Cronin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. | 45 /97 HELD AT CHRISTCHURCH IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JEREMIAH JOSEPH CRONIN Appellant (Appeal No. DCA 120/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of June 1997 APPEARANCES Andrew Cadenhead for appellant Clare Taylor for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against the decision of a review officer given on 29 March 1996 confirming the Corporation's decision that entitlements relating to the appellant's injury of 19 April 1994 were to cease. The appellant suffered an injury to his back while painting the ceiling of his house when he fell and twisted his back, developing a sudden onset of lower back pain. Mr Z J Poplawski, orthopaedic surgeon, examined the appellant at the request of his general practitioner on 3 August 1994, and found that he had a history of recurrent lower back pain apparently connected with chronic spinal degeneration but without any significant episodes requiring time off work. Mr Poplawski said that the injury in April 1994 resulted in precipitation of symptoms in the appellant's back. They had - 2 - resolved in large measure by the time Mr Poplawski reported to the Corporation on 23 September 1994. In April 1995 Mr Poplawski reported that the appellant continued to be troubled by recurrent back pain, with left sided sciatica which was then relatively occasional. X-ray examination showed disc narrowing with associated degenerative changes at the L5 S1 level. He reported that the appellant had a chronic disc degenerative problem at the L5 S1 level which would always result in the symptoms that the appellant was experiencing. Those observations were consistent with the appellant's symptoms having reverted to the kind of symptoms he had experienced before the April 1994 accident, or the symptoms that he could expect to continue to experience by virtue of the degenerative condition of his spine which he already suffered prior to the accident. He was examined by Mr D J Jones, orthopaedic surgeon, who reported on 2 August 1995. Mr Jones said that the appellant had chronic low backache, was unable to bend, and had considerable back pain at night with cramp radiating down into his left leg. X-rays of 20 April 1994 confirmed long standing lumbo-sacral disc absorption. He gave the following opinion: "This man had a longstanding problem at the lumbo-sacral junction which typically gives rise to chronic low backache and aching referred out into buttock and thigh The vast majority of his ongoing symptoms are related to the degenerate disc and are unrelated to injury as such, however he still shows evidence of slight weakness in his left leg in the L5 distribution and it is not possible clinically to determine whether this is due to a lateral disc prolapse at the lumbo-sacral junction or whether it is due to a small prolapse at the L4-5 level, the level above. I think the quickest way to determine the diagnosis here would be to have a CT scan performed of the lower three segments of his lumbar spine and this would determine whether or not there was an associated disc prolapse. If there was not an associated disc prolapse I would consider this man's ongoing problem was entirely related to the natural history of the worn lumbo-sacral junction and would not in that case consider he was the ongoing responsibility of the ACC. If a disc prolapse was confirmed however the decision as to the ACC's responsibility would be a little more complex. Such information however I think is essential before a final comment could be made This man is certainly perfectly capable of sedentary light work. Mr Poplawski has indicated that at this point. I note with interest that on a certificate issued on the 31 May 1994, his general practitioner felt that he would be capable of returning to work within a couple of weeks, which would suggest that his disability at that time was not a major one. Once the Ct scan was reviewed I could offer a more definitive comment." Mr Jones' report indicated that a majority of the symptoms could be ascribed to the degenerative disc but he kept open the possibility that a weakness in the appellant's left leg could be connected with lateral disc prolapse, but that, if that possibility could be eliminated, he would put down the symptoms to the natural history of the worn lumbo-sacral junction. A scan was obtained and did not show any evidence of a disc -3 - prolapse. Mr Jones confirmed his opinion on 5 September 1995 that the appellant's ongoing problem was the natural history of his failing lumbo-sacral disc which was well-established prior to his injury on 19 April 1994. At that stage, the appellant had apparently exhibited continuing symptoms since the April 1994 accident which were more marked or debilitating than the symptoms prior to the accident caused by his degenerative spine. When the appellant gave evidence at the review hearing he said that between 1994 and the time of the review his condition had improved but the pain in his back was the same and he would have some good days and some bad. After giving up golf for a year he had rejoined his golf club, and he was assisted by a light brace which he used for playing golf or driving In September 1995, on the basis of the information received from Mr Poplawski and Mr Jones, the Corporation had formed the view that the appellant's continuing impairment was connected only with degenerative back changes present before the accident. Compensation was therefore terminated and the appellant applied for review. That decision was supported by the Corporation's branch medical adviser. It should be noted that the appellant had suffered an injury in 1975. That was mentioned in a further report given by Mr Poplawski on 18 September 1995 in which he stated: "Firstly if documentation of his original injury exists and the relevant ACC forms were filled at the time then there should be no question that he is ACC responsibility as the chronic degenerative changes at the lumbar sacral level have developed as a result of injury occurring twenty years ago i.e. in 1975 which is after the start of the Accident Compensation system. If no such documentation exists then the Corporation will, in general, not accept liability retrospectively. The second point is that Mr Cronin was able to work physically hard prior to his injury on 19.4.94 despite the radiologically evident chronic degenerative changes at the L5 S1 level in his lumbar spine. As outlined above this included heavy lifting and bending activities and although Mr Cronin did have some symptoms in the form of low backache these were of insufficient severity to interfere materially with these activities. On the other hand following the injury on 19.4.94 Mr Cronin has been unable to return to these activities. His symptoms have remained much more severe than prior to this reinjury and in fact he has remained unable to even stand or sit for a prolonged period of time let alone carry out heavy bending and lifting activities. It seems to me therefore that the reinjury Mr Cronin sustained on 19.4.94 has precipitated troublesome symptoms in a back in which chronic degenerative changes were pre-existing but which was only mildly symptomatic until that time. I would consider therefore that the reinjury Mr Cronin sustained has resulted in aggravation of his problem and the precipitation of symptoms which are much more severe than would have been expected to have occurred in the natural course of his degenerative back problem. I cannot say with certainty that had Mr Cronin not injured his back in April of last year he would today be symptom free enough to be able to go back to his usual work. It is feasible that the natural progression of his lumbar sacral degeneration would be causing severe symptoms by now anyway. However when one - 4- considers what he was able to do prior to this injury it seems reasonable to assume that he would still be essentially the same today as symptoms generally tend to progress very slowly and gradually in the natural course of this disease In my opinion Mr Cronin should remain ACC responsibility until his symptomatic state returns to near the level it was prior to 19.4.94." That report was received after the Corporation had already given its adverse decision. In a later letter to the appellant's solicitor, Mr Poplawski clarified aspects of his original advice to the Corporation and attributed the severity of symptoms since April 1994 to the accident suffered at that time. He referred to the difficulty involved in the question whether the appellant might have suffered symptoms of equal severity from the progression of his degenerative spine. He thought it reasonable to assume, in view of the appellant's history, that the symptoms would have increased more gradually. Mr Poplawski wrote to the appellant's solicitor on 18 December 1995 confirming that view once again. The review hearing took place on 23 February 1996. At the hearing the appellant produced a letter from Mr S R Morse, chiropractor, stating: "Radiographs taken here on 20.4.94 show marked degenerative changes in the upper and lower lumbar spine particularly at L5/S1, most likely as a result of long term deterioration of the intervertebral disc. Mr Cronin made some degree of progress with his chiropractic treatment at this clinic. At the time of his last treatment in July 1994 he had no low back pain and his lumbar range of motion was improved although still not ideal. However he still had a lesser degree of left sciatic nerve pain and the weakness was still evident in the left foot, particularly for the first half of each day. This was still causing Mr Cronin to limp noticeably at the time of his last visit here. Mr Cronin had I believe suffered from an acute deterioration of a previously chronically degenerating L5/S1 intervertebral disc. Most likely prolapsed disc material was the cause of the left sided nerve root irritation that inevitably lead to the atrophy and weakness in the left thigh and calf muscles." The review officer dealt at some length with the medical opinion and with the appellant's own evidence of the history of his symptoms. He considered that Mr Jones was conclusive in his findings. He referred to the improvement in the appellant's condition referred to in various reports. He referred to the reports of Mr Poplawski and Mr Morse, both of which tended to favour the appellant's case, but on balance he was persuaded that the ongoing symptoms relate to the natural progression of the pre-existing lumbo-sacral disc degeneration. The Corporation's decision was therefore upheld. On the hearing of the appeal, further reports were introduced with leave. The first is a report by Professor Bill Glass, occupational medicine specialist of Christchurch. Professor Glass examined the appellant and obtained a work history from 1952 onwards. He said significant back pain followed a work injury in about 1972 when the appellant was informed by a general practitioner that he had "a disc" and should take care but would always have a problem. Thereafter he had pain in the lower back and down his left leg consistently. Professor Glass referred to the circumstances of - 5- the April 1994 accident and the continuing serious symptoms. He referred to x-rays of 3 August 1994 showing marked narrowing of the L5 S1 disc space and moderate narrowing of the L4/5 disc space with osteophytic lipping particularly at the L5 S1 level. He said: "Thus we have a situation in which Mr Cronin suffered a back injury (probably a disc prolapse L5/S1) some 24-25 years ago or thereabouts - there is some doubt exactly what date - which has left him with chronic back pain. Nevertheless he continued to work in a range of situations which required prolonged standing, bending, twisting and lifting. In other words the consequences of that injury did not prevent him working even when he did so with a degree of chronic pain. In April 1994 Mr Cronin had a clearly defined and documented injury to his back. He was carefully examined by an orthopaedic surgeon (Mr Poplawski) who he saw a number of times thereafter. As a consequence of that injury Mr Cronin has not been able to carry out his previous occupation, he had continual pain and on examination (May 1996, Dr Burry) he is still impaired in terms of the functioning of his lower spine and is thus disabled. There has been a qualitative change in the nature of Mr Cronin's back pain and disability following his injury of 1994. Dr Burry records this quite clearly, as does Mr Poplawski. Both specialists looked logically at the natural history of Mr Cronin's back punctuated as it is by two specific injuries and both conclude that an acute disabling injury occured. Mr Jones speculated that the change in Mr Cronin's symptoms occured as a result of a gradual degeneration of his spine - "failing of his lumbar-sacral disc". There is no evidence to support this viewpoint - it assumes that at a point in time, unrelated to any external clause, a degenerative back suddenly, for no reason, becomes significantly worse and incapacitating. OPINION It is my view that Mr Cronin had an injury (1994) occuring to an already degenerative lower back which then resulted in a qualitatively different level of pain and disability. There is a clear temporal cause and effect relationship between that injury and his current level of back pain." That evaluation of the injury and its symptoms concurred with Mr Poplawski's more recent view that the appellant suffered a disability consequent on the April 1994 injury as distinct from the continuing symptoms from the degenerative spine as it was before the accident. Professor Glass referred to an opinion given by Dr Burry, but that opinion did not accompany the material furnished in support of the appeal in October 1996. The omission was apparently accidental. Dr Burry's report was furnished on 27 March 1997. Dr Burry stated: "It is clear that Mr Cronin experienced an episode of mechanical dysfunction of his lumbar spine in April 1994 with associated entrapment of the fifth left lumbar nerve root. This would account for the previously noted weakness of dorsiflexion of the foot, the distribution of his pain and the continuing sensory disturbance. It would also be consistent with the presence of narrowing of the lumbosacral disc space by degenerative change. It is not uncommon for this type of nerve root entrapment which usually occurs in these circumstances in the foramen (the - 6- narrow passage between adjacent vertebra through which the nerve root emerges from the spinal canal to form the sciatic nerve) to remain undetected by CT scan or indeed myelogram and may require MRI with contrast imaging for confirmation although the clinical pattern of symptoms and signs is usually quite easily recognisably. I have no doubt Mr Cronin's painful condition and incapacity is the result of a mechanical event which resulted in nerve root entrapment with accompanying muscle spasm and compromised function. Although it is true to say that such events might be more common in persons who have previous history of similar problems and have xray evidence of substantial degenerative change in the lumbar spine, such a severe and prolonged episode of pain and reduced function as Mr Cronin has experienced is by no means inevitable and there was a reasonable expectation that he could have remained in employment requiring moderately severe physical activity for years to come. Unfortunately the medical profession has become over reliant upon imaging techniques to provide diagnosis of lumbar spinal disorders. It is now realised that degenerative change occurs in the intervertebral discs from the third decade. It is a natural process which does not necessarily lead to the development of any symptoms or functional disturbance whatsoever. Further to this, it has been shown that evidence of degenerative change and intervertebral disc abnormalities such as Mr Jones sought by means of CT scan, can be found just as commonly in persons who have no symptoms whatsoever as they can in persons with back pain. A similar situation relates to the presence of disc space narrowing demonstrated in plain xrays of the spine. Therefore Mr Jones' assertion, that Mr Cronin's predicament did not result from any acute event but merely represented a continuum of inevitable increasing incapacity related to degeneration in the spine, can be rejected as inaccurate Mr Poplawski is a competent and experienced surgeon and had the advantage of examining Mr Cronin throughout the acute phase of his back injury and his opinion can be respected. I support his contention that Mr Cronin's ongoing disability has resulted from an acute event. There is evidence of slow improvement in Mr Cronin's disorder and his rate of progress may well be accelerated by appropriate physical reconditioning programmes. The likelihood is that this favourable progress will continue and he should be encouraged to persist in his search for suitable employment as he is obviously a very capable person and not well suited to a largely inactive lifestyle." This report not only supported the views of Mr Poplawski and Professor Glass, but it also outlined the diagnostic difficulties associated with soft tissue damage that is not evident on x-ray, CT scans or myelogram. Professor Burry relied on the clinical signs and reached a conclusion that the ongoing disability has resulted from an acute event. Counsel for the Corporation requested an adjournment to obtain further expert examination and opinion. Although there was some basis for the application, I resolved to decline it because the report of Professor Burry had been available for nearly three months before the hearing of the appeal and it did not introduce completely new material, although it assisted by providing a commentary on diagnostic problems which may not otherwise be evident. Mr Cadenhead supported the diagnostic evidence with extracts from Nortin M Hadler, MD Occupational Musculoskeletal Disorders, Raven Press; and J H and P J Cyriax, Illustrated Manual - 7- of Orthopaedic Medicine, 2nd ed., Butterworth Heinemann. Those texts are of limited evidential value but served to place Professor Burry's opinion in context. If the whole of this evidence had been before the review officer, he may have taken a different view of the matter. Upon the material that is available to the Court, it appears more probable that the appellant suffered continuing symptoms of a relatively serious kind from injury to his spine in April 1994 which is likely to have included soft tissue injury by way of nerve root entrapment, and it is less likely that he suffered a more or less short-lived period of exacerbated symptoms relating to a previous back condition. The weight of evidence is that, at the time of the reports in mid 1996, the appellant continued to suffer a degree of incapacity attributable to the April 1994 injury and there was no basis for his entitlements to be cancelled by virtue of s 73 of the Act. For those reasons, the appeal is allowed. The appellant will have costs of $800. DATED at WELLINGTON this 14th day of July 1997 D A Ongley District Court Judge