Rogers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 105 /98 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 KEVIN JOHN ROGERS DCA 392/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of May 1998 APPEARANCES: Mr S Allport advocate for Mr Rogers Ms L Rice counsel for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's decision to cancel all the appellant's entitlements under the Act was correct. 2 Background Facts The appellant was a freezing worker by occupation and on the 13th of January 1993 he suffered personal injury in a motor accident. In a claim for cover in respect of that accident dated 18th January 1993 the appellant stated that he suffered a broken nose and cut eyebrow from hitting the steering wheel. The medical certificate also indicated that he had suffered bruising to his chest. The immediate cause of those injuries was his body striking the steering wheel. The appellant continued to suffer from ongoing problems with his chest and remained off work on a doctor's certification until he was cleared fit to resume normal work on 17th of May 1993. For the purposes of determining the extent of his injuries he had been seen by Mr R G Keddell orthopaedic surgeon on 3rd March 1993 and then by Dr A N Graham consultant physician on 21st April 1993. When seen by Mr Keddell he was complaining of persistent pain around the manubrio-sternal junction. Mr Keddell indicated that he had suffered a strain at the manubrio-sternal joint but that this injury should clear in the not too distant future. When the appellant was seen by Mr Graham he was able to state that the chest pain had lessened and that sleeping with the use of Ventolin was helping. There was no necessity for the appellant to see Dr Graham again. The appellant did resume his employment at Affco Freezing Works and by a claim for cover dated 15th December 1994 he sought cover for a back injury said to have been sustained at work on the 15th November 1994. The circumstances 3 stated on the claim form were that his back injury occurred when he was lifting bottom beef. His GP Dr Barnett certified that he had mid-thoracic spine strain. Thereafter Dr Barnett certified the appellant's unfitness for work at four weekly intervals, the certificates signed by Dr Barnett stating the date of accident being 15 November 1994. Included in some certificates issued by a locum, the date of accident is stated as being 30th December 1993. The appellant continued to be certified incapacitated throughout 1995 and in September 1995 the Corporation sought medical opinion from Mr MacDiarmid, orthopaedic surgeon. In his report to the Corporation Mr MacDiarmid narrates that the appellant had talked of thoracic back pain which came on around 30 December 1993. He stated that he had been able to get back to work intermittently until finally abandoning work in December 1994. It was Mr MacDiarmid's impression that the appellant's disabilities were disproportionate to the physical signs and particularly the normal radiological investigation. He went on to state that by the process of exclusion it was likely that he had a degenerative thoracic disc which was a situation that he would have to live with. He further stated that it was likely that the recurrent, repetitive bending would aggravate this degenerative condition. In October 1995 the Corporation were provided with a report from Mr Keddell which advised of his examination of the appellant on 17th March 1994. This report refers to mid-thoracic back pain which came on at work around 30th December 1993. It stated there was no real radiation of the pain and no neurological symptoms. Mr Keddell stated "His pain really is related to activity only so I am not of the opinion at the moment that there is any underlying problems." Mr Keddell again saw the appellant in June 1995 and he noted that his symptoms were much as before with mid-thoracic back pain and no pain radiation or neurological symptoms. Mr Keddell could offer little hope other than his back 4 may gradually improve with time but that he should not consider returning to work at Affco. The appellant continued to be certified unfit for work by his GP and continued receiving weekly compensation. The Corporation next had the appellant examined by Andrew Chancellor, neurologist. Mr Chancellor had Mr MacDiarmid's report and he reported: "I would agree with Mr MacDiarmid that there does not seem to be any simple clear remedial medical or surgical problem and I suspect that he is going to continue to experience ongoing thoracic back pain. This presumably relates to a degenerative disc or other mechanical reasons. Although an MRI might provide further information I think it very unlikely that this will show any directly treatable lesion. There was no evidence of a radiculopathy or myelopathy (spinal cord compression) related to his back pain." In answer to the question "is current incapacity due to the effects of the injury sustained on 15/11/94?", Mr Chancellor stated: "Mr Rogers relates the back pain to his occupation as an Affco freezing worker. This is one of those situations where he presumably has a predisposition to back pain, perhaps related to the minor skeletal abnormality demonstrated on xray but that this has been exacerbated by his occupation as a freezing worker." In answer to the question "does the claimant suffer from any underlying condition. If so to what extent does this contribute to the continuing incapacity for work?" Mr Chancellor stated: "As the nature of the injury would seem relatively minor to produce such a long period of incapacity, it would appear that while the injury may have been 5 responsible for initiating the pain a pre-existing mechanical dysfunction is likely to be contributing to ongoing incapacity." The appellant underwent MRI scan and Mr Chancellor reported: "He has a capacious canal. Over a length of several segments in the mid-thoracic region there is a very thin but definite centrally situated fluid fill space within the spinal cord. It measures no more than 1 mm to 2 mm in diameter and there is no associated expansion of the cord and no intrinsic focal lesion visible. Dr Dodd who reported the films said that this was probably a developmental slightly wide central canal. I have reviewed the films and I think that this abnormality is insufficient to call a 'syrinx'. It may be abnormal but I think it is almost certainly not the explanation for his back pain and as such represents an incidental finding. I would however recommend that he has a further review neurologically in a year's time and I will arrange this." On the 29th of July 1996 the Corporation wrote to the appellant and advised that his weekly compensation and other ongoing entitlements would cease. It advised that this decision was made based on the medical information which confirmed that his incapacity was no longer due to personal injury by accident but rather was due to a pre-existing condition. The appellant sought a review of that decision and after a hearing the Review Officer determined that the Corporation should obtain a further report from Mr Chancellor regarding the cause of the appellant's ongoing incapacity. In addition the Review Officer amended the Corporation's decision from one of cancellation of entitlement to that of suspension pending receipt of further medical evidence. 6 In a letter dated 3rd December 1996 Mr Chancellor stated: "I find it difficult to answer your letter probably because this will be an extremely difficult question to answer. Furthermore I think Mr MacDiarmid might be in the best position to answer your specific point 'your clinical assessment of the degree to which any effects of his accident of 15 November 1994 are contributing to any existing incapacity Mr Rogers is suffering'." Mr MacDiarmid examined the appellant on the 12th of May 1997 and made a further report and in that report he states: "Mr Rogers has chronic low grade back ache. He feels the problem is not related to the car accident but more to the time of the work at the AFFCO meat processing chain. This requires twisting, bending and lifting, all of which aggravates his mid- back pain. He has been extensively investigated and all investigations have not shown any appreciable abnormality in his low back. It is therefore unlikely that there will be any miracle cures and unlikely that he will ever get back on the AFFCO chain. My impression is also one of a young man who is not particularly well trained or skilled and does not have the entrepreneurial incentive to find himself a place in the workforce that is back friendly. He has very much become a welfare dependent. By the process of exclusion I suspect that Mr Rogers has a low back which is not designed for the type of working activities which he is used to at AFFCO. Further, I feel that he has had a very thorough assessment and no cause for his problem can be found and certainly I cannot add any further information to what has already been documented. In view of the fact that all X-rays and investigations have been normal I would be unable to support his ongoing claim with ACC and I feel that the unemployment benefit would be more appropriate for him now." 7 On the 12th August 1997 the respondent advised the appellant that it was confirming the earlier decision and that weekly compensation and other ongoing entitlements were ceased as of 11th August 1996. The appellant sought a review of that decision and the hearing of that review took place on the 23rd October 1997. No new medical evidence was submitted for the purposes of the review and the Review Officer ruled that there was no evidence which established on the balance of probabilities that the cause of his continuing back pain was the lifting accident that occurred on the 15th November 1994. Decision The determination of the issue in this appeal involves consideration of whether there is a causal connection between the appellant's present symptoms and the personal injury by accident suffered on the 15th November 1994. It is to be noted that at the time of the motor accident in respect of which the appellant claimed cover there was no suggestion of any back injury being sustained in that accident and the medical evidence seems to establish that the appellant's back problems commenced from about the 30th December 1993. The medical reports from Mr Keddell certainly verify that and the tenor of his reports are that his back injury occurred over time. The fact of the matter is that the appellant continued to work despite suffering back pain from time to time until the 15th of November 1994 when it would seem the back pain from the lifting and the type of work that he was doing at AFFCO had got to the stage where he could not put up with it anymore. 8 The evidence which includes that of the appellant himself is that there was no particular event or incident which brought about the back pain, but rather it was an ongoing series of events not necessarily individually identifiable, but culminating in him being in a state of pain to the extent that he could not work. The medical evidence is that he has chronic low grade back ache and that this has occurred from the fact of a pre-existing condition which has been aggravated over time by the particular actions he has been required to perform whilst working on the AFFCO chain. The definition of "accident" in the Act specifically excludes any gradual process. However that is not to say that personal injury by gradual process is not covered under the Act as section 8(2)(b) does provide for personal injury caused by gradual process arising out of and in the course of employment as defined in section 7 of the Act, to be covered. The distillation of the medical evidence which was before the Review Officer and which this Court has also considered indicates that this appellant is suffering from a disabling back problem to some extent but that this problem cannot be put down to any circumstance that could be described as accident within the meaning of section 8(2)(a) of the Act. For this reason therefore I do find that the decision of the Corporation was correct insofar as this appellant could not establish any causal connection between an accident and the fact of his ongoing incapacity. However I consider that this appellant may well have a claim under section 7 of the Act, certainly on the evidence presently on the file there is a strong suggestion that his back problems have developed as a result of the employment tasks carried on at AFFCO. Accordingly I direct that this claim be remitted back to the Review Officer for him to direct that the appropriate enquiries be set in train to determine whether or not the appellant is entitled to cover under section 8(2)(b) and section 7 of the Act. 9 Whilst the existing medical evidence will be relevant there will need to be the appropriate inquiry that is required for claims under section 7 and the Corporation will be required to make a decision on entitlement as and when that inquiry has been completed. DATED at WELLINGTON this 19 day of may 1998 M J Beattie District Court Judge Rogers.doc KD