Lambert v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 232 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JILL THELMA LAMBERT of Christchurch Appellant (Appeal No. DCA 161/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 20th day of October 1998 APPEARANCE/COUNSEL K Stringleman - advocate for the appellant J D Palmer for the respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to decline to make further payments of weekly compensation in respect of an injury suffered by the appellant on 21 July 1996. The appellant worked for an airline and sprained two joints in her back when processing passengers and their luggage at a check-in counter. She apparently reached over to lift luggage at arms length and noticed increasing pain and discomfort in her low back. She continued to work for the balance of that day but on 2 the following day consulted her general practitioner when she was advised that she had sprained two joints in her lower back. A claim for cover was then lodged with the respondent which was accepted on 10 September 1996. The appellant apparently then returned to work when the back problem appeared to have resolved but continued to experience problems when lifting heavy luggage. On 8 July 1997 the respondent notified the appellant's employer that it intended to classify the appellant's claim as a work injury. The appellant's employer disputed the fact that the claim was a work injury and advised the respondent that the appellant had suffered similar injuries during July 1996 and in particular on 13, 14, 19 and 21 July of that year. The employer indicated that those injuries were reported as having been caused by the appellant reaching for passenger tickets rather than by lifting luggage. The employer then provided a report from a physiotherapist who had treated the appellant in which the physiotherapist considered the back pain was the direct result of lifting luggage. On 1 August 1997 the appellant completed a declaration in which she stated that her back injury had been caused by having to reach for passenger tickets and uplifting heavy luggage from the check-in scales to the conveyor belt located behind the check-in counters. A radiological report dated 6 September 1996 stated: "There are well marked degenerative changes at the lumbo sacral level with considerable disc narrowing and moderate marginal osteophytic lipping. Similar but less advanced changes are present at L4/5. Limited views of the sacroiliac joints are within normal limits." The respondent's branch medical adviser considered that the injuries were consistent with the radiological report and on 26 September 1997 the respondent confirmed that the injury was accepted as a work injury. On 15 October 1997 the respondent obtained a report from Mr D Jones, an orthopaedic surgeon. That report outlined the appellant's occupational history and job description and details of how the appellant considered the problem had arisen. Mr Jones' summary and opinion was: "SUMMARY Mrs Lambert is a 45 year old ticketing clerk employed by Mt Cook Airlines who has worked in the airline industry for the last twenty eight years. On 21st July 1996 after lifting awkward heavy luggage she became aware of increasing low back pain which subsequently was confirmed on x-rays to be due to major wear problem in her low back. There is nothing to suggest that she has suffered a disc rupture. Her symptoms have essentially settled and she is currently coping with work. 3 In my opinion her symptoms were compatible with the stated history and mechanism of injury. Her impairment however was compounded by the pre-existing asymptomatic wear changes noted on x-rays. Mrs Lambert does not show any evidence of an abnormal pain response. Her condition is now stable, she is coping with her work, but realistically she should avoid heavy lifting. In answer to your specific questions: The full diagnosis is lumbar spondylosis aggravated by injury, - the lumbar spondylosis was pre-existing but may have been compounded by her work practices over the twenty eight years working in the airline industry. Her symptoms have resolved to an acceptable level, she experiences stiffness in her back and difficulty turning in bed at night and this will be a permanent feature of her degenerative changes. With time the degenerative changes in the L4-5 level may increase. The relationship between the type of work that she performed and her present symptoms is consistent with the mechanism of injury. The previous conditions or underlying conditions are a significant factor in the significant discomfort that she developed. There were no psychosocial factors contributing to her presentation and it would appear that the work dispute that you have recorded has been resolved. At this point there is no further treatment to be considered. Longterm if her lifestyle becomes compromised because of backache she may have to consider stabilisation of the lower two segments with a spinal fusion. Mrs Lambert has recovered from her injury and is working in full time duties. Realistically it would be sensible for her to move into an area of work which avoided lifting of suitcases. She would be perfectly capable of working in a ticketing reservation clerical situation. I do not consider that she has any ongoing specific restrictions due to her accident on 21st July 1996, but if she continues to lift heavy suitcases she will inevitably develop further episodes of back pain. As a result of that opinion the respondent notified the appellant on 12 November 1997 that pursuant to s.73(1) further entitlements had been cancelled because her ongoing incapacity was not accident-related. The appellant applied for a review of that decision which was confirmed by the review officer. At the review hearing Ms Stringleman was granted leave to adduce a report from Mr G J Lester, an orthopaedic surgeon, which is dated 16 September 1998. Mr Lester's summary and opinion was: "SUMMARY In summary therefore this person presents as one who gives a history of having sustained an injury to the lumbar region in a lifting incident on 21.7.96. This gave rise to pain in the lumbar region without a radiculopathy although there were some radicular symptoms at one stage. No specific investigations apart from a plain x-ray have been required or are to be undertaken. Treatment has consisted purely of some physiotherapy and alteration in her life style to prevent aggravation of the condition. There is no indication that further treatment will be required at this juncture. In respect to the questions asked on page 2 of your letter I would make the following comments: 1 From the history given to me by Jill Lambert there was an incident which occurred on 21.7.96 causing injury to her lumbar spine. As has been pointed out she not unnaturally has forgotten some of the exact details surrounding the incident at that time but her history was in keeping with that documented by Mr Jones previously. 2 The problems experienced by Jill Lambert prior to 21.7.96 do not appear to have played any part in the condition which occurred as a result of the incident on 21.7.96. I would make the point however that her recall for the week prior to 21.7.96 is not good which once again is not unnatural and also once again make the point that they were not referred to by Mr Jones or her doctor in his records. Furthermore these reported conditions in the week prior to 21.7.96 occurred in the shoulder and upper spinal area and therefore are not related to the lumbar spine. 3 With regard to the occurrence of a work injury it depends on the definition of work injury. Unquestionably the incidents which she reports occurred while she was at work. The mechanism has been outlined above. If the question you are asking is whether this is a PIBA or a gradual process claim I can only point out that I do not know what was accepted by the Corporation and also point out that from her description this occurred at one point in time on a particular day, she having had no prior problems with her back, and on these grounds I would consider it to be PIBA and not a gradual process injury. 4 The determination of the exact time at which the effects of an injury finish in a person who has an underlying pre-existing asymptomatic condition cannot be determined accurately from a medical point of view in my opinion. In this lady's case it is very clear that the condition has resolved to a considerable extent as compared to the situation that she describes in the early period after the accident. The symptoms which she complains of now would be in keeping with the reported radiological condition at her lumbosacral level. However she had similar changes without symptoms prior to the incident. The essence of the question which is at issue I think is whether, had the accident not occurred, she would currently have the low grade stress related symptoms in her lumbar region. I do not think it is possible to answer that question accurately 5 from a medical point of view. It can only be pointed that in the presence of the radiological changes she did not have any symptoms before the incident and that since the incident although the symptoms have declined in severity they have at no time disappeared. This would suggest that the incident aggravated the underlying situation in her lower back and the probability is that if the incident had not occurred she would have no symptoms present now although they could well present in the future. On the other hand I would consider the probability is that if the lumbosacral spine had been radiologically normal at the time of the accident the condition would have settled sooner and more completely. This is in fact indicating that no definite answer can be given and the probability is that the current situation is in small part due to the accident which aggravated the pre-existing condition and is in larger part due to the underlying pre- existing condition itself. As is emphasised by Mr Jones no definitive lesion such as a disc protrusion occurred at the time of the accident. Therefore to a major extent the effects of the accident in 1996 have passed. I do not feel able to make any comment about the situation as it pertained at the time that the Corporation decided not to pay weekly compensation. 5 Jill Lambert does have ongoing restrictions to her activities in the form of avoidance of the stressful use of the lumbar spine. She undertakes the sensible management of the condition which she is clearly coping with adequately herself. I would consider it unwise for her to return to her pre-accident employment duties which required the lifting of heavy luggage on and off conveyors and scales 6 I do not consider that the slight thoraculumbar scoliosis has any bearing on her situation and is probably only a postural finding rather than a structural change. Lumbosacral degenerative changes have been commented on above. They are certainly found asymptomatically in the radiography of people in her age group but I would not be able to put a percentage on it without researching the literature. I would also comment that I have read Mr Jones' report which is very detailed and is in keeping with my own opinion which have been stated above. He indicates that there is no evidence to suggest that there is a disc rupture or nerve root entrapment and he also states that her symptoms were compatible with the history and mechanism of the injury. He indicates that her condition was an aggravation of the pre-existing, asymptomatic radiographic wear changes. I would also agree that she does not show any abnormal pain response and presents as an entirely genuine person. I would also agree that she is capable of returning to light work with the avoidance of heavy lifting and stress on her lumbar spine. Indeed she is attempting to do this at the present time. The only contentious matter perhaps is the question of whether she has recovered from the effects of the accident as Mr Jones states. My views have been given above and are substantially in agreement with his. Another further comment I would make is in regard to page 7 of the review which involves the decision. It is stated in the third paragraph that the mechanism of the injury is unclear because only an M45 form was completed. The mechanism of injury given by Jill Lambert both to Mr Jones and to myself was similar and consistent with her condition and it is perhaps not her fault that the M45 form did not include a description of the accident. Furthermore, I would disagree with the comment that the fact that she had had some problems in her shoulders and arms and neck implies that the pain at that time was similar but it extended further. My interpretation would be that there were two separate issues and conditions here which are unrelated. It is also pointed out that her own doctor's notes record on 22.7.96 that there was a sprained back although unfortunately the area of the spine affected was not recorded. On the other hand the fact that the doctor had an x-ray of the lumbosacral spine rather than the thoracic or cervical spine would strongly suggest that this lady's problem at that time had been identified as related to the lumbosacral spine rather than the neck and shoulder area. With regard to the quotation from the ACC Appeal Authority on page 8, I would have thought that this relates to a gradual process condition rather than one where there has been a specific incident at one point in time aggravating an underlying pre-existing condition. The only other comment that I would make is that because this person is capable of alternative work, as is indicated by the fact that she is currently seeking employment, she would almost certainly if put through a Work Capacity Evaluation be deemed as fit to return to her pre-accident occupation as described under section 51 of the Act." Ms Stringleman submitted that the review officer's decision was wrong or that she reached incorrect conclusions when she found: That the exact mechanism of the appellant's injury was unclear; ( b ) There was no one causative incident on 21 July 1996 but that the appellant's back pain developed on from previously noted neck and arm pain after some heavy lifting and stretching; and ( c ) That the appellant's injury and incapacity occurred against a background of disharmony in the employment environment which pre- dated any incident on 21 July 1995. Ms Stringleman referred to the appellant's employment work and confirmed that inspite of the back problems the appellant had continued to work although there had been intermittent periods when she had been certified as fully unfit and occasions when she was on light duties. Ms Stringleman submitted that the appellant remained unable to carry out her full job functions as 95% of the work was at the check-in counter and involved lifting of luggage. She said that the appellant's employer required her to continue at the check-in counter and as a result of this the appellant disputed the requirement and the matter was referred to the Employment Tribunal for mediation which was resolved by a settlement between the parties. One condition of the settlement was that the appellant ceased work on 31 October 1998. Ms Stringleman submitted that there is sufficient persuasive evidence to confirm an incident which resulted in the appellant sustaining personal injury. Ms Stringleman submitted that it was inappropriate for the review officer to make an adverse finding that the appellant's injury and incapacity occurred against a background of disharmony in the employment environment. She submitted that there is no reason why such a finding should be made as it was not accurate nor did it in any way relate to the issue before the review officer. Ms Stringleman submitted 7 that the accident was the cause of the appellant's inability to return to her full pre- accident duties and that it was the direct cause of the termination of her employment. Ms Stringleman referred to Mr Lester's comment that had it not been for the accident, she could have returned to her previous work. On that basis Ms Stringleman submitted that the "but for" test as applied in the Estate of David Simmons v ACC (15/95) should be applied in this case. Mr Palmer conceded that there had been an incident which brought the back problem to light. He submitted however, that the issue is not a question of cover, but whether the appellant is entitled to the payment of continuing entitlements as a result of injury sustained in the incident in July 1996. He submitted that the substantial cause for her ongoing back pain is the pre-existing degeneration in her lumbo sacral spine and not as the result of personal injury by accident. Mr Palmer submitted that Ms Stringleman's submission that the "egg shell skull" principle applies is wrong in that that principle has no application to the question of cover. In support of that submission he referred to the decision of Judge Beattie in Burke v ARCIC (198/98) in which he stated that the "egg shell skull" principle has no direct applicability as issues of quantum and foreseeability are not in question. He found that entitlement under the Act does not apply to personal injury caused wholly or substantially by gradual process, disease or infection pursuant to s.10. Mr Palmer submitted that the issue is whether the respondent was entitled to discontinue cover because there is no direct causal link between the 1996 accident and her now ongoing pain. Both parties are agreed that an incident of lifting suitcases on 21 July 1996 caused an injury to the appellant's back which prompted her to seek medical advice. After the claim had been accepted as a work injury further investigations followed from which the medical advice was that the appellant had pre-existing degenerative changes in her back which had been brought to light by the lifting incident at work. After the respondent received the report from Mr Jones it issued its decision declining further payment of entitlements because it considered the ongoing problems were substantially caused by the significant degeneration rather than the accident of July 1996. Mr Jones concluded his report by saying "Mrs Lambert has recovered from her injury and is working in full time duties". He also considered that she was capable of working in any area other than one which involved lifting of suitcases and concluded his report by saying: "I do not consider that she has any ongoing specific restrictions due to her accident on 21st July 1996, but if she continues to lift heavy suitcases she will inevitably develop further episodes of back pain." Mr Jones' comprehensive report was referred to Mr Lester who also issued a very comprehensive report. As a result of an invitation to answer specific questions put to him by Ms Stringleman, with a view to negativing the findings of the review officer, Mr Lester confirmed that he agreed with the bulk of Mr Jones' report and had similar views. One interesting comment from Mr Lester was that: 8 "On the other hand I would consider the probability is that if the lumbosacral spine had been radiologically normal at the time of the accident the condition would have settled sooner and more completely. This is in fact indicating that no definite answer can be given and the probability is that the current situation is in small part due to the accident which aggravated the pre-existing condition and is in larger part due to the underlying pre-existing condition itself. He concluded his report by stating: "The only other comment that I would make is that because this person is capable of alternative work, as is indicated by the fact that she is currently seeking employment, she would almost certainly if put through a Work Capacity Evaluation be deemed as fit to return to her pre-accident occupation as described under section 51 of the Act." I consider that the observation of both the specialists is significant when having to make the decision as to whether or not the appellant's present condition is caused by personal injury by accident or is caused wholly or substantially by the gradual process. On the basis of the medical evidence, I consider that there can be only one conclusion and that is that any existing problems suffered by the appellant are the result of the pre-existing degeneration and are not the lingering results of the accident in July 1995. The appeal is dismissed. DATED at WELLINGTON this lith day of November 1998 A W Middleton District Court Judge dca16198.doc (rd)