Cheesman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 6 199 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 KENNETH HERBERT CHEESMAN DCA 251/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of December 1998 APPEARANCES: Mr K H Cheesman in person Miss K Tahana, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation was correct to cease payment of weekly compensation to the appellant on the grounds that the appellant's ongoing physical problems were not related to personal injury for which he had cover. 2 Background On 7 December 1988 the appellant lodged a claim for cover in respect of an accident said to have occurred on 30 November 1988. The injury was said to be a lower back strain, said to have been caused when he bent down to pick up a sock off the floor. Medical certificates issued at the time and subsequently indicated that he was unfit to resume his former employment being that of a motor mechanic. Various medical certificates were issued by the appellant's GP Dr Buswell indicating his unfitness for work. In September 1989 the Corporation sought an orthopaedic report from Mr Hooker, Orthopaedic Surgeon, and in that report Mr Hooker observed that for many years the appellant had experienced episodes of low back pain, including some episodes which had caused him to stop work and go onto a social security benefit. The opinion of Mr Hooker at that time was: 'Mr Cheesman's present condition is of a man who in my opinion is muscularly unfit in terms of his back, abdominal and general bodily musculature, experiencing variable low back pain which is probably mainly on the basis of early degenerative change. The prognosis is difficult to comment on but in my opinion if Mr Cheesman was able to follow a progressive exercise and activity programme he should be able to return to work as a motor mechanic... I believe that if Mr Cheesman was to be encouraged in the line of management discussed above his recovery would be expected to be complete." In March 1991 the appellant was again examined, this time by Mr R V Jackson, Orthopaedic Surgeon. At the date of this examination the appellant was still complaining of back pain which tended to increase in severity with any physical work. Again in this report Mr Jackson notes that the appellant admitted that for several years prior to his accident of 30 November 1988 he had experienced episodes of low back pain. X-rays which were available showed no abnormality in the hips or pelvis. The sacroiliac joints appeared normal and there was minimal disc degenerative changes in the lower lumbar region, probably of no significance. It was Mr Jackson's opinion that there was no treatment that could be offered other than for the appellant to get involved in an exercise programme as had been suggested by Mr Hooker. The only treatment prescribed was medication for the pain. It seems that the appellant continued in receipt of weekly compensation based on the appropriate certificates from his GP that he was unfit for work, the injury simply being described as lower back strain. In 1996 he was assessed by Te Kuiti Rehabilitation Assessment Services. It is noted that for the first time in this report there is mention of two trauma injuries to his back said to have been suffered by the appellant earlier on in 1988, the first being a jolting and a falling backwards while removing a gearbox and then a second incident when he fell off a weed spraying vehicle. Neither of these two incidents resulted in any claims being lodged with the respondent. In August 1997 the appellant was again examined by another Orthopaedic Surgeon, Mr DE Allen. In his report Mr Allen narrates a history which is different from that which had previously been related to specialists who had examined him and this fact is noted by Mr Allen in his report. In his examination he noted: "There is an excellent range of lumbar spine movement, with finger tips to four levels. There are no peripheral localising neurological signs and no signs of root tension. Peripheral joint function is satisfactory and peripheral circulation is satisfactory." He further noted that x-rays of the spine taken in December 1994 show no abnormality. Mr Allen concluded: " Mr Cheesman presents with two distinct problems:- A. Low back symptoms. Following review today I cannot explain, in orthopaedic or neurological terms, why Mr Cheesman has the low back problems that he is experiencing. In my opinion, an MRI scan is indicated. This may indicate an avenue for more active treatment, and also would be of considerable help in enabling a more accurate assessment of prognosis. B. Severe headaches and nightmares. I note a brain scan was carried out in 1991 and presume that this was at the request of a neurologist, but I have no access to any neurological reports. In view of persisting and disabling symptoms, I would advise further neurological opinion. Once again, this may allow more active treatment, and also a more accurate assessment of prognosis." Mr Allen recommended the obtaining of an MRI scan and neurological opinion and such a scan was duly carried out. In December 1997 following the result of that scan Mr Allen was asked for further opinion and he advised in a report dated 8 December 1997: "Change of active treatment - After reviewing the MRI I have discussed the situation with Mr Cheesman. At this stage I believe it is reasonable to state there is no evidence of an intro- spinal lesion. In my opinion Mr Cheesman's problem is one of pain, and not of any particular physical nor specifically, orthopaedic, disability. In my opinion active treatment programmes would have nothing to offer Mr Cheesman. In my opinion any further management would be in the realm of pain control. In my opinion it would be in Mr Cheesman's interests if he could gradually resume normal activities, and in my opinion an important part of management would be to encourage Mr Cheesman in this respect. Functional ability and prognosis is view of the MRI findings - In my opinion Mr Cheesman's problem is one of pain and not of any particular orthopaedic disability. In my opinion it is in Mr Cheesman's interests to regain normal activities. I see nothing to suggest any long term problems occurring, apart from the question of pain control." Following receipt of that report from Mr Allen the matter was considered by the respondent's branch medical advisor and thereafter by letter dated 21 January 1998 the appellant was advised that the Corporation had in its possession a medical report from Mr Allen which established that the appellant was no longer incapacitated by reason of his personal injury and that therefore pursuant to section 73(1) of the Act payments of weekly compensation would cease. The appellant sought a review of that decision. At that hearing the appellant gave details of the back injury sustained earlier on in 1988 and of the fact that he felt that either or both of those injuries were the source of his back pain. No further medical evidence was adduced for the purposes of that review hearing. 5 The Review Officer ruled that in the light of the medical reports, including those of Mr Hooker and Mr Jackson and also of Ms Fairhurst and Mr Allen, no expert had been able to identify any physical injury which was the cause of the back pain. The Review Officer therefore found there was no causal link from the injury for which he had cover with his present symptoms and thereby confirmed the Corporation's decision to cancel entitlements. For the purposes of appeal to this Court the appellant submitted a report from his GP, Dr Buswell. That report dated 29 June 1998 states as follows: " Mr Cheesman initially injured his back in July 1988 and exacerbated the problem with further accident in November 1988. Since that time he has had ongoing back pain, but investigations have failed to reveal significant anatomical abnormality. At times the pain is very severe and at no time in the intervening years has he been entirely free of it. As a result of the pain he is not able to work, as each time he has attempted to do so, his back has been aggravated by the activity. The unlimiting nature of this pain also contributes to poor sleep and makes his other physical problems more difficult to cope with. In an effort to relieve the back pain, Mr Cheesman was given an epidural injection of steroid at Te Kuiti Hospital in February 1990. Two days after this injection he developed head pains which were initially quite severe and which he claims have never completely left him. He says that he had never experienced similar pains prior to the epidural injection and believes that the problemhas been caused by the intervention. Headache is a known complication of epidural steriod injections, although in this case there were no particular factors that would make this likely, and this is well documented in his notes. Needless to say combined with the back pain, Mr Cheesman suffers a considerable degree of discomfort as a result of these two problems. He believes that both can be directly attributed to his duo of accidents in 1988." In his submission to this Court the appellant said that he was an A Grade automotive engineer and that his work involved a lot of heavy work and that the pain which he is experiencing still prevents him from being able to return to that employment. He again referred to the two earlier accidents where he hurt his back and said that before these accidents he had never had any time off work because of back problems. 6 Counsel for the respondent submitted that no claims had ever been lodged in respect of any earlier accident involving back injury and it was the bending incident only which caused back strain with which the Corporation was concerned and in respect of which it had granted cover and entitlements. Counsel submitted that the medical evidence was clear that there was no evidence of any physical injury causing the appellant's supposed disability, rather it was simply pain and he submitted that pain itself is not physical injury. He further submitted that that pain could not be identified as being sourced from the back strain of November 1988 and therefore there was no causative link between his present condition and the injury for which he had cover. Decision It is to be noted that the earlier orthopaedic reports of Mr Hooker and Mr Jackson make no mention in the narration of the appellant's history of any earlier accidents which could have precipitated the back pain he was experiencing at the time that he was examined by them. The only information they had was of a back strain caused by a bending movement to lift a sock from the floor. It must be remembered that the orthopaedic reports that Mr Hooker and Mr Jackson provided were more general and they were not necessarily looking for any causative links, the claim at that time of course being under the 1982 Act when quite possibly different considerations applied for ongoing entitlements. Nevertheless those reports do indicate that even as far back as 1990 there were no signs of physical injury attributable to an accident. The reports of Dr Fairhurst and Mr Allen confirm that the appellant has a full and pain-free range of motion with his back and as Mr Allen noted he could not explain in orthopaedic or neurological terms why the appellant has low back problems he says he is experiencing. The MRI scan did not throw up any cause or reason and it is noted that Mr Allen considered that the appellant's problem is one simply of pain and not of any particular orthopaedic disability. 7 Counsel for the respondent submitted that pain itself is not a physical injury. That submission may be too simplistic but in the present case I find that it is appropriate. However I do say that where pain can be shown to be the residual effects of the physical injury for which cover was obtained and if this is still a disabling factor then in such a case I would hold that entitlement would still continue. In the present case the pain which the appellant is experiencing cannot be shown to be attributable to the physical injury for which cover was granted. There is no orthopaedic opinion which says that it is the residue of that injury and therefore I find that the medical opinion is that there is no causal nexus between the stooping accident of November 1988 and the general pain, without any identifiable seat which the appellant says he is experiencing today. As was submitted by counsel for the respondent the onus is on the appellant to establish on the balance of probabilities that his ongoing physical and disabling features are as a consequence of the personal injury by accident. On the evidence which has been presented to this Court I find that that onus of proof has not been discharged, in fact the evidence could not be said even to be equivocal but rather wholly against the proposition which the appellant is required to establish to enable continuing entitlement. For the foregoing reasons I find that the decision of the respondent to cease entitlements to the appellant was correct and this appeal is therefore dismissed. DATED at WELLINGTON this 22 day of January 1999 M J Beattie DISTRICT COURT JUDGE Cheesman.doc