Riggir v Accident Rehabilitation and Compensation Insurance,Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 376 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUSTIN CLIVE PAUL RIGGIR of Upper Hutt Appellant (Appeal No. DCA 15/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and from Ms L Rice, counsel for the respondent, with the request that I issue a decision on the papers The issue before the Court is whether the appellant is entitled to cover under the Act for the physical problems he suffers allegedly arising from an event which occurred on 14 June 1989. The facts which give rise to the appeal are that on 3 July 1989 the appellant completed an advice of injury form which was lodged with the respondent on 4 July 1989. In that application his occupation is noted as Electrical Technician and that he suffered an accident on 14 June 1989 while "working on a radio telephone installation in a vehicle" and "was leaning over and felt a sharp pain in my side on the 20-6-89. Back pains very sevare (sic) so went to my doctor." The respondent accepted the claim and paid various entitlements to the appellant, including earnings related compensation. These payments ceased when no further medical certificates were received. 2 On 7 May 1996 the appellant wrote to the respondent requesting backdated weekly compensation and reimbursement of medical expenses. He also sought assessment for retraining and an independence allowance. The appellant completed the functional limitations profile questionnaire required for making the assessment for an independence allowance. As a result of that, his disability was assessed at 54% for which he received an independence allowance of $11.81 per week. Following that decision, the respondent requested details of the appellant's medical records. The records noted that an x-ray in June 1989 showed no abnormalities in the heart or lung areas with minimal degenerative changes at the C5 level. A further x-ray in July 1989 noted "mild degenerative spondylitis, of debatable clinical significance." The appellant was then referred to Mr M R Baylis, an Orthopaedic Surgeon, who examined the appellant and found that he had "a 4th, 5th and 6th cervical root lesion, presumably due to a brachial neuritis." Mr Baylis then referred the appellant to Mr R W Frith, a Neurologist, whose report of 30 November 1989 states: 'Mr Riggir told me that he had had intermittent back pain over the years but was otherwise in good health until July 1989 when he had further rapid onsets of pain across the lower back, pain in the right lateral chest and aching over the right lateral shoulder. At the same time he noticed weakness of the right shoulder. Some time after that he became aware of impaired sensation in the middle and ring fingers of the right hand. Since then there has been a gradual deterioration with ongoing pain in the neck, pain in the shoulder blades and low back pain all increased by exertion. He says his right arm feels worse if he uses it. He also describes a large variety of other symptoms. He says that he has an intermittent lump in the right side of the neck posteriorly which, if pushed, makes it feel as water is running up and down his spine. He says that he has lost weight (11/2 stone) since July although he says that he is eating twice as much as he did in the past, he has not increased his exercise level and has not had any change in his bowel function. He has had recurrent frontal headache which has occurred on and off since childhood. He admits to being very anxious about his health and says that this is affecting both himself and his relationship with his girlfriend. There is no past history of similar illness. Because of the pain he is taking up to 50 Temgesic tablets a month. He denies using any other forms of analgesia. On examination he looked tense and anxious. The general examination was normal. The cranial nerves were normal. There was mild winging of the right scapula due to weakness of serratus anterior but all other muscles in the arms and legs and around the shoulders were normal. The arm reflexes were just present with reinforcement while raising the legs were a little brisker. The plantar responses were flexor. His gait was normal. It is possible that he had an attack of brachial neuritis in July of this year to account for the pain, winging of the scapula and the other symptoms. I do not think there is any evidence now for ongoing neurological disease. 3 There is no doubt, however, that he is very anxious about his symptoms. I have re-assured him strongly that I can find no evidence of ongoing disease. I have suggested that if his weight loss persists or he has any other symptoms to suggest systemic illness, that Dr de Villiers should ask one of the general physicians at the hospital to review things with him." In a report to the appellant's General Practitioner, Mr Baylis confirmed that in his view, the appellant suffered brachial neuritis. The appellant was then referred by his General Practitioner to Mr K E D Eyre, a Neurologist, whose report of 7 February 1991 noted: "This is an unusual disorder. The abnormalities in the neurological examination are mild but quite definite. I could not be really confident as to the cause of the mild right scapular winging and elevation but clearly there is muscular imbalance affecting the right scapula possibly involving both the serratus anticus and trapezius muscles. The absence of the right biceps and supinator jerks implies a right C6 spinal segmental or radicular abnormality. Mr Riggir has had pain over quite an extensive area and paraesthesiae in the hand so that the symptoms and signs cannot be attributable to a single nerve or nerve root lesion. The disorder appears to have developed in three acute episodes in the way of acute pain down the right side of the chest about four years ago during strenuous activity involved in doing press ups, sharp pain again of same distribution about 18 months ago not related certainly to strenuous activity and acute severe pain in the region of the right biceps quite recently coming on apparently spontaneously. Analysis of the symptoms and signs does not I believe provide sufficient information for secure confident diagnosis but the indications are of organic neurological disease which may well involve the cervical spinal cord and the differential diagnosis extends to include syringomyelia and spinal haemangioma." In a further report in May 1991 to the appellant's General Practitioner, Mr Eyre noted that the appellant had then recently been at the Auckland Hospital for a cervical myelography and suggested that an MRI scan be undertaken. He considered that the appellant "showed signs I thought consistent with intra-axial cervical spinal cord disease on the right side." The appellant was admitted to the Emergency Department of the Taupo Hospital on 16 May 1991 suffering a headache and vomiting which appeared to have arisen as a result of the lumbar puncture technique involved in the myelogram two days previously. He was discharged from the hospital after two days. In a further report, on 15 August 1995, Mr S Mossman, a Neurologist at Capital Coast Health, gave as his assessment: "I have to say that there is reasonably good evidence that this man had a brachial neuritis with his characteristic winging of the scapula, the weakness of his arm in 1991, and the residual signs of decreased reflexes in this arm. Despite the concern of the Auckland Neurologists in 1991 there is no evidence over the last six years for objective progression and 4 certainly no evidence for a syrinx. I think it is likely that psychological factors are complicating the issue and I have discussed this with Justin. He is aware that there may be possible causes and admits that he may not have adapted to his disability (mild in my opinion that it is)." The respondent then arranged for the appellant to be examined by Mr G Martin, a Neurologist in Wellington, who had available to him the reports of Mr Mossman, Or Eyre, Dr Frith and Mr Baylis. His comment was: "Contemporary documents show that there is no doubt about the diagnosis of brachial neuralgia in 1989 and 1990, and no evidence of any contribution of trauma to it. An MRI would have nothing to contribute now to demonstrate the ACC's responsibility for this, so I would advise against it." Following receipt of that report the respondent notified the appellant on 5 August 1998 that his claim for cover was declined because his condition was not as a result of personal injury. The appellant raised doubts about Mr Martin's report and his examination and when this was put to Mr Martin he confirmed on 24 August 1998 that he was aware that the appellant was complaining of symptoms on his right side but he had noted "strange movements or posture of both right and left sides." The appellant applied for a review of the respondent's decision of 5 August 1998. The appellant gave evidence before the Review Officer and submitted that because the respondent had previously accepted his claim and found a 54% impairment for the purposes of an independence allowance, that demonstrated that he had suffered a personal injury. The Review Officer noted that in order to qualify for cover it was necessary for the appellant to satisfy the requirement that he had suffered an injury as a result of an accident and that the accident resulted from the application of an external physical force. The Review Officer considered that the "medical reports on file are unequivocal in their conclusions." He also noted the appellant's claim that he had been affected by the cervical myelogram. The Review Officer, however, said that he could not consider that latter issue as it was not the subject of a separate claim. It is against that decision which the appellant now appeals. In support of his appeal the appellant has again stated that he suffered an adverse reaction to the myelogram. He again submits that the fact that he was assessed for an independence allowance is evidence that he has suffered a personal injury for which he is entitled to cover. The bulk of his submissions tend to be focussed on the issue of the myelogram. Ms Rice submitted that it is open to the respondent under section 67A to revise any decision it has previously made when it appears to the respondent that that decision has been made in error either by reason by mistake or by the existence of fresh evidence. She submitted that while initially the claim had been accepted for cover, the subsequent and numerous medical reports all indicate that whatever the appellant's problem is, it is not the result of trauma and more likely brachial neuritis. 5 As the Review Officer indicated, the question of whether or not the appellant suffered an adverse reaction to the myelogram, that is not an issue before the Court. If the appellant considers that that is an issue then he must lodge a separate claim. The issue before the Court is whether the appellant suffered a personal injury by accident in the incident, which occurred in June 1989. Initially, the respondent acted on the preliminary medical advice, and accepted that the appellant had suffered a personal injury by accident. Subsequent and extensive medical evidence indicates that he in fact suffered a brachial neuritis which is not associated with trauma. All the Specialists, and there have been a number of them, have reached the same conclusion and it was therefore necessary for the respondent to exercise its powers under section 67A to revoke its previous decision and deny cover. I agree that on the basis of the medical evidence that decision was correct. The appeal is dismissed. DATED at WELLINGTON this 17 th day of December 1999 A W Middleton District Court Judge dca15-99.doc (nr)