Thompson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No / 8 1/97 IN THE MATTER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JANET ANN THOMPSON of Gisborne (Reference DCA 164/97) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent Mr P T Johnston for Appellant Ms L Rice for Respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has cover under the ARCI Act 1992 to enable her to claim for the cost of certain private hospital surgery and other entitlements in respect of an injury to her back. The appellant contends there is a causal connection between an accident she suffered and the injury to her back for which she now seeks remedial N surgery whereas the respondent contends there is no such causal connection and that her back injury is the consequence of degeneration by the ageing process unconnected with any accident and therefore excluded by section 10(2)(a) of the Act. This appeal has been determined on the papers at the request and consent of the parties. At the outset I wish to record my appreciation for the full and helpful submissions received from Mr P T Johnston for the appellant and Ms L Rice for the respondent. BACKGROUND FACTS 1. The appellant was at the material time aged 46 years and employed as a customer assistant by Deka in Gisborne. 2. Two years earlier namely on 26 June 1994 she suffered a fall causing severe pain to, inter alia, her hip and lower back. She sought and obtained cover under the Act and underwent a course of physiotherapy treatment. That treatment continued until 7 November 1994 when she was discharged. She was pain free for an entire week prior to discharge. 3. In approximately May 1995 she experienced brief back pain when moving a table at work. That pain disappeared within a day. 4. On 12 May 1996 she tripped on a door mat at home and fell onto a step. She experienced severe pain across her lower back radiating to her right leg. She consulted her doctor about this pain on 14 May 1996. She sought and obtained cover in respect of this accident. Her doctor recommended chiropractic treatment and this was approved by the Corporation. 5. After about five months of chiropractic treatment she was referred back to her GP as she was not responding to treatment. 6. On 21 October 1996 she was examined by Mr Kelman, Orthopaedic Surgeon and his report states that: "Since the time of the accident she has had pain in the right hip region over the buttock laterally. It does sometime radiate to the posterior aspect of the right leg. This is present at night, she is uncomfortable and unable to cope at the present time. Clinical examination shows a healthy person able to bend forward to bring her hands opposite her knee, she is unable to extend and lateral reflection to the right is severally painful. In view of the movements of her spine and the x-ray picture which has been presented today she may well have a central disc prolapse and I have requested a CT scan to exclude this." 7. A CT scan was taken on 25 November 1996. That scan disclosed that Mrs Thompson had: A. Stenosis of the central canal at L3-L4, that stenosis having been caused by paravertebral joint degenerative change. B. Less marked paravertebral joint degeneration at L4-L5 C. Mild degeneration of paravertebral joints at L5-S1. 4 8. Mr Kelman's assessment of the appellant from the CT scan was that the L4-5 region showed relative stenosis of the canal secondary to disc bulge and thickening of the ligamentum flavum. 9. It was Mr Kelman's advise that she have surgery for the resolution of the stenosis (the narrowing or stricture of the canal) 10. In December 1996 the appellant requested permission for the surgery under her cover from the accident of 12 May 1996. That requested was supported by Mr Kelman. 11. Medical opinion from within the Corporation and from Mr OR Nicholson, Orthopaedic Surgeon, of Auckland was to the effect that the appellant's present symptoms were as a consequence of the ageing process and not as a consequence of any accident. The Corporation accordingly declined to meet the cost of the proposed hospital treatment. 12. Following a review hearing the Review Officer concluded his decision as follows: "The medical reports, particularly those of Mr Nicholson, who is widely respected for his expertise in this area, and those of the Corporation's Medical Advisors tended to the opinion that Mrs Thompson's continuing problems are not the result of the accident but are the result of the degenerative change. While it may be that it took the accident to disclose Mrs Thompson's problem and it must be accepted that the Corporation has to take her as they find her, I consider the medical evidence supports the Corporation's view that her problems following the accident, which seemed relatively minor, 5 are substantially due to the degenerative changes in her spine and that cover is no longer appropriate." THE MEDICAL EVIDENCE On 26 June 1994 Mrs Thompson suffered a fall causing back pain. She was examined by Mr Kelman. His report of that injury and the treatment of it is contained in his report of 11 March 1997. "There was tenderness over the left sacroiliac joint. The initial assessment at that time was thought to be a sacroiliac dysfunction secondary to injury and was treated with physiotherapy and anti inflammatories. I saw her again on 1.9.94 with considerable improvement in her symptoms. Physiotherapy was continued. The last treatment given by the physiotherapy was on 7.11.94. It was stated she was pain free for an entire week prior to discharge. Back care prophylaxis now was taught." The evidence is that from the cessation of that treatment in November 1994 down to the time of her fall on 12 May 1996 her condition was asymptomatic in all respects. The fall on 12 May 1996 caused severe back pain. Her GP recommended a course of chiropractic treatment. No specialist clinical examination or x-rays were taken at that time. She did not respond well to that treatment and was referred by her GP to Mr Kelman on 21 October 1996. I have already referred to the contents of that report in para 6 of the background facts above. Following the CT scan Mr Kelman reported to her GP that there was evidence of quite marked stenosis between L4 and 5 with impingement of 6 lateral recesses. He advised that the alternatives for treatment of this were an epidural injection or decompression surgery. Mrs Thompson made the decision to have surgery. In December 1996 and January 1997 Mrs Thompson was still suffering pain in her lower back and her condition was such that she was no longer able to work. Both Mr Kelman and Mr Nicholson agreed that at the time of the accident on 12 May 1996 Mrs Thompson had experienced degenerative changes in her spine and that these changes were of considerable significance. Both specialists agreed that the 1994 accident did not cause or contribute to their degenerative changes. Mr Kelman further stated that her present condition partly related to the degenerative condition in her back but that it was made acutely worse by the accident. He subsequently opined that the lumbar spinal stenosis which she has developed was aggravated by the injury of 12 May 1996. Mr Kelman is also recorded as expressing opinion to Mrs Grey, the Principal Case Manager, to the effect that the accident caused an exacerbation of the symptoms but he could not estimate the sum of those effects as opposed to the disease and degenerative process. Mr Nicholson stated that the degenerative changes as shown in the x-rays are definite and that he would add to the CT report that there are degenerative changes in the prosterior joints at several levels. It was his opinion that the symptoms experienced at the present time are not in the nature of radicular pain. It was his opinion that the original injury sustained in 1994 was insufficient to initiate the development of degenerative changes nor did the subsequent injuries substantially contribute to the development of symptoms. It was his opinion that the symptoms presently experienced by Mrs Thompson are substantially caused by the ageing process. There being established disc degeneration at L2 to L5. Mr Nicholson also stated that although the degenerative changes were wide spread it was to be appreciated that the x-ray demonstration of degenerative changes does not mean that inevitably symptoms will be experienced, nor can the extent of the changes be related directly to the symptoms. Some with marked changes in the x-rays may have no symptoms, while others with minor changes and even with normal x-rays may have significant problems. It is to be noted that Mr Kelman agreed with Mr Nicholson's findings and there is no dispute between them that the symptoms now displayed by Mrs Thompson are those of lumbar spinal stenosis and that such is a degenerative disease of the lumbar spine. It is to ameliorate that condition that cover for surgery is sought. THE LAW The relevant provisions of the ARCI Act are firstly section 8(2)(a) "Cover under this Act shall extend to personal injury which (a) is caused by an accident to the person concerned". There is no doubt that Mrs Thompson suffered an accident by virtue of her fall on 12 May 1996. The other relevant section is section 10 which provides "general exclusions from cover - 8 (1) 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 it is - (a) personal injury caused by gradual process disease or infection arising out of and in the course of employment as defined as section 7 or section 11 of this Act or ( 6 ) personal injury i.e. medical misadventure or (c) a consequence of personal injury or treatment of personal injury covered by this Act. (2) for the avoidance of doubt it is hereby declared that - ( a ) personal injury caused wholly or substantially by the ageing process and (6 ) personal injury to teeth that is caused by the natural use of those teeth - is not covered by this Act. The thrust of section 8 is that there must be a causal connection between the accident and the injury and by virtue of section 10 an injury caused wholly or substantially by the ageing process is not covered. I am cognisant of the "egg-shell skull" principle referred to in some of the authorities cited by counsel, best encapsulated in the decision of Springer J in Mccarthy v Union Steamship Co 1916 [NZLR] 1154 "It is clear that if a man's physical condition is such as to render him peculiarly susceptible to grave consequences from an accident which in a normal healthy person would have no 9 such consequences that will not effect the right to compensation for the more serious result." However, I find that despite the urging of counsel for the appellant, this principle does not apply in this case. Taking the appellant as you find her, she has an existing stenosis of the central canal caused by paravertebral degenerative change. Her fall in May 1996 did not change or create that condition, all it did was to accelerate the experience of symptoms of it, the condition upto that point having been asymptomatic. Adopting the egg-shell skull analogy, the fall did not crush the egg-shell skull it simply established that she had one. I observe that in the decision of Bell v ARCIC (105/97) there were factual circumstances which were not dissimilar to the present case. There the pre- existing degenerative condition was osteoarthritis. In that decision His Honour Judge Middleton said: "while it is clear that this appellant had experienced no difficulties until the time of her fall, the fall clearly brought them to light and when surgery was subsequently undertaken, disclosed significant arthritis in the right hip. In many cases of this nature a person is asymptomatic until an incident such as a fall brings to light a pre-existing problem which has not previously caused difficulties." It has not been suggested that the appellant's condition arose or was created as a consequence of the fall on 12 May 1996 - it was already there, "a ticking bomb". The evidence is that the accident of 12 May 1996 hastened the count down of the timing of that "bomb". 10 In the circumstances therefore I find as a fact that the appellant's injury for which she seeks hospital treatment was caused wholly or substantially by the ageing process and not as a consequence of the accident she suffered on 12 May 1996. The reasoning enunciated by Judge Middleton in the Bell decision is equally applicable to the present case. It follows from this finding that the appellant does not have cover under the Act for the purposes sought. The appeal is dismissed. DATED at AUCKLAND on this 'S day of Jerflemlie - 1997. M J Beattie District Court Judge janthom.doc(gm)