Hansen v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 280 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JULIE DIANE HANSEN of Palmerston North Appellant (Appeal No. DCA 432/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at PALMERSTON NORTH on the 14th day of September 1999 APPEARANCES/COUNSEL A R V Rowlett - advocate for appellant A D Barnett - counsel for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the review officer confirming the respondent's primary decision cancelling her ongoing entitlements pursuant to s.73 of the Act. The appellant lodged a claim for cover with the respondent on 21 July 1994 in which she said that she "slipped on oil on floor and wrenched neck. Pins & needles (L) arm, pain, (L) shoulder/back." This was diagnosed by her general practitioner as cervical neck strain linked with possible left trapezius strain. The accident occurred at her place of employment on 21 July 1994. The appellant was employed as a 2 telephone operator. The respondent accepted that the appellant was entitled to cover for that accident. Various medical reports appear on the file. On 18 October 1994 Mr J Maccormick, an orthopaedic surgeon, in a report to the appellant's GP stated: "I am unable to attribute Mrs Hansen's symptoms to cervical nerve root compression or any form of nerve entrapment or in fact any condition that I can recognise. All the same I accept that they are genuine and have the feeling that there may be some sort of sympathetic nerve involvement here." On 22 December 1994 Dr A Farnell, a specialist at the Pain and Palliative Care Clinic, reported to the appellant's general practitioner "she describes very good symptoms of reflex sympathetic dystrophy with a burning pain in her forearm and hand but not following any nerve root distribution. But there are no signs of it." Dr D Fung, a neurologist, reported to the appellant's general practitioner on 20 April 1995: 'The description of her sensory symptoms would suggest an neuritic element such as cervical spondylosis or more central sensory pathway involvement. The wide-spread extent of the symptoms would favour the central location. However it would be difficult to tie that to her injury. There are two remote possibilities such as demyelination, or a variant of migraine. The possibility of her symptoms being functional would need to be considered." In a report dated 29 May 1996 Dr R D Wigley, a rheumatologist, diagnosed: "I think she has what some would call a chronic pain syndrome but I would call a fibromyalgia, originally spreading from a localised occupational overuse syndrome aggravated by the fall. One could regard it as functional in the sense that it is physiological and biochemical, but not in the sense that it is psychologically induced." The respondent then obtained an opinion from Dr B Treadwell, a rheumatologist which is dated 17 December 1997. His opinion was: "Julie Hansen suffers from a diffuse pain syndrome of obscure aetilogy. It is quite possible that some of her symptoms are due to fibromyalgia which is a disorder of soft tissues related to poor sleep. However, in my opinion her condition is predominantly psychogenic. In saying this it is important that both Julie and the A.C.C. understand that her pain and disability is in my view genuine. The origin of the symptoms however is psychogenic and not organic. In my view the original incident on 21 July 1994 is not directly connected with her current symptoms. It could be that she suffered at that time a whiplash or soft tissue shoulder girdle injury which resulted in secondary fibromyalgia. I 3 have no definite proof of this. So far as I could elicit, occupational overuse is not a factor in her current condition. I have talked to her at some length regarding my opinion. I informed her that she must take control of her own condition with help from therapists. The fibromyalgia should be treated with one of the tricyclic medications to ensure a normal sleep pattern. Sleeping in her soft collar at night should also be beneficial. I consider that she will be fit to return to work as a Telecom operator when she feels in control of her symptoms. She may need psychological help to achieve this." On 5 May 1998 the respondent advised the appellant that on the basis of the medical evidence it did not consider that her problems were as the result of permanent injury by accident and her entitlement to cover under the Act was cancelled. The appellant applied for a review of that decision. At the review hearing Mr Rowlett produced a letter dated 21 July 1998 from Dr Wigley in response to Dr Treadwell's opinion of 11 December 1997. In that letter Dr Wigley states: "He states that 'occupational overuse is not a factor in her current condition' though my report indicates that her symptoms started when she resumed employment with Telecom, on the director service which is known to carry a high risk of overuse symptoms. In her case the accident was the predominant cause of her subsequent symptoms which extended to enable classification as fibromyalgia with severe symptoms including hyperalgesia and allodynia. These symptoms are usually considered due to changes in the nerve cells, markedly increasing their sensitivity. This I consider to be satisfactory explanation of her reactions. Dr Treadwell appears to have interpreted her hypersensitivity to be 'psychogenic'. If that explanation is to be sustained evidence, of a psychological cause should be presented. I found no such evidence and there is no evidence from specialists qualified in making such an assessment. Psychological effects undoubtedly can result from any chronic pain problem, whether from accident or gradual process. I conclude that the predominant cause was the accident, aggravating preceding occupationally induced symptoms to the point where a chronic pain syndrome (fibromyalgia) persists." The review officer concluded that on the basis of the medical evidence there was no causal connection between the accident of 21 July 1994 and her ongoing symptoms. It is against that decision which the appellant now appeals. After the appeal had been lodged the respondent obtained a further report from Dr Treadwell in which he was asked to explain his use of the term "psychogenic" in his earlier report. His opinion was: 4 "I used the term 'psychogenic' to indicate that I considered her symptoms to be of psychological origin rather than organic. As you will have seen I was careful to point out that this did not imply an absence of pain. I wish to point out here that I could not exclude the possibility that some of her symptoms were due to fibromyalgia. Fibromyalgia is an accepted clinical syndrome, considered by most authorities to have an organic basis. It presents a fairly well defined spectrum of symptomatic and objective findings. Some of the objective findings in this case would be compatible with fibromyalgia but in my opinion she did not present sufficient evidence to make a firm diagnosis of this condition. Furthermore it would not be possible in my view to explain all her findings on the basis of fibromyalgia. It would be entirely reasonable for Julie Hansen to be assessed by either a psychologist or a psychiatrist. Overall I consider that a psychiatrist would be the more appropriate. A psychiatrist could always refer her to a psychologist for psychometric testing if he or she considered that that was indicated. Julie Hansen gave me no history which pre-dated the injury of 21 July 1994. / am therefore not in a position to comment on Dr Wigley's statement that she experienced pain prior to that date. As I have indicated previously I do not consider that Julie Hansen's symptoms at the time I examined her on 12.12.1997 resulted from the incident of 21 July 1994. Furthermore the account that she gave to me did not suggest that her symptoms preceded 21 July 1994." The appellant also submitted a brief note of explanation from Dr Wigley of 7 September 1999 which states: "Hyperalgesia means oversensitivity to a painful stimulus. Allodynia means that the painful stimulus ie a pin prick produces a very unpleasant curious feeling. These occur in the more severe cases of pain syndrome of any kind. This is not a separate problem. It occurs in pain resulting from occupationally induced syndromes (RSI, OOS, chronic occupational or whatever term is preferred)." In his submissions Mr Rowlett referred to the fact that in his report of 29 May 1995 Dr Wigley had noted that during her time at work with Telecom from 1990 the appellant had suffered pain around the shoulder and neck almost from the first day and this was gradually accentuated after the fall. He submitted that this was an indication that the appellant had suffered further damage in the fall. He submitted further that while Dr Fung had suggested that there was a "functional" issue, it was not open to him to deal with psychiatric matters. He also suggested that the same situation applied to Dr Treadwell's opinion. He submitted that the appellant's general practitioner had declined to refer the appellant to a psychiatrist or a psychologist because he did not consider that that was necessary for the appellant's ongoing management. He submitted that both Dr Treadwell and Dr Wigley agreed that fibromyalgia was the probable cause of the neck and shoulder pain which could have 5 resulted from the accident of 21 July 1994. He submitted that there is sufficient evidence to support a diagnosis of fibromyalgia resulting from the neck injury. Mr Barnett submitted that all the medical evidence shows that the fall was a very minor accident which resulted in a diagnosis of a strained neck and shoulder. In contrast, Dr Fung doubted whether there was a relationship between the fall and the ongoing problems and he then raised the question of whether there was a "functional element". Mr Barnett submitted that it was interesting that while the earlier reports did not mention any pre accident symptoms, Dr Wigley noted that the appellant had had shoulder and neck problems from the time she started work in 1990 which appeared to be in the nature of an occupational overuse syndrome triggered by the fall. Mr Barnett submitted that I should have regard to Dr Treadwell's opinion that he did not consider that the accident of 21 July 1994 was connected with her current symptoms Mr Barnett submitted that it was noteworthy that in his response to Dr Treadwell's report Dr Wigley considered that while the nature of the work at Telecom carried a high risk of overuse symptoms, the accident was the predominant cause of her symptoms. Mr Barnett submitted that while Dr Wigley stated that " the accident was the predominant cause of her subsequent symptoms" he went on to qualify that by stating that he considered that it constituted a "satisfactory explanation of her reactions". This is an issue which must be decided on the medical evidence. From the report of Dr Wigley it is clear that the appellant was suffering neck and shoulder problems from as far back as 1990 shortly after she started work at Telecom. These problems she considered to be part of the normal hazard of her occupation and continued to work in spite of it. She found a substantial increase in the pain after the accident. From the time of the accident all the medical reports indicate that there is no physical evidence of an injury but there is a chronic pain syndrome which is difficult to diagnose. The specialists seem to indicate a functional overlay rather than a problem induced by trauma. Dr Wigley goes further and suggests that the problem is associated with overuse syndrome which of course is not an issue before the Court as the appellant was granted cover in respect of only the cervical neck strain which followed the accident when she slipped on the floor in July 1994. The predominant theme of the specialists' reports is that the appellant suffered pain in various parts of the body from which she now has a chronic pain syndrome. The evidence is vague as to the cause of that syndrome. Dr Wigley suggested that the accident brought to light a pre-existing occupationally induced syndrome but that is not the issue. Dr Fung and Dr Treadwell discount the fall as the cause of the problems and Dr Wigley suggests that it is a "satisfactory explanation". I consider that if the appellant is to satisfy the onus on her the evidence must establish more than a "satisfactory explanation". In order to maintain cover under the Act it is necessary for the appellant to satisfy the Court that there is a causal connection between the fall in July 1994 and her ongoing 6 problems. I am satisfied on the medical evidence that the appellant has not satisfied that onus and the appeal is dismissed. DATED at WELLINGTON this 8 th day of october 1999 A W Middleton District Court Judge Dca43298.doc(rd)