, the pain is in the calf, ankle and foot.' [21] He is also described as getting left leg pain in the calf a "somewhat later distance, around 100 metres, and pain on coughing or sneezing." [22] At that time the appellant is described as working as a carpenter for the Post Office, and that he has "not been able to return to that occupation but currently 4 spends his time around home looking after the house, the garden, and also teaching night classes for adult education at the local high school". [23] The x-ray evidence at that time is as follows: 'Evidence of previous decompressive surgery in the lumbar spine, there is no gross evidence of disc degeneration or spondylosis, but it is notable that he has what appears to be a congenital shortening of his lumbar pedicles." [24] A radiculogram which was done prior to his second laminectomy "shows spinal stenosis in the proximal lumbar segments, there is also the suggestion of nerve root compression distally but this is difficult to interpret in view of having had previous surgery in the area." (25] A further radiculogram and CT scan following his second laminectomy shows 'evidence of previous surgery but no clear reason for recurrence of his pain". [26] In his summary and assessment Mr Palmer says at that time: "The surgery has been in the form of decompressive laminectomy to relieve a congenital narrowing of the spinal canal, aggravated by injury causing minor disc prolapse and joint enlargement." [27] In Mr Palmer's view the appellant's symptoms are "suggestive of continuing spinal stenosis but this has not been able to be shown by recent investigations". [28] He goes on to say that: "Although a significant proportion of his disability is due to congenital stenosis, there is no doubt that it has been largely aggravated by his work and recurrent injury. It does not all relate to the injury of the date in question.' (29] In the light of those findings Mr Palmer assessed the appellant's then disability as 25 per cent. Describing it as "a relatively major award" but one which reflected his condition at the time. [30] Mr Palmer next saw the appellant at the request of the Corporation and reported on 30 June 1997. [31] At that time on examination the appellant had "a very restricted range of back movement. It is painful when he pushes it too far". He does not consider that there is any evidence of nerve root entrapment but says, "it is a more generalised problem of painful stiffness and degeneration". The rest of the report deals with Mr Ringrose's possible rehabilitation but he does note, "there is no doubt that to some extent his circulation problem limits his ability to work also, but his prime restrictions lie still in his low back". [32] On 10 October 2000 Mr S N Rao reported to the Corporation at its request, saying: "I reviewed Jim (the appellant) for the purposes of a medical report as requested." 5 He obviously interviewed the appellant because he records: "He tells me he never really recovered significantly and was doing some light work, but in October 1986 he was lifting some posting boxes from his van and hurt his back." He records the plaintiff's "main problem is that of low back pain" and that on bad days the "pain is 8 out of 10 with significant disability" [33] Mr Rao reviewed the appellant's lumbar spine x-rays and thios. These he considers "shows evidence of shortened pedicles, evidence of generalised lumbar spondylosis particularly so at L4/5". He says in response to the Corporation's specific question, "/ feel that Mr Ringrose's current diagnosis is of lumbar spondylosis". He goes on to say: "It is highly likely that his present problems are related more than likely to degenerative disroder (sic) rather than truly a traumatic disorder which (sic) in the absence of degeneration I would have expected to recover." [34] He concludes that: "In my opinion the primary cause of his incapacity is his general lack of mobility and fitness, his general feeling that his back is not going to bear up to the physical load, and of course the irritation in his back from the lumbar spondylosis." [35] In the light of that opinion the Corporation suspended the appellant's cover. [36] On 15 February 2001 Mr Ringrose was examined by Mr Peter Walsh. He records that Mr Rao "rightly noted that there were extensive degenerative changes and evidence of lumbar spondylosis throughout the whole of the lumbar spine. It was not confined to the lower back where he had problems in past years". Mr Walsh describes the appellant's history as "really quite complex". He sets out the circumstances of the accident which accord with Mr Palmer's description. Although he has not seen the results of the CT scan he says, "I would suspect that there was in fact now an element of spinal stenosis", but considers that the symptoms are "in fact more characteristic not of spinal claudication but of vasculogenic claudication". He also notes Mr Palmer's records made at the time that there are "no atrophic changes in the feet which are warm and well perfused with good dorsalis pedis pulses', although he notes that he is "unable to feel the posterior tibial pulses". [37] From these observations Mr Walsh concludes that the appellant had an element of both spinal claudication and vasculogenic claudication. [38] As to the origin of the appellant's present disabilities Mr Walsh says: "There is no doubt on review of his x-rays that he does have a generalised state of spondylosis in the spine, that is, there is widespread degenerative change down the spine." 6 Significantly however, Mr Walsh observes: "but this doesn't necessarily mean that this is where the pain arises from. Looking at x-rays doesn't give that information at all." [39] Mr Walsh's opinion as to the cause of the appellant's problems is: "We do have to say that we have a man who sustained an injury to his back at work having not had problems before. Following that episode he decompensated such that he was troubled by an intractable back pain. The accident at work was thus provocative of this man's breakdown in his work capability." He concludes by saying: "Therefore, his continuing state of disability remains the work accident injury sustained in that accident, not what we see on an x-ray all these years later. Thus one would have to say that this man remains in a state of limitation. The result of workplace accident, and, in my view, is entitled to continue in compensation cover notwithstanding the other medical events that have taken place with his aneurysm and bypass and carotid surgery. His continuing back pain was a work accident an (sic) injury from which he did not recover and remains disabled in terms of being able to engage in physical work." [40] On the state of that medical evidence, and given Mr Rao's somewhat tentative conclusions, the case for the appellant is in my view overwhelming. There is a direct and objective link between the findings of Mr Palmer in 1989 to the opinions expressed by Mr Walsh in February 2001. The chain of causation based on that evidence is unbroken. The appellant continues to suffer from the effects of the injuries sustained in the 1986 accident. The effect of those injuries is not spent such that his current disabilities may be said to arise from some degenerative process. He is in my view, clearly entitled to receive compensation for those injuries. Decision [41] The determination of the Corporation in suspending Mr Ringrose's cover was in my view wrong, and the appellant's cover must be reinstated from the date upon which it was first terminated. Costs [42] The appellant succeeds, and is entitled to costs. If the parties cannot agree they may submit memoranda, the applicant within 10 days of receipt of this judgment and the respondent within a further 10 days from receipt of the applicant's memorandum. DATED at WELLINGTON this 3 rd day of October 2001 Yoalleg Willy A A P Willy District Court Judge ai194-01.doc(aw)