Harneiss v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT INVERCARGILL Decision No. [2010] NZACC 216 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN KEVIN HARNEISS (Al 285/07) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at INVERCARGILL on 21 September 2010 APPEARANCES Mr A Cadenhead, Counsel for Appellant. Mr H Evans, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the correctness of the decision of Care Advantage of 8 December 2006, whereby it suspended entitlements to the appellant on the grounds that the appellant's then ongoing medical condition was not causatively linked to the back strain injury for which he had been granted cover in July 2002. [2] In this case the primary decision which is the subject of this appeal, is the decision of Care Advantage as Claims Manager for New Zealand Post, an Accredited Employer under the Act, and by whom the appellant was employed at the time he suffered his personal injury. [3] The background facts relevant to the issue in this appeal may be stated as follows: 2 . As of May 2002 the appellant was employed as a postal worker by NZ Post and had been so employed for some twelve years. He was aged 53 at the time. The appellant's duties included some heavy lifting, and on 22 May 2002 whilst lifting a heavy package he felt sudden pain in his lower back. The appellant consulted his GP, Dr M Smith, on 24 June 2002, when the pain in his lower back and numbness in his left leg had not resolved. . A claim for cover was lodged through Dr Smith with the diagnosis being 'left sciatica'. The appellant continued in his employment at this time. . On 2 July 2002, Care Advantage advised that cover for the appellant's work related injury had been granted. . The appellant's back condition did not improve and he was medically retired from NZ Post on 13 December 2002 and from which time he commenced to receive weekly compensation. . Dr Smith had referred the appellant to Mr J Bonkowski, Neurosurgeon, in July 2002 and it was Mr Bonkowski's advice that he cease carrying out further heavy lifting and that he should go on light duties. . At the time that Mr Bonkowski saw the appellant an MRI scan of the appellant's lumbar spine was obtained, and this identified long-standing slippage at L5/S1 and with spinal stenosis at L4/5. . Although Mr Bonkowski had indicated that surgery might be an option, this was never carried through, and the appellant continued to receive conservative treatment. . The appellant continued to experience low back pain and pain on the left side. . In July 2006, Care Advantage requested Dr John Alchin, Specialist Occupational Physician, to carry out comprehensive assessment of the appellant's condition. Dr Alchin saw and examined the appellant on 2 August 2006 and provided a report dated 1 September 2006. It was his advice that the appellant was suffering from chronic non-specific regional musculoskeletal pain syndrome affecting his low back with 3 referred somatic symptoms (mainly sensory but occasional pain) in both legs, left worse than right. . On 31 October 2006, the appellant underwent a comprehensive pain assessment with one of the assessors being Dr John MacVicar, Musculoskeletal Pain Specialist. A wide-ranging report was provided by Dr MacVicar and his colleagues and their report agreed with Dr Alchin's diagnosis and which diagnosis could alternatively be described as 'lumbar spinal pain of uncertain origin'. . In its decision of 8 December 2006 to suspend entitlements Care Advantage gave as its reasoning the reports of Mr Bonkowski of September 2002 and of Dr Alchin's of 2 August 2006, and it advised that those two reports, having been reviewed - "show that there is no evidence of a physical injury. In their opinion, your ongoing problems are related to non-specific musculoskeletal pain. For cover of your claim to continue, there must be evidence of a personal injury caused by accident, as required in Section 26(1)(b) of the Injury Prevention, Rehabilitation, and Compensation Act 2001. With evidence of degenerative conditions only, we must now suspend all future entitlements on your claim." . The appellant sought a review of that decision and a review hearing took place on 7 June 2007 at which the appellant was represented by counsel, and for the purposes of that review counsel for the appellant introduced a medical report from Dr B Tait, Consultant Physician, and the respondent introduced medical comment from its Branch Medical Advisor, Dr Harding. . In a decision dated 4 July 2007, the Reviewer, Mr S M Winter, found that the appellant's sciatica injury had resolved and that from the totality of the medical evidence it could not be said that the appellant's current symptoms of incapacity were causally linked to his covered injury. He found that the appellant's condition was that of mechanical back pain due to the slippages in disc bars in his back, as had been identified by Mr Bonkowski. He therefore confirmed the decision to suspend entitlements. . For the purposes of the appeal to this Court further medical reports have been introduced by Dr Tait and Dr MacVicar on behalf of the appellant, and from Mr B Otto, Orthopaedic Surgeon, on behalf of the respondent. [4] This is an appeal where the correctness of the decision in question is almost wholly to be determined by the medical evidence which has been submitted, and that medical evidence I find to be as follows: 1. Report from Mr J Bonkowsi, Neurosurgeon, dated 3 July 2002, to Dr Smith. This was Mr Bonkowski's first report to the appellant's GP, following Dr Smith's referral of the appellant to him. It records the history of the injury and the appellant's present situation was noted as follows: "... Since the onset of the symptoms he has had a sensation like a pulled muscle in his back, has been trying to rub liniment on it but this has very little effect, and increasing numbness in the left leg. He says that the pain is mainly in his left calf, the left leg feels partially numb and although the symptoms are not constant they are not improving. Despite this he is continuing to work, although he is finding it more of a struggle and he is having to take the lighter bags and do lighter chores. ... Mr Bonkowski recommended that an MRI scan be obtained "to see if there is evidence of significant spinal canal stenosis or nerve root entrapment occurring." 2. Report from Mr Bonkowski dated 19 August 2002 to appellant's GP. This was Dr Bonkowski's report after receiving the results of the MRI scan of the appellant's lumbar spine, which had been carried out on 1 August 2002. His report on the scan noted: Essentially the spine looks distinctly unhealthy: there is obviously a longstanding slippage at L5/S1 and this has created a significant disc bar across that segment with what has been described as a central disc extrusion, although I think that this is more in the nature of a bar created by the slippage forward of L5 on S1. At L4/5 there is a further significant disc bar with a moderate degree of spinal stenosis across that segment. He then noted: His main symptoms are of lumbar back pain, there is some radiation into the left gluteal area, but the numbness in the left foot is less pronounced than previously and the entire process appears to be more one of mechanical back pain secondary to the slippages and disc bars at L4/5 and 15/S1, rather than a true nerve root entrapment or spinal stenosis syndrome. He referred to the possibility of surgery as treatment as follows: The only way to surgically salvage this situation would be to remove all of the L4/5 and L5/S1 discs, lock these two segments across with interbody cages and to put in a set of reinforcing pedicle screws to try and bolt L4, L5 and S1 together. As you will appreciate 5 this is a fairly massive surgical procedure, might carry some risk to him, in as much as he does have a slightly precarious myocardial status and I continue to worry about the fact that he appears to be very slightly short of breath even at rest, so he would be a considerable anaesthetic risk, both from h is respiratory and cardiac point of views. The other problem with the surgery is that even if it was successful and stabilised his spine (and the success rate of this sort of major stabilising surgery is rarely better than 50%) I do not think that he would be sufficiently recovered to ever get back to the kind of heavy physical work he is doing now. In fact I would advise him after the surgery to no longer lift or carry any weights and to try and either look for or be retrained into much lighter work. 3. Letter from Mr Bonkowski to Care Advantage dated 16 September 2002. Care Advantage wrote to Mr Bonkowski asking the following question: 'Given that you have reported that there is obviously a long standing slippage at L5/S1, would it be reasonable to suggest that the incident occurred on 22/5/02 merely aggravated an existing condition, or was it the cause of Kevin's current and ongoing problems?" Mr Bonkowski responded as follows: In answer to your question I think the answer is yes, the state of Mr Harneiss' spine radiologically is such that he has some fairly longstanding changes and the lifting incident that he describes this year was almost certainly in the nature of an aggravating factor which triggered symptoms from a previously relatively quiescent, albeit unhealthy back. However it is a semantic point whether the lifting incident or accident was or was not the cause of Kevin's current problems. In a sense his current problems are his pain and the pain was caused by the lifting accident. He does have a degenerative condition of his spine but that is not of itself a problem until or unless triggered into activity by some form of physical stressing. 4. Medical Assessment Report from Dr A Marshall dated 22 October 2004. This was an Initial Medical Assessment sought by Care Advantage. Dr Marshall carried out an examination and he had Mr Bonkowski's reports for reference. Dr Marshall's assessment of the appellant's then medical condition was as follows: "Mr Harneiss has a spondylolisthesis of L5 upon S1. He has disc bars present at L4/5 and at L5/S1. He has intermittent left leg symptoms. 5. Report from Dr John Alchin, Specialist Occupational Physician, dated 1 September 2006 to Care Advantage. Dr Alchin gave the current diagnosis as being as follows: "...a chronic non-specific regional musculoskeletal pain syndrome affecting his low back, with referred somatic symptoms (mainly sensory, but occasionally pain) into both legs, left worse than right. The evidence for this diagnosis is: he has had these symptoms for 4 years, with no radiological (including MR scan) evidence of any significant underlying "red flag" pathology causing his pain (i.e. it is benign); he has seen a neurosurgeon who, on reviewing the MR scan, thought he had 6 'mechanical" low back pain, rather than specific pain due to any structural disruption in his back causing a radiculopathy or spinal stenosis, and who also found no specific neurological deficits in his lower limbs; and, as well as these lack of features of underlying specific pathology, he also has positive evidence of a c regional musculoskeletal pain syndrome: regional tenderness to only moderate pressure of non-inflamed tissues in his low back, pain and limited function well out of proportion to any underlying MR scan findings; typical sleep disturbance with non-restorative sleep. In the absence of any specific underlying "red flag" pathology, or neural impingement clinically or radiologically, the evidence is that the MR scan findings of degenerative changes and anterolisthesis are probably of no clinical relevance, as these have been shown to be unrelated, or at most only weakly related, to low back pain; ..." Dr Alchin went on to question whether there was in fact an injuring event and he commented as follows: "...there is no evidence in Mr Bonkowski's initial report, some 3-4 weeks after the onset of his pain, of an actual injury, either in terms of a causal mechanism (he reports the spontaneous onset of pain), or in terms of examination findings consistent with an injury (e.g. contusion), or radiological evidence (e.g. fracture, etc). In addition the presence of pain does not necessarily mean that injury is present. There is no way of knowing for certain whether Mr Harneiss did, or did not, have an actual injury of his low back in May 2002. If he did, it would have been a minor "strain" type injury, as there was no evidence of structural damage." 6 . Comprehensive Pain Assessment Report dated 31 October 2006. As earlier noted, Dr McVicar was one of the authors of this report and his report gave a diagnosis as follows: Mr Harniess has been described by Dr Alchin as having a Chronic Non-Specific Regional Musculoskeletal Pain Syndrome affecting his low back. To use the taxonomy of the International Association for the Study of Pain, he could alternatively be described as having lumbar spinal pain of uncertain origin. He has somatic referred pain in his left leg and, though he has sensory symptoms in the eg, he does not have objective evidence of a radiculopathy. MRI scanning has not revealed diagnostic findings. The presence of widespread degenerative changes has been noted but, as Dr Alchin has stated, there is little if any relationship between radiological findings such as these and low back pain, and the presence of degenerative change is to be expected in someone of Mr Harniess' age whether or not he has back pain. 7. Report from Dr Barrie Tait, Consultant Physician, dated 21 March 2007, to Mr Cadenhead. Dr Tait had been asked to review the appellant's medical condition for the purposes of review and he was provided with all the medical reports previously obtained. Dr Tait gave as his diagnosis as follows: Chronic pain of musculoskeletal and neurological origin. 7 Segmental dysfunction at L4/5 and L5/S1 mobile segment. Nerve root irritation left L5 and left S1 nerve root, with muscle wasting and sensory changes. He then gave his opinion as follows: In my opinion, based on the history obtained from Mr Harniess and the physical examination findings, Mr Harniess' chronic soft tissue changes and chronic pain follow on from his accident in May 2002. In relation to the appellant's pre-existing lumbar pathology, as disclosed on the MRI Report, Dr Tait stated as follows: This report indicates that there have been progressive longstanding biological changes in Mr Harniess' lumbar spine. The International Peer Review Literature has repeatedly confirmed that there is no direct correlation between medical imaging changes and pain with regard to low back pain. It is therefore not possible to state that the medical imaging demonstrated changes have been "rendered symptomatic". The soft tissue damage resulting from the accident and the pathological changes as demonstrated by the imaging studies run concurrently but are not necessarily linked. His final comment stated as follows: At present the physical findings are consistent with segmental dysfunction of the mobile segments at L4/5 and L5/S1, though it is not possible to state exactly which of the soft tissues is giving rise to the pain problem. In addition there are neurological changes present which have evolved over the course of the past five years consistent with irritation of the L5 and S1 left nerve root. B. Report from Dr Tait dated 28 October 2008 to Mr Cadenhead. Dr Tait expanded on the soft tissue aspect of his earlier advice and he stated as follows: The soft tissues in the involved mobile segments, which are innervated and are therefore involved in the production of pain, include the outer third of the ligaments binding the vertebral bodies and the disc structures, the capsules of the zygapophyseal joints, the bony structures and the muscles. In addition the L5/S1 left nerve root, giving rise to a component of Mr Harniess' ongoing pain problem. He then commented on Dr MacVicar's report when he stated: Dr MacVicar's findings are similar to the findings which I recorded, in that "there was clinical evidence of segmental dysfunction between the levels of L3 and L5, with the tenderness most pronounced on the left. There was evidence of nerve root irritation and neurological changes, in that light touch sensation was diminished in the left leg and pin prick sensation was diminished over the lateral aspects of his left thigh". 9 Report from Dr MacVicar dated 13 November 2008 to Mr Cadenhead. Mr Cadenhead has asked for his opinion as to whether the appellant's symptoms emanated from the lumbar zygoapophyseal joints, and he stated as follows: As far as my suggested possible diagnosis of pain of zygapophysial joint origin is concerned, the only way to confirm or exclude this diagnosis is to anaesthetise the joints by blocking the medial branches that innervate them and assessing whether or not this 8 relieves Mr Harneiss' pain. I did recommend this form of investigation two years ago but it has not been done. I still recommend this as a worthwhile investigation because lumbar medial branch blocks have therapeutic utility (i.e. if they are positive, the pain can be treated with radio frequency neurotomy). 10. Letter from Dr MacVicar dated 19 December 2008 to Mr Cadenhead. Or MacVicar was asked to comment further on the zygapophysial joint pain and he commented as follows: Diagnosing the zygapophysial joints as the source of a patient's pain does not in itself provide information about the causal relationship between the pain and a particular accident but if pain has persisted since an accident, and did not exist before the accident, it can be concluded that the accident has caused the pain. If that pain can be relieved by medial branch blocks, it can be concluded that the zygapophysial joints that are innervated by these medial branches were injured in the accident. 11. Report from Mr Brian Otto, Orthopaedic Surgeon dated 20 April 2010 to respondent's counsel. Mr Otto was asked a number of questions. On the question of causation he stated: There are sufficient changes in the lower most segments of the lumbar spine to be generators of pain in this man's case. Once established, that pain and the chemical changes within afferent nerves in the dorsal column, have the ability to perpetuate the symptoms and to form part of the chronic back pain syndrome that is established in Mr Harniess. As to whether the symptoms as of December 2006 were causally related to the back injury of May 2002, he stated: The opinions expressed in regard to the injury component are different. At the outset there was no specific injury event, but subsequently this was reported as a one time event initiating symptoms, but I suspect that the first recorded information is the most accurate, being freshest in the patient's and the examiner's recordings, and reflecting a gradual onset of the symptoms in the spine. The pre-existing nature of the changes in the spine, are potentially generators of symptoms and have not been completely excluded, and to that extent there is no confidence to exclude them completely from the initiation of his back pain syndrome. To that extent it cannot be said that the current clinical situation is wholly or substantially due to personal injury by accident, but more likely reflects the unmasking of pre existing changes, which have the potential to produce back pain, and their presence has not effectively been excluded, as the basic cause of his current clinical situation. As to what may be the generators of the appellant's pain, Mr Otto stated as follows: I in fact agree with Mr Bonkowski's assessment that there was the potential for the existing changes in the spine to be generators of back pain, and there are sufficient pain sensor structures such as the annular wall, which was distended by the disc bulge at L4/5, and the nerve root posterior longitudinal ligament being stretched by that annular bulge at that level, to be a generator of his back pain. 9 [5] Mr Cadenhead, Counsel for the Appellant, submitted that consideration of the issue in this appeal must proceed from the basis that the appellant did suffer a personal injury from a specific event as indicated by the grant of cover. He further noted that the appellant was asymptomatic prior to this injury event and therefore there is a temporal connection with the onset of pain, although he accepts that this is not determinative of the matter. [6] Counsel submitted that it is only Mr Otto who is contending that the degenerative condition of the appellant's spine is the cause of back pain, although this has been specifically determined as not being the cause by Dr Alchin, Dr Tait and Dr MacVicar. [7] Counsel submitted that from the evidence it is simply not possible to readily identify what structures are causing the pain but that nevertheless both Dr MacVicar and Dr Alchin indicate that the pain has at least been caused in part by the trauma of the accident event. [8] Mr Evans, Counsel for the Respondent, submitted that the key report is the earlier report from Mr Bonkowski and that it was Mr Bonkowski's opinion that the accident triggered symptoms in what was previously an asymptomatic spine. 19] Counsel also referred to the report of Dr Alchin, who simply identified non-specific musculoskeletal pain disorder and that that pain is not injury related, and at best the accident event may have triggered the pain rather than caused it. [10] Finally, Counsel submitted that Dr Tait does not give reasoning for the causative link and merely indicates that the pain followed on from the accident event, thus merely indicating a temporal connection. DECISION [11] The decision in issue was a decision made by Care Advantage pursuant to s. 117(1) of the Act, whereby it asserted that on the basis of medical information which it had, the appellant was no longer entitled to continue to receive entitlements under the Act. [12] It is the case that in decisions made pursuant to s. 117(1), the onus is on the respondent, which has taken over responsibility for this claim, to establish that the medical evidence no longer justifies the continuation of entitlements on the basis that the appellant's then medical condition is no longer causally linked to the covered injury. 10 [13] The covered injury was initially asserted as being sciatic pain caused by a lifting incident at work. It can be accepted that the type of injury alleged was of a low back sprain, which was asserted as bringing on the sciatic pain. [14] From the MRI scan taken some three months after the injury incident, it is clear that this appellant had significant pre-existing degenerative conditions in his lumbar spine, the findings being disc dessication and annular bulging at L1/2 and L3/4, disc extrusion at L4/5, with spinal stenosis, and Grade I spondilolisthesis and central disc extrusion at L5/S1. To use the words of Mr Bonkowski, the appellant's spine was "distinctly unhealthy". [15] Mr Bonkowski noted that whilst there was significant disc degeneration, he also noted that there was no evidence of nerve root entrapment or spinal stenosis syndrome, and therefore on that basis he identified the appellant's condition as being one of mechanical back pain secondary to the slippages and disc bars at L4/5 and L5/S1. [16] There is no evidence from that MRI scan or from any subsequent medical interpretation of it, that the lifting event of 22 May 2002 caused any physical injury which was apparent from that MRI scan. That is not to say that the injury suffered was not a soft tissue injury, which would not show up on any radiological imaging, but it does identify that the state of the appellant's lumbar spine post-accident was no different from that which it was pre-accident. [17] It was Mr Bonkowski's opinion, being an opinion given close to the time of the lifting incident, that the lifting incident was an aggravating factor which triggered symptoms which had previously been quiescent, albeit in an unhealthy back, to use his words. [18] I interpret his comment that the pain was caused by the lifting incident, as being that the incident brought on the pain without it in effect causing any medical condition which was itself the cause of pain. Mr Bonkowski also uses the word "triggered". [19] Dr Alchin's diagnosis was that of chronic non-specific regional musculoskeletal pain syndrome, and he too noted that there was no radiological evidence of any underlying pathology causing the pain. He considered that the degenerative changes in the appellant's lumbar spine were not the cause of that low back pain. However, he does identify that if the appellant did suffer an actual injury in May 2002, it would only have been of a minor strain type, as there was no evidence of any structural damage. 11 [20] Dr MacVicar agrees with Dr Alchin's diagnosis of chronic non-specific regional musculoskeletal pain syndrome, and he said that it could alternatively be described as being lumbar spinal pain of uncertain origin. [21] Noting as I have, that Mr Cadenhead relies to a significant extent on the evidence of Dr Tait, I note that Dr Tait gives a diagnosis which includes nerve root irritation at left L5/S1. This is a diagnosis that was not evident on the MRI scan, and Dr Tait is the only specialist who identifies pain as having a neurological origin. It is on that basis that Dr Tait gave his opinion that the appellant's chronic pain follows on from the accident of May 2002, but whilst he considers that the appellant is suffering from a soft tissue injury which is giving rise to pain, he cannot indicate what that soft tissue injury is. It is to be noted that Dr Tait is giving his opinion in 2007, and where he states that the neurological changes have evolved over the course of the past five years, consistent with irritation of the L5/S1 left nerve root. [22] This statement, I find, clearly identifies that from Dr Tait's perspective, this appellant is now displaying medical conditions which were not evident at the time of the 2002 injury event, and have only arisen subsequent. [23] The other medical specialist on whom Counsel for the Appellant relies is Dr MacVicar, and he is raising the possibility of the appellant's pain being of zygapophysial joint origin. However, I find that he can only put that diagnosis forward as a possibility, as no investigation has been done to determine whether that is in fact the case, and he accepts that it cannot be established without that investigation which consists of lumbar medial branch blocks. [24] As commented on by Mr Cadenhead, Mr Otto seems to be progressing with his opinion from the basis of there being no specific injury event, and he then considering the pre-existing nature of the changes in the appellant's spine, with those being potential generators of symptoms of pain and which cannot be excluded. [25] I find that the evidence as a whole, leaving to one side the evidence of Mr Otto, discloses a situation where this appellant is suffering from non-specific back pain, that is, lumbar spinal pain of uncertain origin. There is a complete lack of any medical evidence identifying any physical condition associated with a physical injury sustained by the appellant in the lifting event of May 2002, and I find that the best assessment of the appellant's condition, as of December 2006, is that the degenerative state of his spine was aggravated or triggered by the minor event of the back sprain incident, but that the ongoing problems are associated with that pre-existing condition and not with 12 any ongoing physical injury which may have been caused by the injury event of May 2002. [26] Accordingly, therefore, I find that the decision made by Care Advantage to suspend entitlements was the correct decision and was made on the basis of evidence which did support a finding that it could not be satisfied that the appellant continued to be entitled to receive entitlements under the Act. Therefore this appeal is dismissed. DATED this 25th day of November 2010 Jeathe M J Beattie District Court Judge