Leydon v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 41 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JENNIFER MARY LEYDON of Whangarei Appellant (Appeal No. DCA 172/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WHANGAREI on the 25th day of November 1998 APPEARANCE/COUNSEL CL Cook for appellant D Tui for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON While this appeal came before me on 25 November 1998, Ms Cook requested time to make submissions in relation to additional medical evidence submitted by the respondent. As I have now received all the necessary submissions I am in a position to issue a decision. The issue on appeal is whether the respondent was entitled to decline the appellant's application for earnings related compensation under s.37A of the Act on the grounds 2 that her ongoing incapacity was due to a degenerative process rather than injuries suffered on or about 23 November 1996. The appellant lodged a claim for cover with the respondent in March 1997 in which she stated that she had suffered a back injury on 23 November 1996 while on holiday in Greece. The appellant's description of the manner in which the accident occurred was provided by her to the review officer and states: "I was descending a steep path which crosses diagonally down the hillside from the site of the ancient town of Olynthos in North-east Greece, the ground was bare rock with a loose gravel track. My right foot skidded from under me on the slippery surface and in order to prevent myself from falling down the slope to my right I tried to regain my footing to the left side. Unfortunately I was already too much off balance to do this, and came down very heavily, both feet off the ground, on my left side. It was not a ladylike little stumble, but a sudden, jolting fall. I present signed letters from the other tour members who were with me at the time, and my room-mate, all are mature persons of judgement and integrity. I tried to make as little fuss as possible at the time, because I did not want to be a wet-blanket on the rest of the tour activities, although suffering the bruising and stiffness etc including loss of sleep due to various aches and pains which one would expect from a substantial fall. I was just very grateful that I had not broken any bones." The respondent accepted that the appellant was entitled to cover in respect of the injury to her lower back. When the respondent came to consider the appellant's claim for earnings related compensation it requested information from Mr I Peters, an orthopaedic surgeon. He noted that the appellant had been referred to him by her general practitioner in March 1997. In his report he noted: "x-rays indicated what appeared to be degenerative change at the L5-S1 disc with some irregularity of the facet joints. He was recommended to go on to a CT scan as well as some further blood tests. A CT scan suggested that she had a right sided L4-5 disc prolapse. The scan was reviewed with a colleague as there was some difficulty in identifying the reported prolapse. It was felt that she should proceed to an MRI scan." His conclusion was "Your enquiry has specifically asked whether the disc protrusion at the L5-S1 level is injury related or due to degeneration. The answer is that there are existing degenerative changes affecting that disc space as well as the facet joint. It is impossible to determine whether the small broadly based disc protrusion at the L5-S1 level is associated with this degenerative change or is due to her recent injury." The respondent then arranged for the appellant to be examined by Mr OR Nicholson, an orthopaedic surgeon, whose report of 1 October 1997 stated that the appellant had been referred to Mr Peters whose finding was: "In his report to you of 29.7.97 he notes that when he had seen Mrs Leydon in March that there was a marked tenderness at the lumbo-sacral junction. 3 X-rays showed degenerative changes at the L5-S1 level. A CT scan suggested a right L4-5 disc prolapse but there was some doubt about this diagnosis. An MRI scan on 16.6.97 showed a small broad based disc protrusion at L5-S1. Degenerative changes in the discs at T11-12 and T12-Ll were noted." Mr Nicholson's discussion and opinion was: "The initial symptoms experienced are consistent with a diagnosis of an acute low lumbar back strain. The x-rays show degenerative changes at the L5-S1 disc and it is likely that the symptoms experienced are arising from this. It is 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. On occasions an injury may initiate symptoms in an area which has previously been asymptomatic. The majority of these cases settle over a period of a few weeks. An unusual and puzzling feature in this case is the relative absence of symptoms during the day and the significant symptoms at night. It seems that the symptoms are not directly related to lying down as she is able to get to sleep but wakes after a few hours. I think the main problem now is the interruption in sleep pattern and in my opinion therapy should be directed towards helping this. Mrs Leydon expresses concern that treating symptoms are concealing some underlying problems. However, in my opinion, the presence of some other underlying condition has been virtually completely excluded by the investigations carried out and in particular by the MRI scan. In my opinion the disc protrusion demonstrated is not contributing to the symptoms as there are no findings on examination to correlate with this. 4 It is of note that an MRI scan will show a disc abnormality in about 50% of those in Mrs Leydon's age group who have never experienced back pain or sciatica. I note that Mr Peters suggested that a radio-isotope bone scan might be advised if her symptoms persisted - in my opinion it is most unlikely that this would demonstrate any abnormality as the symptoms do not suggest any condition affecting the bone. In my opinion there is no indication for any more active treatment and in particular I do not consider that an epidural injection is likely to be helpful in the absence of significant leg symptoms. I have advised Mrs Leydon to discuss matters with her doctor as with her apparent dislike of medications she may consider using some herbal preparation to help with sleeping. As Mrs Leydon was apparently able to manage the physical aspects of her job I see no reason that she should not be able to return to work once her sleeping pattern has improved.' On 8 October 1997 the respondent notified the appellant that her application for loss of income was declined because her ongoing symptoms were not injury related. The appellant applied for a review of that decision. Subsequently, the appellant submitted a report from Dr J P Simcock, a neurologist, which is dated 8 January 1998. His finding was: "On examination there was normal power in all muscle groups in the arms and in the legs, the tendon reflexes were symmetrical and brisk, the plantar responses were flexor and all modalities of sensation were perceived normally. I found no abnormality in the cranial nerves. On general examination her blood pressure was 190/100. There was a soft ejection systolic bruit at the left carotid bifurcation and an even less impressive bruit on the right. Straight leg raising was normal, movements of the hips were full and pain free and movements of the back were also normal. Her gait was normal. I note the CT and MR scans, which show degenerative changes at the L5-S1 level, without evidence of nerve root compression. There are no signs of nerve root compression and I consider her discomfort to be of musculo-skeletal origin, possibly arising from the right L5-S1 interlaminar joint. From the history it is clear that the fall which she had in November of last year precipitated her back discomfort which has persisted giving troublesome insomnia. No further special investigations are indicated. I would suggest that she has instruction in performing back extension exercises and if this does not give a reasonable measure of improvement, then I see no contra-indications to an epidural injection." The matter then proceeded to a review hearing as a result of which the review officer upheld the decision of the respondent. He accepted that the appellant had been injured in a fall in Greece, but found that on the medical evidence the fall did not 5 cause the changes to the L5-S1 level. It is against that decision which the appellant now appeals. After the review officer's decision was issued the appellant was examined by Mr P Robertson, an orthopaedic and spinal surgeon, whose report of 4 August 1998 concludes: "Hilary, I think that Jennifer's pattern of pain is entirely consistent with pain coming from the lumbosacral disc. There has been a soft tissue injury which has resulted in a marked increase in her symptoms following the fall. I note that there are problems with ACC's interpretation of this. It is quite clear that Jennifer had some mild back symptoms associated with physical activity and her x-rays are abnormal. I have emphasised in the past that there is a significant tendency to increased abnormality with the development of spondylosis as we all age. The frequency of these changes is much greater in more aged populations than younger populations. Very frequently these radiological changes are asymptomatic. Much of the interpretation of the injury should come down to the history of the accident. Jennifer has given a clear history of a change in symptoms associated with her accident. But for the accident it would seem likely that she would have been able to return from her holiday and continue to work without significant disruption. I believe these comments would be of value when review occurs and there is interpretation of the role of the accident in terms of Jennifer eventually having to cease work. In terms of treatment for her problem it is clear that the physiotherapy has helped her symptoms significantly and further intervention is not required at this stage. I have encouraged Jennifer to maintain her walking programme in terms of keeping up her aerobic fitness. She would also benefit from continuation of her exercises." Prior to the hearing of the appeal Ms Cook submitted a further report from Mr Robertson which is dated 15 January 1999 and states: "I write in reply to your fax of 7 December 1998. I note your concerns regarding Ms Leydon's dispute with ACC. As frequently occurs, her situation is difficult and in my view the interpretation of the Act can be complex. We have noted that Ms Leydon had some mild symptoms in her back prior to the fall in Greece in November 1996. It is also clear that her x-rays were not normal demonstrating some age related or degenerative change. Subsequent to the fall her symptoms have changed quite dramatically and she has become significantly disabled. I would agree with Mr Nicholson's comment that a joint affected by degenerative change is more liable to be strained and, once strained, the symptoms may be slow to resolve. Ms Leydon's back symptoms were not disabling prior to her fall. It is clear that the fall markedly changed her pattern of symptoms and led to her current level of disability. It is unlikely that had she not had the injury she would have progressed to having such symptoms. Therefore the fall is a major contributor to her current level of pain and disability. I would agree with Mr Nicholson that the pre-existing degenerative changes will likely have meant the soft tissue injury has been slow to improve. Notwithstanding 6 this it is clear that her current disability has not been caused wholly by the degenerative process but by the impact of an accident superimposed upon the degenerative process. As to whether her current symptoms are substantially due to the degenerative process (or gradual process), I believe we must come back to the point that had she not had the accident, it is unlikely that she would have her current level of disability (this can be read as 'personal injury' in the wording of section 10 of the Act). Therefore it is my opinion that the patient would remain the responsibility of ACC." The respondent was granted leave to adduce a further report from Mr Nicholson dated 20 November 1998. In that report Mr Nicholson states. 'As requested I have reviewed previous reports of 1 October 1997 and 14 September 1998. The report from Mr P Robertson of 4.8.98 notes that x-rays taken in 1993 demonstrated degenerative changes to the L5-S1 level. Similar changes were present in the 1997 films and Mr Robertson was of the view that these had not progressed. This cannot be taken to indicate that symptoms experienced at the time of the two x- rays, would be the same. It is well recognised from clinical experience, that any joint which is affected by degenerative changes, is more liable to be strained than the normal joint, and once strained the symptoms may be slow to resolve. On occasions, as in this case, an injury initiates persisting symptoms. Under previous ACC Acts, Mrs Leydon would almost certainly have had cover. However, under the 1992 Act it is my opinion that the continuing symptoms are substantially due to the ageing process. The reason for an injury initiating continuing symptoms is uncertain. It is reasonable to postulate that there was a soft tissue injury, i.e., a general strain of the muscles, ligaments and joint capsules at the lumbosacral junction, and as a result of the altered mechanics secondary to the degenerative changes in the disc, the injury does not heal. It is not possible to give an estimate as to how long it takes a soft tissue injury to heal, but it is generally accepted that the majority of acute low lumbar back strains resolve, although not necessarily completely, in about 6 weeks." 7 Ms Cook submitted that the medical reports do not go so far as to establish that the appellant's current problems relate to pre-existing degenerative spinal condition which was not caused as a result of the accident. Mr Tui submitted that the issue is not a dispute to whether or not the appellant suffered an accident in Greece in November 1996 but whether her ongoing symptoms are caused by the accident or by degenerative change. The issue must be decided on the basis of the medical evidence. Mr Robertson is of the opinion that while there is evidence of degenerative change the appellant would more than likely have been able to continue with her holiday and work had it not been for the accident. In contrast Mr Nicholson provides what I consider is the correct basis and that is whether or not the continuing symptoms are the result of the ageing process which have been brought to light by the accident. He considered that x-rays in 1993 demonstrated degenerative changes at the L5 and S1 level which were confirmed by Mr Robertson. In addition, Mr Robertson's initial report stated that the fall was responsible for his onset of symptoms, but did not consider whether the condition was substantially or wholly related to the ageing process. In his subsequent report he has emphasised that the symptoms were precipitated by the fall which is not the issue before the Court. The respondent accepts that the appellant did have an accident in November 1996 for which she was given cover and that following that accident she was able to continue her holiday. That would seem to conform with Mr Nicholson's opinion regarding soft tissue injury. However, the issue now is whether her ongoing symptoms are the result of that accident or are wholly or substantially caused by the ageing process In my view, the medical evidence establishes that the position of this appellant is remarkably similar to that to the appellant in Bell (105/97). While Ms Cook disputes that finding on the grounds that this appellant suffered a more serious accident and was younger, I do not consider that those submissions are relevant. The medical evidence clearly establishes that at the time this appellant suffered her accident she had identifiable degenerative changes to which the medical evidence attributes her ongoing problems. Accordingly, the appeal is dismissed. DATED at WELLINGTON this 3 ra day of March 1999 A W Middleton District Court Judge dca1729S.doc(rd)