Ellis v Accident Rehabilitation and Compensation Insurance Corporation

Decision 172/ 99 IN THE DISTRICT COURT DCA No 201/98 HELD AT AUCKLAND BETWEEN JANET ELLIS Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Date of Hearing: 3 June 1999 Date of Judgment: 5 July 1999 Counsel: Ms L Smith for Appellant Ms E Hock for Respondent RESERVED JUDGMENT OF JUDGE JD O'DONOVAN Solicitors: N Issue The issue in this appeal is the cessation of all the appellant's entitlements including weekly compensation pursuant to s 73 (1) of the Accident Rehabilitation And Compensation Insurance Act 1992. By a decision dated 8th January 1997 the Corporation declined the appellant's ongoing entitlement under the Act. The appellant applied for a review but on 30th July 1997 the Review Officer confirmed the Corporation's decision. Background The background to the matter is not in dispute. It is that on 16th October 1991 the appellant was injured while working as a theatre nurse at Southern Cross Hospital. She fell while pulling an occupied bed and sustained injuries to the back of her head, neck, left shoulder, spine and left buttock. The Corporation accepted the appellant's claim and commenced payments of earnings-related compensation from 23 October 1991. Thereafter the appellant's condition was reviewed from time to time. Various treatments were undertaken to relieve her symptoms but although there were periods when the appellant's condition showed signs of improvement there I:JUDICIAL\ODONOVANDECISION Ellis v Acc.doc dj 3 never seems to have been any long term relief from the pain and other disabilities experienced by her since her accident. The history of her treatments and the medical opinions provided concerning her condition is set out in some detail in the decision of the Review Officer and in the written submissions provided by counsel in connection with the present appeal. It seems to me unnecessary to repeat all of these matters about which, in any event, there is little or no dispute. However in December 1996 the Corporation referred the appellant to Mr Nicholson, an orthopaedic surgeon, for an opinion. This was a significant development. What happened next is summarised in the submissions of counsel for the respondent as follows:- "Mr Nicholson examined the appellant on 4" December 1996 and provided a report to the respondent dated 5" December 1996. Mr Nicholson noted that he had seen the appellant previously in respect of two other accidents. He had first seen her on 19th October 1983 regarding pain in the lumbar area that occurred after a fall on 14th September 1983 while getting into a car. The appellant received treatment from a physiotherapist which included the use of a brace and Mr Nicholson concluded that she had an acute low lumbar back pain and a corset was provided. On 25th November 1983 the appellant advised Mr Nicholson that she was comfortable and commencing work in the operating theatre at Greenlane Hospital. "Mr Nicholson next saw the appellant on 21st June 1988 in respect of injuries that she had sustained in an accident in August 1987 when she was kicked in the head and chest by a horse. The appellant sustained multiple fractures of her ribs and was off work for a considerable time " Mr Nicholson then related the circumstances surrounding the accident on 16th October 1991 and reviewed the various medical opinions and objective investigations that had been carried out in respect of this accident." In his report to the Corporation Mr Nicholson said:- I:JUDICIAL\ODONOVANDECISION\Ellis v Acc.doc dj "Mrs Ellis presents as a person with chronic pain dysfunction syndrome". Mr Nicholson noted that:- "Following the injury in October 1991 a CT scan six months later did not show any evidence of a disc prolapse but did demonstrate degenerative changes in the lumbar spine". Further, Mr Nicholson said:- "It is to be noted that even on the initial CT scan degenerative changes were demonstrated in the spine affecting the L4-5 disc space and the lower facet joints. "The scan 8.2.93 reports "severe narrowing of the L4-5 disc". "The CT scan 10.8.93 also reports the degenerative changes. "In my opinion it is likely that the degenerative changes together with the depression from which Mrs Ellis suffers account for her continuing and apparently incapacitating symptoms which are not the after-effects of the injury in October 1991. "In my opinion as Mrs Ellis has now been off work for five years the chances of her returning to work, on purely statistical grounds, must be regarded as remote." Later in his report Mr Nicholson said:- "I feel obliged to express my concern that assessment of the residual disability was apparently accepted on the report from Mr Howie of 17.12.93 despite the fact that he states "Please note that I do not prepare ACC reports for permanent disability". "In the event that an independent assessment had been made at the time and in view of the previous history it is unlikely that the impairment would have been regarded as solely attributable to the accident in 1991." I note that Mr Howie was a spinal surgeon who had previously provided the Corporation with a report relating to the appellant's condition. I:JUDICIAL\ODONOVA\DECISION\Ellis v Acc.doc dj 5 On 8th January 1997 the respondent wrote to the appellant and advised that the Corporation was no longer satisfied that the appellant's incapacity was due to the injuries sustained on 16th October 1991. The Corporation advised that ongoing entitlement had been ceased under s 73(1) of the Act. It was in respect of that decision that the appellant sought a review and at the review hearing on 30th July 1997 the appellant's counsel suggested that Mr Nicholson's report was deficient and proposed that further clarification should be sought from him. At the request of the appellant's counsel the review hearing was adjourned part-heard while a further opinion was sought from Mr Nicholson. Mr Nicholson provided a further report dated 12" November 1997 in which he said:- "The question of trying to apportion the present disability between the different injuries does not arise and in any case would be in the realms of conjecture." Further:- "The diagnosis of depression was not made by me and Mrs Ellis was on medications used for the treatment of depression. "I submit that it is within my sphere of competence to comment that the association of depression with musculoskeletal problems complicate both the assessment and management of the case. "The Corporation specifically asked me to comment as to whether the current symptoms were attributable to the after-effects of the injury in I October 1991. I:JUDICIAL\ODONOVANDECISIONEllis v Acc.doc dj 6 "In my opinion the previous history of back symptoms clearly indicates that they were not. "I would further add that my report was not prepared only from the point of view of the 1991 injury as, if this were so, I would not have detailed the information regarding the previous injury." When the review hearing resumed the Review Officer found that the medical evidence did not support a causal connection between the appellant's ongoing symptoms and the accident which occurred in October 1991. At the hearing before me new evidence was available in the form of a report from Mr McAuslan an orthopaedic surgeon. After relating the details of his examination of Mrs Ellis Mr McAuslan gave as his opinion:- "From the history that has been supplied by Mrs Ellis today and from the clinical findings, it is my opinion that the pain which she described is in keeping with the events following the accident of 16.10.91 and the subsequent surgery. This is not a particularly unusual situation. The injury to her lumbar spine in 1983 which caused some radiation of pain to the right lower limb appears to have settled and from history supplied by Mrs Ellis, this injury did not cause her any particular problems until 1991. It appears to me that her present problems are related to the injuries sustained on 16.10.91 and subsequent events. I do not believe that any further surgery will improve her situation and indeed it is unlikely that any other form of conservative treatment will significantly alter her situation. Mrs Ellis would not be able to return to work as a theatre nurse in her present state. I think it is most unlikely that she would be able to carry out any form of work in the force in the future." Also available at the hearing before me was a report from Sandra Lundbergs, a psychologist, dated 14t July 1998, it being her opinion that:- "In conclusion interviews and questionnaire results clearly indicate that Mrs Ellis is not currently suffering from depression." I:JUDICIAL\ODONOVANDECISION\Ellis v Acc.doc dj 7 The Law The relevant provisions of the Act, namely those in ss 10, 37,37A, and 73, were referred to me and I do not set them out in full here. Reference was made to the decision of Judge Beattie in ARCIC v Burke (198/98) in which the learned Judge, confronted with a situation similar to that in this case, said:- "If the trauma of the accident hastens or precipitates the onset of symptoms of the pre-existing generative 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..... 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 ongoing problem, then at that time the claimant was no longer entitled to cover under the Act by virtue of s 10." Further:- "A person is entitled to compensation for the full extent of injuries 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". Again in Martin (50/98) Judge Beattie said:- "In this case the appellant is entitled to receive weekly compensation for incapacity for so long as that incapacity is directly attributable to the personal injury by accident for which she has cover. The clear opinion is that the present incapacity of the appellant is not attributable to that accident but rather to degenerative changes to the wrist and as such cover is excluded by s 10 of the Act." I:JUDICIAL\ODONOVANDECISION\Ellis v Acc.doc dj 8 With respect I accept that those statements clearly express the legal principles which apply in this case. In my view the evidence clearly reveals the existence of degenerative changes which preceded the appellant's accident in October 1991. It seems to have been accepted that for some time following the accident the appellant's symptoms and associated inability to work were directly attributable to the injuries suffered in that accident which it seems also had the effect of exacerbating the underlying condition. The question which now arises is whether or not the appellant's symptoms and inability to work are still being caused as a result of the injuries suffered in the accident in October 1991 or whether they are the result of the underlying degenerative condition. With respect the legal issue was put clearly by Judge Beattie at p 15 of his decision in Burke:- "For the purposes of entitlement, the Act provides by s 10 that personal injury caused wholly or substantially by gradual process, disease or infection is not covered (except arising out of employment). It is not personal injury by accident and neither is personal injury caused wholly or substantially by the ageing process. 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 the 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..... That condition has not been caused by an accident within JUDICIAL\ODONOVANDECISION\Ellis v Acc.doc dj 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, ie the twist or strain or suchlike, medical opinion would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury provided 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 ongoing problem then at that time the claimant was no longer entitled to cover under the Act by virtue of 2 10. 'For the purposes 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 injuries suffered by accident, however naturally frail they may be. Whilst it is correct that a victim must be taken as she/he 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." Decision Clearly, in my view, Mr Nicholson is of the view that the appellant's present symptoms and inability to work are the result of the underlying degenerative condition and cannot be said now to relate to the injuries suffered by the appellant in her accident in October 1991. On the face of it Mr McAuslan is of a different view but when his report is carefully scrutinised it seems to me that there is little if any difference I:JUDICIAL\ODONOVANDECISION\Ellis v Acc.doc dj 10 between his opinion and that of Mr Nicholson. What he says is that the injury to the appellant's lumbar spine in 1983 "appears to have settled and from history supplied by Mrs Ellis this injury did not cause her any particular problems until 1991". Further he says:- "It appears to me that her present problems are related to the injuries sustained on 16.10.91 and subsequent events." I did not have the opportunity of seeing and hearing Mr McAuslan. The only evidence available from him was his report and his views were not the subject of cross-examination. Similar comments apply in the case of Mr Nicholson except that following criticism of his report at the commencement of the review hearing that hearing was adjourned so that specific matters could be put to him for further comment. Accordingly, although Mr Nicholson was not cross-examined, the applicant's case was put to him (in the context of the review hearing) and he was asked to comment upon it, the result being that he reiterated the views previously expressed by him. The view that I take is that Mr McAuslan is saying no more than that the accident in October 1991 (to use the expression in the Burke case) "stirred up" symptoms associated with the underlying degenerative condition. To that extent it is possible to say that the appellant's "present problems are related to the injuries sustained on 16.10.91 and subsequent events", as Mr I:JUDICIAL\ODONOVANDECISION Ellis v Acc. doc dj 11 McAuslan does say, but that does not provide an answer to Mr Nicholson's view that the situation is now that the present incapacity of the appellant is not attributable to the accident but rather to degenerative changes as noted by him. The onus is upon the appellant to satisfy the Court on the balance of probabilities that there is a causative link between her present incapacity and the injuries suffered in the accident in October 1991. I regret to say that in my view the appellant fails to satisfy that onus and accordingly the appeal is dismissed. (JD O'Donovan) District Court Judge I:JUDICIAL\ODONOVADECISION\Ellis v Acc.doc dj