Salmon v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 163/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JENNIFER VALERIE SALMON of Dunedin Appellant (Appeal No. AI 672/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on 4 May 2004 APPEARANCES/COUNSEL M. Gibson for appellant I. Hunt for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether or not the appellant can prove on the balance of probabilities that in her duties as a nurse, when she lifted a patient into a wheelchair on 22 April 2003, that she suffered personal injury by accident. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/163- 2004.doc AE [2] What is important in this case is that earlier, in February 2003, the appellant had suffered a viral complaint from which she experienced symptoms including headaches and lack of movement in her neck region. [3] Originally the appellant’s doctor, Dr Wood, did not diagnose the symptoms from which the appellant claimed as being related to the lifting incident, but rather a diagnosis concerning symptoms resulting from her viral infection. [4] The appellant first raised the lifting incident on 17 June 2003. [5] The respondent challenges the various descriptions given by the appellant, and in particular her denial of ever having had a stiff neck and a head injury previous to 22 April 2003. The respondent also relies upon the findings of the review officer who heard and saw the appellant. He thought that the appellant was vague and gave inconsistent answers. [6] The two specialists who gave evidence seemed to have reached a view that the accident did cause symptoms in this case. [7] The respondent painstakingly reviewed the evidence of the two specialists, and the evidence given by the appellant. It is also significant that the neurologist called by the appellant thought that the viral symptoms would have ceased before 22 April 2003. [8] This case is concerned with cover, it is not concerned with entitlements. Both counsel have undertaken to provide me electronically with their submissions. Therefore, really all that is required is for these present notes to be dictated to jog my memory. The Respondent’s Background of Facts [9] On 17 June 2003 the Appellant completed an injury claim form that specified an accident allegedly occurring at work. The medical notes of Dr Sasi Nirainjanan, in support, dated 17 June 2003 record: ”Thinks that all her problems may be stemming from an injury she had 8 weeks ago. Was lifting and transferring a Pt – a tall man – at the Hospital where she works as a Registered Nurse. He grabbed her neck and since then she has been experiencing headache, stiff neck, etc. The following day she was off sick. C/O pain down her arms. But no numbness/tingling. No Bowel/Bladder Sx. 163-2004 2 O/Ex – Stiff neck + Mild tenderness over the cervical spines + Paraverterbral muscle spasms ++. OM – Active – Restricted with pain...” [10] The notes by the same doctor dated 10 June 2003 record: ”Stiff neck and stiff back. Associated headaches +. Nausea. Headache worse with any physical activity. Fatigue ++. All for the last 8 weeks. In addition associated SOB+. Distended abdomen. Was lx by regular GP – FBC – Normal. ESR – Normal. EBV serology – Past infection … Impression Multiple Sx - ? Flu like illness … ” [11] The date of the alleged injury was 22 April 2003. The statement made to AON on 26 June 2003 describes the circumstances put forward by the Appellant in support of her claim to have suffered an injury on that date. [12] The Appellant’s regular general practitioner prior to her seeing Dr Nirainjanan was Dr John Wood of the Roslyn Health Centre. His notes for the period April – June 2003 make no reference to any incident having been sustained by the Appellant as a result of lifting a patient. He noted that he had seen the Appellant a few times since April with headaches among other symptoms, but that he was not aware she had associated these with the lifting incident. [13] His notes for April 2003 refer to: “Flu/RTI sx w h/aches nausea weakness again sim feb 8/7” – an indication that such symptoms had been experienced in February 2003. [14] In his notes for a consultation on 12 May 2003 it was stated: “still not recovered – h/aches – frontal, N&V last week: says she is still unwell and unable to wk”. [15] His notes for a further consultation on 23 May 2003 record: “still a bit unwell w frontal h/aches nausea stiff sore neck and upper T spine/C spine some tenderness Mx and frontal areas ?? sinus infection – she feels it is … ” . [16] In his notes for June 2003 Dr Wood records: 163-2004 3 “remains the same w tiredness daily h/aches occ nausea ? GF – discussed – ch blds”. [17] The evidence of Mrs Thompson, a rehabilitation co-ordinator with the Otago District Health Board at review (transcript page 28) regarding when the Appellant first contacted her about the claim and whether injury was mentioned states: “I actually kept a written note of the phone call and I do that routinely. And I believe that it was the week of 10 June when I had a phone call from Jenny. And she described a history of headaches following the viral infection earlier in the year. And she was seeking a second opinion as to the problem because she said she wasn’t feeling satisfied with her GP. The options that we discussed, our service doesn’t have access to specialist medical advice. There was no mention made of a work-related injury at that time. And the symptoms she described were general flu- like symptoms. And the options that I discussed with her and advised her to get assessment from another GP or to request a specialist referral from her current GP. And that was when Jenny said that she was a student and would have access to Student Health. So, that was where we left our discussion. But certainly, there was no mention of a work-related injury. And as her employer, we were unaware of that until the CPACC form, which was probably a week later or maybe a wee bit longer than a week after that.” QUESTION: “And did she indicate to you that she’d suffered from headaches or stiff neck prior to 22 April 2003?” ANSWER: “I can’t recall in that conversation. But I have – because we’ve had many conversations and I know that she – there was an association between what she suffered in February. But I’m not sure if it was that conversation or not that that was said. But we’ve – you know, post-viral symptoms can provide similar symptoms to what she described and they can go on for quite a long time.” [18] Later in answer to questions from the appellant’s advocate Mrs Thompson said that she was saying that: “The symptoms [the appellant] described to me on the phone didn’t make me believe that there was any – that there was an injury, that it – that it related to a cluster of symptoms that can occur after a viral infection. And we’ve actually had staff who’ve had to finish work because of the fatigue and musculo-skeletal discomfort that they have.” [19] Mrs Thompson described the appellant having described headaches and fatigue as the main symptoms in those discussions. [20] Of note on file are a number of emails and other communications between the appellant and others. On 4 May 2003 the appellant stated in an email to Frances Greaves: “Hi Frances, I am beginning to think that I may have come back too early following the first bout of flu – yes, I succumbed again to the dreadful virus & a first ever double dose for me! Getting flu jab out tomorrow, albeit somewhat incongruous, 163-2004 4 but I’ll try anything now to beat this little nasty!! Still have some residual symptoms (headache, malaise), so another visit to GP to obtain further med. certificate -what a game this is. So, at the mo it’s wait & see whether I’m going to be out to Thursday am shift, but I’m staying +ve & hope that I am ….. ” [21] On 23 May the appellant sent a further email to the same recipient recording that she had “still got these wonderful heads which the GP continues to believe is ‘flu’”. [22] A further email to Ms Greaves dated 16 June 2003 states: “ …..Like, I wish some sensible medical person could establish what is medically wrong with me, instead of charging me $42 for each consultation, giving me a “pat on the head” and a med cert!! I got so fed up with that, I sought a second opinion from Uni S.H. doctor. Her opinion so far does not tally with my usual GP’s & she is determined to get to the bottom of it – thankfully! I see her again tomorrow for the results of my blood tests, taken last week. I have only been out of the house since going ill to undertake eye examination at my own initiation (that was fine, but at least I have ruled out that it is not my eyes at fault) undertake GP consultations and the like, so you can well imagine how frustrated and depressed I’m getting. I still retain the headaches, the stiff neck and stiff upper back, fatigue and muscle weakness ….. ” [23] On 29 August 2003 AON wrote to Dr Wood concerning the claim. He noted Dr Nirainjanan’s medical certificate of 8 July 2003, but that Dr Wood had certified the appellant unfit for 60 days from the 18th of August 2003. He sought some elaboration on what had occurred to the appellant’s neck injury now that she was totally unfit for any work for 60 days. Dr Wood’s response was that: “this woman continues to have pain at her cervico-thoracic junction, which does not seem to be resolving. She has had a complex of symptoms which have been difficult to sort out. Her physiotherapy exacerbated her symptoms, and she was unable to continue. She has been off work for some weeks, there seemed little point in seeing her as often as weekly, so have given her 4 weeks off from her last consultation….” [24] That report differed somewhat from a report provided by a Mr Martin Kidd, a physiotherapist, which was undated and which he recorded that : “It is my understanding of Jenny’s condition that she sustained an injury to her cervico-thoracic junction while transferring a patient at work. Jenny reports that the patient pulled on her neck to resist the transfer. This is a common sequel of a patient transfer, and results in a flexion injury to the neck. The symptoms that Jenny presents with are consistent with such an injury. She has pain on cervical flexion, felt at the C7-T4 area, and is tender and resistant to palpation there, with an increase in muscle tone on the right side of the neck and upper thoracic spine. She appears to have developed headaches secondary to this strain, due in large part to the muscle tension associated with not having been treated soon enough, and the pain/muscle spasm cycle being allowed to build. 163-2004 5 Jenny has received treatment for the last two weeks concentrating on treating the muscle spasm at the cervico-thoracic junction, and the joint dysfunction at T3 and 4. She is now significantly better to the point that light duties should be manageable at work. In summary, this does appear to be an accident-related injury, which is responding well to delayed treatment. ….. ” [25] Reports following x-rays on 27 June 2003 refer to an injury to the cervical spine some 8 weeks previously and: “Significant disc height narrowing is present at C6/7 where there is end plate sclerosis and marginal osteophytes. The upper thoracic spine appears satisfactory.” [26] Dr Nirainjanan’s report to the appellant’s solicitor of 18 August 2003 records, inter alia: “Mrs Salmon presented to me first on the 10th of June 2003 with multiple symptoms which included stiff neck and back. At that point she had been to her regular GP – According to Mrs Salmon – a couple of times. At her first visit she did not mention any injury. Therefore she was investigated as multiple symptoms – uncertain diagnosis. At her second visit she recalled an injury to her neck and her stiff neck and stiff back symptoms fitted in to the criteria of a cervical sprain. Therefore an ACC form was filled and Mrs Salmon was treated as a cervical sprain with pain relief and physiotherapy referral. Later as the pain was too excessive and was going on for too long I recommended a Specialist/Physiotherapy assessment to ACC in the ARC 18 dated 27 June 2003. According to my examination findings her symptoms are suggestive of a cervical spine sprain – Minor – with no alarm signals – No neurological deficit.” [27] In answer to the question whether: “In your opinion, is it more probable than not that Mrs Salmon sustained her cervical spine injury in the course of her employment on 22 April 2003,” [Dr Nirainjanan responded] “I am unable to comment on this as I saw Mrs Salmon around 7 weeks after the date she sustained the injury. And at the initial consult she did not mention about an injury. In the second consult Mrs Salmon mentioned the injury and the necessary steps were taken to assess and treat her cervical spine symptoms. My clinical opinion is that Mrs Salmon has symptoms and signs (minimal) suggestive of a cervical disorder but I cannot comment whether she incurred this as the result of her employment or due to the injury sustained during her employment on 22 April 2003.” QUESTION: “In your opinion, does the presence of degenerative features in Mrs Salmon’s cervical spine, particularly in the C6/7 region, make it more probable than not that her cervical spine injury was wholly or substantially the result of the ageing process, or was it caused or contributed by either a specific event or a series of events?” ANSWER: “The degenerative changes in her cervical spines could be contributing to Mrs Salmon’s symptoms from her cervical spine injury. But I cannot make any further comments and I would advise you to get a Specialists opinion on this.” 163-2004 6 [28] A further medical report to Mr Gibson from Dr Wood dated 11 September records: “This woman presented to me initially on 23/04/03, with a variety of non-specific symptoms, including upper limb girdle pains. Amongst other things it seemed she might have had viral/influenzal symptoms, and was advised/treated accordingly. I was not aware at that stage that she was ascribing her neck and upper back pain to an injury. This did not become apparent until she told me on a subsequent consultation, that she had sought another opinion at Student Health, from where her original accident claim arose. Her subsequently ongoing cervico-thoracic pain has been her limiting factor with regard to her work capacity - and it is certainly consistent with her neck/back lifting strain – but I could not comment on date of origin as it was not made clear to me at the time. This is probably not as clearcut as you or she may wish – perhaps a comment from the doctor lodging her claim might be useful.” [29] A further report has been provided by Dr E MacFadyean, a senior lecturer in hospital dentistry at the Otago University. Her report of 9 September 2003 records: “This lady presented at the Temporomandibular Joint (TMJ) Clinic at the School of Dentistry on 13 August 2003 when she complained of left TMJ pain and dislocation. She reported that the problem had arisen after lifting a patient at work when he put his arm round her neck, causing her to stumble and resulting in neck and jaw pain. She has needed to take codeine phosphate and ibuprofen (Nurofen) to relieve the pain. She advised that she had TMJ problems in the past, treated in England, and is aware that she has a malocclusion. On examination we confirmed the malocclusion and that the jaw was not dislocated. There was a normal range of movements ….. Mrs Salmon was seen again on 20 August when she advised that her jaw joint problems may not be related to her accident but to the physiotherapy advice given during rehabilitation from April till July ….. ” [30] A Dr L J Du Plessis, neurologist, provided a report on 15 September 2003. In the history he states: “During the process of the transfer the gentleman had put his arms and hands around Mrs Salmon’s neck and whilst being transferred he suddenly and unexpectantly pulled hard down on her neck towards the right side. She did not experience immediate physical discomfort and in fact was able to continue working but it was only the next morning when she woke up with a severe headache as well as pain and stiffness in her neck radiating into the right shoulder region that she realised she must have sustained some injury. Within the next day or two she also started complaining of pain shooting down the right arm. This was a sharp pain which occurred intermittently and did not last for very long. She also experienced episodes of transient weakness of the right upper limb although she admits that it was never paralysed. There was also never an associated loss of sensation. 163-2004 7 She went to see her General Practitioner, Dr Wood in the next few days but omitted to tell Dr Wood that she had been injured purely because she had not realised that there was a direct connection. Dr Wood apparently suggested that she had flue although this is not recorded in his report. He indicated that she had been seen for something else. ….. ” [31] Dr Du Plessis’ history further recorded the passage of events concerning the appellant’s headaches and on page 4 of the history report states: “The headache finally disappeared but reoccurred when Mrs Salmon unfortunately, whilst eating, dislocated her jaw. She then started again experiencing intermittent frontal headaches which were linked to pain in the tempero-mandibular joint. The pain in the tempero-mandibular joint would occur whilst eating.” [32] On page 5 of the report Dr Du Plessis states: “Note is taken of the contents of the records of Dr Wood which Mrs Salmon claims to be relatively inaccurate as he omitted to enter certain of her symptoms and physical findings. Note is also taken of the content of the report from Student Health Service. This she claims is a more accurate reflection of her symptomatology and ongoing discomfort.” [33] He further records on page 5 that: “She denies any previous head injury or epilepsy and she did not previously complain of headache although in the report from Dr Wood mention is made of a headache which occurred in February, 2003. Mrs Salmon denies that she ever consulted Dr Wood for a headache.” [34] Dr Du Plessis’ opinion on page 9 records: “Mrs Salmon had pre-existent asymptomatic degenerative cervical spinal pathology. She did not experience physical discomfort in the neck or the shoulders or the head prior to the injury she sustained on 22 April, 2003 when her neck was suddenly wrenched whilst lifting a patient. Although she was not symptomatic immediately after the incident, by the next morning her symptomatology consisting of headache and cervical pain radiating down to between the shoulders and into the right shoulder and arm had developed, and this persisted and required further treatment. The symptomatology was the result of muscular injury superimposed on the pre- existent asymptomatic cervical pathology. There was no evidence to confirm that she has suffered as associated bony injury.” [35] Under his conclusion, Dr Du Plessis states: “It is my opinion that Mrs Salmon suffered a muscular injury in the cervical area superimposed on pre-existent asymptomatic cervical degenerative pathology when 163-2004 8 her neck was accidentally forcefully twisted by a confused patient while she was lifting him.” The Reviewer’s Decision [36] The reasons set out in the reviewer’s decision at paragraphs 4-17 set out the medical documentation. The reviewer noted that the real issue was whether the appellant sustained a work related personal injury caused by an accident while in the employ of the Otago District Health Board on 22 April 2003. However, the reviewer concluded that the appellant had fallen short of discharging the onus to establish that on the balance of probabilities that the injury complained of had been suffered during the course of her employment. The reviewer noted a number of unusual features to claim. These included that: [a] The evidence of the registered general medical practitioners was “quite equivocal” and that both GPs were unwilling to say that the appellant had sustained an injury while in the employ of the ODHB on the day in question. [b] That Dr Wood had at the consultation on 30 April 2003 diagnosed that the appellant was suffering from flu/respiratory tract infection with symptoms of headaches, nausea and weakness which were similar to those that she experienced in February 2003 and which were again noted in May 2003, with Dr Wood’s notes only recording a stiff sore neck for the first time on 23 May 2003 and, subsequently, while he had seen her a few times since April with headaches amongst other symptoms, he had not been aware that she had associated those with the lifting incident. [c] Dr S Nirainjanan had also noted a number of non-specific symptoms with a stiff neck/back, headaches, nausea and fatigue, and was suspicious of flu like illness. [d] The reviewer concluded that the medical evidence was very ambiguous and that Dr Nirainjanan’s opinion that “she suffers from some sort of “cervical disorder”” (albeit with minimal symptoms and signs) is probably the most accurate description of her presentation and it is self evident that such problems can arise in a 163-2004 9 myriad of ways – and many people in the community experience wry necks from time to time. [37] The reviewer did not accept Dr De Plessis’ opinion for a number of reasons, including doubt as to the diagnosis, the absence of any consideration of concerns raised by Dr Percival; including the primary concern that one would have expected the neck symptoms and signs to have been recorded by Dr Wood in his earlier consultations and that the headaches described were frontal in nature which would rule out a sprain injury to the neck. He further noted that the diagnosis was made several months after the event which was pertinent given that it involved a lesion like a sprain or strain and that reading between the lines he felt it more likely than not that a degenerative condition was responsible for her symptoms of pain and stiffness, citing the decision of Judge Beattie in Ford. [38] The reviewer recorded that he found the appellant to be a somewhat vague witness and he doubted the full accuracy of her testimony, particularly as a result of her denial and the file note of Mrs Thompson dated 20 June 2003, which the reviewer put to her but which she denied. He recorded this appeared to be at variance with her statement to AON. It should also be noted that it was at variance with the evidence of Mrs Thompson’s at the review hearing. The Law [39] The onus rests upon the appellant to establish, on the balance of probabilities, that she sustained personal injury by accident in respect of the claimed injury on 22 April 2003. As has been stated on many occasions, the establishment whether a valid claim to cover exists largely rests on the medical evidence and the background of fact leading to diagnosis. As Priestley J said in Wakenshaw (HC Auckland, AP 29/03, 19 June 2003) it is trite law there must be a nexus between a personal injury by accident and a claimant’s condition before there is an entitlement to cover. This was a core principle of the legislation. This particular issue would require a close examination of the factual situation, which in turn gives rise to the medical diagnosis. 163-2004 10 The Medical Specialist’s Reports [40] On 15 September 2003, Dr Du Plessis, neurologist, reported. He said that the appellant gave a history of working as a part-time nurse, and on the day in question she was allocated two relatively difficult cases to nurse, in addition to two other patients. One of the difficult patients was a gentleman who was confused and the other person was quadriplegic. [41] The confused person requested to be taken out of bed and the appellant saw this as some improvement in his condition, and agreed to take him out of bed. To assist her she requested the caregiver of the quadriplegic patient to stand by, although the caregiver was never required to assist her physically in the transfer of the confused gentleman into the chair. [42] During the process of the transfer the patient put his arms and hands around the appellant’s neck, and while being transferred he suddenly and unexpectantly pulled hard down on her neck towards the right side. [43] She did not experience immediate physical discomfort, and in fact was able to continue working, but it was only the next morning when she woke up with a severe headache as well as pain and stiffness in her neck radiating into the right shoulder region that she realised that she must have sustained some injury. Within the next day or two she also started complaining of pain shooting down the right arm. This was a sharp pain which occurred intermittently and did last very long. She also experienced episodes of transient weakness of the right upper limb, although she admits it was never paralysed. [44] She went to see her general practitioner, Dr Wood, in the next few days, but omitted to tell Dr Wood that she had been injured purely because she had not realised that there was a direct connection. Dr Wood apparently suggested that she had flu, although this is not recorded in his report. He indicated that she had been seen for something else. [45] Her symptomatology persisted necessitating her to return to Dr Wood several times during May and in the ensuing period. 163-2004 11 [46] When she went to visit him the first time in May she still complained of ongoing stiffness and pain in the cervical area as well as discomfort in the right shoulder area and the headache. It was only later in May that she again returned to see Dr Wood complaining of headache, neck pain and upper thoracic spine pain, and at that stage she recorded that there was tenderness of the thoracic and cervical area. [47] She underwent a cervical x-ray which suggested that there was C6/7 narrowing with associated degenerative changes, but there is no record there was any evidence of any new pathology. [48] Since the original injury the appellant had continued to complain of persistent symptomatology of one form or another, but in the recent weeks she had suddenly experienced significant improvement in her neck discomfort, as well as in the pain in the right shoulder and arm regions. [49] The headaches finally disappeared, but reoccurred when the appellant unfortunately whilst eating, dislocated her jaw. She started again experiencing intermittent frontal headaches which were linked to pain in the tempero-mandibular joint. [50] In the opinion of Dr Du Plessis, the appellant had pre-existent asymptomatic degenerative cervical spinal pathology. She did not experience physical discomfort in the neck or the shoulders or the head prior to the injury she sustained on 22 April 2003 when her neck was suddenly wrenched while lifting a patient. [51] Although she was not symptomatic immediately after the incident, by the next morning her symptomatology consisting of headaches and cervical pain radiating down to between the shoulders and into the right shoulder and arm and this developed and persisted and required further treatment. [52] In the opinion of Dr Plessis, the appellant had suffered a muscular injury in the cervical area superimposed on pre-existent asymptomatic cervical degenerative pathology when her neck was accidentally forcefully twisted by a confused patient while she was lifting him. [53] This resulted in physical discomfort developing in the cervical area which had until very recently been very significant and had precluded her from participating in activities of daily living, as well as working and continuing with her 163-2004 12 studies. She had also developed cervicogenic headache which improved after the appropriate cervical physiotherapy only to be reactivated by a subsequent but different pathology. [54] Dr Du Plessis again reported on 29 April 2004. He said the appellant went to see her doctor the day after the incident with symptoms. She did not link them initially to the lifting incident the day before, but complained of non-specific symptoms including a headache, nausea and weakness, and also mentioned that she had pain under the jaw on the right side. This pain did not refer to the temporal mandibular joint, but most likely reflected some injury to the sternocleidomastoid muscle. This is the muscle reaching from behind the left ear to the clavicle anteriorly. This muscle is involved in neck rotation. [55] The appellant had consistently indicated that the patient whom she had been lifting at the time had put his arms around her neck and there was a distinct probability that the neck would have suffered some injury during the lifting process. The patient was reported to have pulled down hard on her neck to the right side which would have caused the necessary injury to the neck. [56] Her symptomatology was initially thought to be related to a flu-like illness, but in the opinion of Dr Du Plessis there was little evidence to substantiate the suggested diagnosis. In hindsight as the symptomatology persisted and was not short-lived, as would have been expected with a viral flu-like illness. For those reasons it was much easier to be sceptical about the initial diagnosis. [57] When she went to see Dr Nirainjanan, the appellant did not realise the symptoms she was complaining of could have any relationship with the lifting of the patient. It was only at a later consultation on 27 June 2003 that it appeared that there was a connection established between the ongoing symptoms and the injury eight weeks earlier, and she was referred for x-rays which then show cervical pathology. [58] Dr Du Plessis said as indicated in his earlier report, he acknowledged the fact that the degenerative disc pathology was present at the time of the injury, but that it was asymptomatic. Symptoms, although initially fairly non-specific were recorded the morning after the incident, and therefore had to be the result of the injury sustained to the neck muscles during the time when her neck was wrenched. 163-2004 13 [59] Dr Du Plessis said there was no doubt that the headache was cervicogenic in origin and concomitant with the improvement of the cervical pathology the headaches have also started settling, and she now only has headaches on occasions, although she has no further cervical discomfort. [60] In conclusion, Dr Du Plessis said that he agreed with Dr Theis that the appellant had a cervical spine injury. While both found evidence of degenerative spinal disease, it was felt the injury was caused by the wrenching of the neck which was the cause of her pain and discomfort. [61] The fact that her symptomatology was initially fairly non-specific he felt was not of importance, but what was of importance was that the ongoing symptomatology since the time of the incident was extended for several months before it slowly settled. [62] For the initial symptomatology to be related to a viral flu-like illness, in hindsight was incorrect, as the symptomatology from a flu-like illness would have settled in a reasonable time frame. [63] Dr Theis reported on 3 November 2003. He set out the history and examined the hospital notes and x-rays. [64] He said he understood the appellant had woken up with headaches on the morning of 23 April 2003, and saw her general practitioner, Dr John Wood, who put her off work with a diagnosis of post-viral headaches. At the same time she had some neck pain, but it seemed that the headaches were the main reason for her seeking advice from her general practitioner. She felt she had never experienced headaches like that and recalled asking her general practitioner for neck physiotherapy but apparently was told this was not necessary. [65] The conclusion of Dr Theis was the appellant had developed a neck pain as well as occipital headaches in April 2003 which could be attributed to an event in the workplace on 22 April 2003. X-rays showed a decreased disc space at the level of C6/C7 on the basis of degenerative disc disease, and she also had a problem with her jaw and mild osteoarthritis of both knees. [66] The doctor’s clinical findings were consistent with a cervical spine problem on the basis of degenerative disc disease at the level of C6/C7, which had been made 163-2004 14 symptomatic as a result of an incident at work when she suffered a wrenching type injury to her neck. [67] The neck symptoms had improved, although she still got occasional headaches, and the main issue at the moment was the ongoing pain in the left temporo mandibular joint. The Submissions of the Appellant [68] The appellant submits that she suffered injury in the course of her employment when she was lifting a patient from his bed into a wheelchair. The manoeuvre involved the patient putting his arms around the appellant’s neck while she transferred him from the bed to the wheelchair. [69] The following morning the appellant experienced pain and discomfort in her cervical spine region and was unable to get to work. [70] The appellant subsequently sought treatment from Dr John Wood, her general practitioner. Dr Wood initially diagnosed her as having flu, in spite of her symptoms including headaches and lack of movement in her neck region. [71] Dr Wood referred the appellant for physiotherapy treatment. [72] On 2 May 2003, while preparing a meal at home, the appellant dislocated her knee. [73] On 14 June 2003, the appellant sought treatment from Dr Sasi Nirainjanan, a medical officer at the Otago University’s Student Health Service. She diagnosed the appellant as having a cervical sprain injury arising from her accident on 22 April 2003. She certified the appellant was incapacitated for work for fourteen days. [74] On 16 June 2003, the insurers wrote to the appellant requiring personal information before it could make a decision. [75] On 8 July 2003, the respondent wrote declining her claim for cover. 163-2004 15 [76] On 28 July 2003, it is submitted Dr Wood completed another form in which he diagnosed the appellant as having a jaw injury as a result of her accident on 22 April 2003. [77] On 11 August 2003, the appellant’s advocate wrote to Dr Nirainjanan and asked a series of questions concerning the appellant’s cervical spine injury. [78] On 13 August 2003, at the request of the respondent, the appellant wrote and signed a declaration concerning the nature of her jaw injury. The appellant stated that she believed her jaw injury was a direct result of her cervical spine injury. [79] On 18 August 2003, Dr Nirainjanan replied to the appellant’s advocate with answers to his questions and a copy of the treatment notes. [80] Similarly, on 8 September 2003, the appellant’s advocate wrote to Dr Wood asking a series of questions concerning the appellant’s spinal injury. [81] In the report of Dr Nirainjanan dated 18 August 2003 it is submitted that the doctor begins her report by noting that she first treated the appellant on 10 June 2003 after she presented with symptoms including a stiff neck and back. [82] After a second consultation a claim was lodged on 27 June 2003 with a diagnosis of a cervical strain/sprain as a result of the lifting injury on 22 April 2003. [83] The submission is that this diagnosis amounts to a physical injury for the purposes of the legislation. [84] However, Dr Nirainjanan noted that she did not provide treatment to the appellant for seven weeks after the alleged date of her injury, and that therefore she was not prepared to commit herself to saying that the appellant injured herself in the course of her employment with her employer. [85] The submission is that this qualification is evidence of an overly defensive approach to the practice of medicine. A further submission is made that the doctor does not offer any conclusion that the appellant suffered her physical injury outside her employment. 163-2004 16 [86] In respect to Dr MacFadyean’s report, the submission is that that report in its history provides an account by the appellant as to how she sustained her injuries, before concluding that her jaw problems may have been the result of physiotherapy treatment which she received for her cervical spine injury. [87] The submission is that this report assists the appellant in proving that it was more probable than not that she suffered personal injury in the course of her employment on 22 April 2003. [88] In respect to the report of Dr Wood dated 13 September 2003, the submission is that Dr Wood begins by noting that he did not diagnose the appellant as suffering a cervical spine injury at her first consultation, and that he thought she was suffering from some form of viral infection or influenza. [89] The submission is the viral condition may have masked the neck injury, but did not replace it. [90] Dr Wood then went on to note that the appellant’s ongoing symptoms were consistent with a neck or back-lifting strain, although he would not commit himself to a definite date of the injury. Decision [91] I accept at once the conclusions of the two specialists that the appellant suffers from a cervical spine problem on the basis of degenerative disc disease at the level of C6/C7. [92] However, the issue in this case is whether the cervical spine problem was made symptomatic as a result of an incident at work when she suffered a wrenching type injury to her neck. [93] To a large extent the answer to that particular issue depends on the accounts of the appellant concerning her injury, and how it happened, and the reasons why she did not report the circumstances of the accident until 10 June 2003. [94] In his letter dated 11 September 2003, Dr Wood said that the appellant presented on 23 April 2003 with a variety of non-specific symptoms, including upper limb girdle pains. Amongst other things, it seemed to him that she might have 163-2004 17 had viral/influenza symptoms, and was advised and treated accordingly. He was not aware at that stage that she was ascribing her neck and upper back pain to an injury. This did not become apparent until she told him on a subsequent consultation. He felt that the ongoing cervical thoracic pain was certainly consistent with a neck/back lifting strain, but he could not comment on the date of origin, as it was not made clear to him at that time. [95] He concluded his letter by saying: “This is probably not as clear cut as you or she may wish – perhaps a comment from the doctor lodging her claim might be useful.” [96] Dr Nirainjanan in her report of 18 August 2003 in answer to the question “In your opinion, is it more probable than not that Mrs Salmon sustained her cervical spine injury in the course of her employment on 22 April 2003” said: “I am unable to comment on this as I saw Mrs Salmon around seven weeks after the date she sustained the injury. At the present consult she did not mention about an injury. In the second consult Mrs Salmon mentioned the injury and the necessary steps were taken to assess and treat her cervical spine symptoms. My clinical opinion is that Mrs Salmon has symptoms and signs (minimal) suggestive of a cervical disorder but I cannot comment whether she incurred this as the result of her employment or due to the injury sustained during her employment on 22 April 2003.” [97] The appellant appeared at the review hearing, and the reviewer said that she seemed to be a somewhat vague witness at the hearing, and that he doubted the full accuracy of her testimony. The appellant had denied suffering from any neck stiffness or headache prior to the lifting incident, notwithstanding the contents of a file note dated 20 June 2003 he put to her. In that file note she said she had a viral illness at the beginning of the year which gave her a stiff neck and headaches for many weeks. She still had a mild headache and neck stiffness at work on 22 April 2003 when she was transferring a tall, confused patient from his bed to the chair by herself, and he held her with his arms around her neck. [98] The reviewer said that the appellant’s testimony appeared to be at variance to the statement that she had made on 26 June 2003. In that statement she stated that: “I did not at the time experience pain – perhaps because I had suffered a stiff neck and back from what my GP described as flu two months previously … It was the next day when I arose that the symptoms I still possess struck me. These included increased stiffness of neck and back, severe headaches, dizziness … ” 163-2004 18 [99] The reviewer said these comments suggested to him that her problems were pre-existing, albeit less severe to the lifting incident, and hence the concerns about the testimony. [100] After reviewing all the medical reports, and allowing for the fact that the flu like symptoms may well have subsided before April, I cannot conclude on a probability basis that the alleged accident at work on 22 April 2003 resulted in the appellant’s present symptoms. [101] The reviewer heard and saw the appellant, and I cannot conclude on the inferences that he drew as to the accuracy and reliability of her testimony, should be disturbed. [102] Similarly, neither of the two general practitioners who saw her early on were prepared to state on a probability basis that the accident at work caused her present symptoms. The conclusions drawn by the specialists as to her present back condition are accepted, but the specialists themselves, apart from saying that those symptoms are consistent with the type of accident that the appellant describes, cannot carry that issue any further. [103] The appellant has not demonstrated on a balance of probabilities that the alleged accident on 22 April 2003 was the substantial cause of her present symptoms. For the reasons that I have given, this appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this ……16th....… day of ………June………. 2004 (J. Cadenhead) District Court Judge 163-2004 19