Finnemore v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NAPIER Decision No. 262 198 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 JOHN DANNIEL FINNEMORE DCA 312/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of October 1998 APPEARANCES: Mr H R Grayson counsel for appellant Ms J Cheyne counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision of 19 February 1998 to decline further entitlements to the appellant pursuant to section 73(1), in respect of a back injury suffered by him on 22 July 1997, was correct. 2 BACKGROUND The appellant was at the material time aged 45 years, and the Butchery Manager of Woolworths Big Fresh Super Market Store. On 22 July 1997 he was helping clean out a display window, working in a cramped location and whilst so cleaning he twisted his back. This twisting movement caused pain and required him to stop working. He rested for a while and then resumed work. On 23 July 1997 he saw his GP Dr Erasmus, who referred him for an x-ray and physiotherapy. A claim form was completed on that day, that form stated that it was a stretching/straining of lower back. The GP completed the medical section "lumbar strain". Cover was accepted but the appellant only had four days off work. However, on 12 August 1997 Dr Erasmus referred the appellant to Mr Fred Phillips, Orthopaedic Surgeon, for assessment and advice. The letter of referral stated that the appellant was seen on 23 July 1997 with acute upper back pain after his back locked up while bending in an awkward position at work. He further advised that x-rays showed thoracolumbar scoliosis with minor degenerative changes in the lumbar spine. It further advised that he had been treated with rest and physiotherapy. It is noted that Dr Erasmus advised that the appellant had had similar episodes in the past. The appellant continued to work as normal but in November 1997 he was obliged to stop work because of persistent back pain that he was by then experiencing. On 18 November 1997 Mr Phillips reported to Dr Erasmus and stated inter alia: "There is what appears to be a balanced curvature to the right in the thoracic spine and to the left in the lumbar spine. X-rays confirm this. These x-rays were taken when he was quite severely bent over. There is a long curve with no evidence of structural abnormality i.e. there is no rotation at the vertebrae. Straight leg raising on the left is restricted with positive tension signs. There is slightly altered sensation in L5/SI. There is no sensory disturbance, reflexes are difficult to elicit. X-rays confirm the curvatures as shown. The L5/SI disc space is significant narrowed. I suspect a foraminal shutdown or possibly disc protrusion at this level. There may also be problems at the L4/5 disc after this length of time. An MRI scan will evaluate the situation here." Mr Phillips made application for approval for an MRI Scan. That application stated that the appellant "has unstable symptoms with nerve root tension signs, may require stabilisation with restoration of inter vertebral body disc height." It was further stated that the scan was needed to clearly identify where the appellant was getting nerve root impingement. The MRI scan was carried out on 18 December 1997 and the report dated 19 December 1997 stated: "Moderately severe degenerative disc change L5/SIwhere there is a tiny central disc protrusion which does not compromise the SI nerve roots or the dural sac. Mild degenerative disc change L3/4 with small left postero-lateral disc protrusion deforming dural sac. Mild degenerative disc changes L4/5 and T1 1/12." On 21 January 1998 the Corporation received a request for surgery. That request was assessed in the light of the MRI Scan. That assessment determined that the appellant 4 had long standing degenerative changes which were not the result of personal injury by accident. By letter dated 19 February 1998 the Corporation advised the appellant that the medical information which it had indicated that the ongoing reason for his incapacity was due to degenerative changes rather than personal injury by accident and therefore it advised that entitlements under the Act were thereby cancelled. The appellant sought a review of this decision but at the same time his back began to improve and surgery was delayed. The appellant resumed work for 3 hours a day on 13 March 1998 slowly building up to being able to work full time by June 1998. Subsequent to the Corporation's decision to cancel entitlements and the filing of the application for review, the appellant obtained further opinion from Mr Phillips and this was forwarded to the Corporation for its consideration. For the purposes of his opinion Mr Phillips was provided with a copy of the Corporation's decision letter and the notes made by the Corporation's Medical Advisor, Dr Summers, on whose advice it was that the decision to cancel entitlement was made. The appellant's counsel's letter of request to Mr Phillips sought his opinion as to whether or not he considered the Corporation was correct in its assessment of Mr Finnemore's disabilities and in particular whether the cause of his existing disability could be directly linked to the injuries he suffered in his accident. Mr Phillips reported on 26 March 1998 and his report in its entirety states as follows: "I enclose a copy of my notes. You will note from my history that Mr Finnemore has complained of symptoms for at least five years. These symptoms usually settle after about two weeks and he has remained active. He more recently described an acute injury with low back pain and radiation of pain into the left buttock and thigh. Symptoms have increased to the extent that he was unable to work, since being off work to a certain extent symptoms have improved. The Corporation states that the reasons for its decision to determinate cover is that it is not longer satisfied that the changes to Mr Finnemore's lumbar spine are the direct results of injuries sustained in his accident of 22nd July, 1997. On the face of it, this is quite correct. Dr Summers will have read the MRI scan report which describes disc degenerative changes. These will have been interpreted by Dr Summers as therefore a degenerative process and not related to injury. I would agree that the changes that are present would have taken longer than July 97 to December 97 to appear. The issue however is that it was the injury that caused the symptoms which has left him in an unstable situation i.e. I would assume that a number of episodes over a number of years had led to damage to the discs but on the whole the situation was stable and he was able to continue running and other outdoor activities. The injury may well have led to an unstable situation which has led to his symptoms. It is totally wrong in clinical practice to make a diagnosis purely on images from the scan. I suspect that Dr Summers has not even seen the scan but has simply picked on the word "degenerative change" which is a descriptive term and the word disc damage could equally be used. It is not uncommon for people to have quite major changes on imaging with very little in the way of symptoms. It is also not uncommon to have major symptoms with very little in the way of changes i.e. one cannot label the whole clinical picture purely on the basis of an image. At the time Mr Finnemore made his claim, he was making a claim from symptoms from the injury not symptoms from the chronic changes which have undoubtedly been present for quite some time i.e. at least five years. In response to your paragraph five, the Corporation is incorrect in its assessment that these disabilities cannot be directly linked to the injury suffered in this accident. " Mr Phillips' report was considered by the Review Officer at the review hearing and in her decision of 7 July 1998 the Review Officer found that the medical evidence 6 indicated the appellant had a pre-existing degenerative problem and that this was responsible for any ongoing incapacity or discomfort and confirmed the Corporation's stance that any ongoing problems were not attributable to the accident of 22 July 1997. SUBMISSIONS Mr Grayson, counsel for the appellant, submitted it was not sufficient for the Corporation to show a pre-existing degenerative problem, it needed to go further and establish that that pre-existing degenerative problem was wholly or substantially the cause of the appellant's inability to resume his employment. Counsel submitted that the medical evidence, being that of Mr Phillips, established that the Corporation was incorrect in its assessment that the appellant was no longer suffering from the accident injury. Counsel submitted that the evidence from the MRI Scan must be treated with caution and that it does not necessarily give the complete picture. Ms Cheyne, counsel for the respondent, submitted that there was evidence that it was the appellant's degenerative condition which was now the causative reason for his ongoing problems. She points to the fact that the appellant was able to resume employment some four days after the initial injury. She further submits that the reason given by Mr Phillips for the MRI and the results of that, establishing that there was no evidence of disc impinging on nerve roots, was evidence that there was no accident injury still present. Counsel further referred to previous decisions in this Court in Thompson (181/97), Mccluskey (36/96) and Burke (198/98). DECISION 7 It is axiomatic that continued entitlements under the Act are dependent upon it being determined that the particular entitlement sought is attributable to the personal injury by accident suffered by the claimant. In this case, the Corporation's view was that the appellant sustained a twisting type injury to his back, there was no question that he required medical treatment for it and that it resulted in him having a short period off work. It was aware of pre-existing degenerative changes but took the view that they were not the cause of the pain and disability that he suffered from the moment of the twisting. However, some months later when problems seemed to have arisen after a period of three months or so when the appellant was apparently fully fit, it has looked at the situation afresh and has determined that it is now the degenerative condition which is the ongoing cause of problems rather than continuing residual affects of the accident. The medical evidence is that the appellant suffered a lumbar strain as a result of a twisting motion. It is to be noted that this type of injury is different from one which would be sustained from a fall. His GP described it as lumbar strain and when he was seen by Mr Phillips he suspected a foraminal shutdown or possibly disc protrusion at the L5/S1 level. It was this provisional diagnosis that Mr Phillips made for the low back pain which the appellant had developed in November and which was said to have arisen following the twisting incident in July 1997. This diagnosis is amplified in the request for approval for MRI scan where it was sought to have that scan clearly identify where he is getting nerve root impingement. The results of that MRI scan established that there was no foraminal shutdown or nerve root impingement. What it did disclose was moderately severe degenerative disc change at the precise place where Mr Phillips had provisionally believed there was nerve root impingement, that is L5/S1. The appellant's history had been that he had back problems from time to time but these had cleared up in a matter of days. The x-rays that were taken in August and then the MRI Scan in November established that he did suffer from degenerative 8 changes to his spine. He suffered a twisting injury which caused pain to his lower back and it has been established that that pain, which was present at the time of the injury, passed in a matter of days but returned some three months or so later and became increasingly more severe. It is at this time that the investigation of its cause discloses that it is not musculoskeletal or nerve based, as might be expected if it was connected with the twisting injury. I find that the advice of Mr Phillips of 26 March 1988 is consistent with the finding that the twisting injury, which itself caused discomfort for a time, dissipated but probably left an unstable situation, as is stated by Mr Phillips, and that this unstable situation has led to the previously asymptomatic degenerative changes in the area of L5/S1 now becoming symptomatic. Mr Phillips' opinion is that at the time the appellant made his claim it was for symptoms from injury not for the chronic degenerative changes which were then present. However, Mr Phillips does not say that his present disability, or more particularly the disability that was observed in March 1998 at the time entitlement was cancelled, was attributable to injury from the accident. From a medico legal perspective this Court has stated on several occasions that where the trauma or impact of injury has aroused a previously asymptomatic condition, once the effects of the trauma itself have passed and that all that is left is a now symptomatic pre-existing condition, then the right to continuing entitlements for the accident or trauma are lost. It was suggested by counsel for the appellant that the Court should look at the chronology and take as the starting point for the effects of the accident as being November 1997 rather than July 1997 as the appellant continued in work until November. I find that this cannot be the case as there is no evidence that the appellant was indeed suffering any greater back pain prior to November than he had suffered from time to time over the previous years. An analysis of the medical evidence would indicate that the Corporation accepted the causative link between accident injury and subsequent incapacity without benefit of 9 medical opinion to support it and it was when medical opinion was obtained that it was shown that the causative link was not there. I find that there was sufficient evidence for the Corporation to make its decision to cancel further entitlement as it had evidence that the suspected causes of the pain, which could be said to be attributable to the type of injury the appellant had suffered, were not in fact present. The only cause of pain could be the moderately severe degenerative changes to the L5/S1 which were now signalling their presence. As was observed by His Honour Judge Middleton in the decision of Bell, and which has been followed by other decisions in this Court, the fact that a personal injury by accident causes previously asymptomatic pre-existing conditions to become symptomatic does not entitle a claimant to ongoing entitlements under the Act when the effects of the injury have dissipated and all that is left is a continuing, now symptomatic, pre-existing degenerative condition. When that stage is reached entitlement must cease. This I find is the stage that had been reached in the case of this appellant by February 1998 and accordingly, the decision of the Corporation, confirmed as it was by the Review Officer, to cancel entitlements was correct. This appeal is therefore dismissed. DATED at WELLINGTON this qth day of December 1998 M J Beattie District Court Judge Finnemore.doc(gm)