Kalis v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WHANGARE Decision No 34/2009 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN KORNELIUS KALIS Appellant (Appeal No. AI 129/07) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Ac Respondent HEARING: at WHANGAREI on 18 November 2008 APPEARANCES Mr. H Hunt, counsel for appellant. Ms S Mechen, counsel for respondent. RESERVED DECISION OF JUDGE J CADENHEAD ISSUE [1] The issue is whether the suspension dated 1 September 2006 suspending the appellant's ongoing entitlements, on the basis that his symptoms are no longer related to the injury he was granted covered for was correct. BACKGROUND [2] I have substantially used the background of facts provided by the respondent, as after a perusal of the extremely lengthy file is seems accurate. [3] The appellant sustained an injury to his lower back on 12 April 1993, while lifting a fridge. At the date of injury the applicant was employed by Placemakers. He I:JUDICIAL\CADENHA\ACC\ Kalis decision returned to work for a short time but eventually left in August 1994 due to ongoing pain. MEDICAL HISTORY [4] The appellant was seen by his GP Dr Sprague on 14 April 1993. He recorded the injury as, " lifted large fridge, bent to lift sudden pain in back same side". The diagnosis was "acute lower back strain". [5] Plain x-rays taken in 1993 following the injury, indicated multilevel degenerative changes at the lower three disc levels of 13/4, L4/5 and L5/S1 with the most significant change at 14/5. [6] . Symptoms in the lower back, right side and into the leg and foot persisted, thus Dr Sprague referred the appellant to Mr Lyon, orthopaedic surgeon. In light of the symptoms Mr Lyon opined that it was likely there was a disc protrusion at one of the lower levels and requested a CT scan. [7] The CT scan indicated narrowing at the L4/5 level secondary to spinal stenosis, but there was no evidence of disc protrusion. On viewing the scans Mr Lyon was suspicious of a sequestrated disc at L5-S1 level on the right side, and after discussion with the radiologist requested a myelogram. The myelogram indicated a moderate disc protrusion at the L4/5 level affecting the right L5 nerve root. [8] The applicant was placed on a waiting list by Mr Lyon for a L4/5 discectomy, which Mr Lyon opined may be beneficial. Mr Lyon was not however keen to offer surgery and it was decided that the appellant would have epidural injections into this area. The epidural injections assisted symptoms. [9] In August 1994 the appellant aggravated his injury when bending to pick up the soap in the shower. He required time off work and eventually sought weekly compensation in September 1994. Further investigation was carried out with a referral again to Mr Lyon. Mr Lyon noted in October 1994 following a further CT and follow up myelogram that a disc protrusion was indicated at L3-4. Disc changes were noted again at L4/5 and L5/ S1. [10] Though surgery was discussed Mr Lyon again requested an epidural injection. N [11] In 1996 following a MRI Mr Lyon advised that L3/4 was the most likely cause of the ongoing symptoms. The conclusion of the MRI read, "Moderate spinal canal stenosis at L3/4. No evidence of significant cauda equine compression." [12] Symptoms had improved to the point where the appellant was taken off the waiting list. [13] Mr. G.R.C Howie, spinal surgeon reviewed the appellant in August 1996 on the question of surgery. He advised that:- "MRI scan shows changes of Schmorl's nodes from LI-L4 with altered signal intensity at L3/4, L4/5 and L5/SI. There is small high intensity zone posteriorly at L4/5. There is a minor bulge at L5/SI to the right. As I have discussed with him, the presence of multilevel change of this nature means spinal fusion is unlikely to help him. There is no evidence that there is one particular level which is more of a problem." [14] The respondent sought a review of all medical information from Mr Alistair Hadlow, orthopaedic and spinal surgeon, in September 1997 to determine the cause of the ongoing symptoms. Following examination of the appellant Mr Hadlow concluded:- "It is my opinion that the patient most likely had changes of discogenic disease in his lumbar spine prior to his accident in 1993. However the accident has caused him to become symptomatic and his on going pain would be seen as secondary to his discogenic disease. " [15] Based on Mr Hadlow's report the respondent suspended the appellant's ongoing entitlements on the basis that ageing was the cause of incapacity not injury. THE FIRST REVIEW [16] A review hearing took place and a decision issued by Mr Cromwell on 7 July 1998 quashed the respondent's decision. [17] In support there were reports from Mr Lyon which in brief identified the disc bulge at L4/5 as causative of the pain the appellant complained of. He was of the firm view that degeneration though present; was not the cause of ongoing symptoms and was in fact a red herring. [18] The respondent relied on Mr Hadlow's view coupled with Mr Howie's and the respondent's medical advisor Dr John Monigatti. That view was that the multi-level 3 degeneration, which was prior to injury was causing symptoms. The MRI had not identified an obvious nerve root compromise to account for the pain in the right leg. The injury had caused the appellant to become symptomatic secondary to degenerative disease. [19] The appellant was duly reinstated his entitlements. Mr Lyon continued to monitor his treatment. The appellant's condition remained relatively unchanged until December 2000. On 13 December 2000 the appellant was seen by Mr Lyon at Northland Orthopaedics. Under the head of history he wrote:- "...For no obvious reason he developed quite severe pain in his low back, buttock and right thigh which is different from previous pain. It also radiates down into his right foot where he has altered sensation. There has not been any significant improvement and he now has great difficulty in sitting down. . . . . Clinically it would appear that Kees has developed some nerve root irritation and compression to the right leg. There are no definite clinical localising features but certainly there is some suggestion that maybe an upper lumbar nerve root could be involved such as L3 although the distribution of the sensory change would suggest probably L5 and perhaps SI. I feel than a MRI scan is required at this stage and I will review him following this." [20] A MRI was taken on 20 December 2000. The overall comment was:- COMMENT Moderate sized right paracentral disc extrusion L5-SI which is displacing the right SI nerve root and extends to the right LS nerve root within the neural foramen. Annular tear L2-3. Mild canal stenosis L2-L3 and L3-L4. [21] Mr Lyon saw the appellant following the MRI and advised on 31 January 2001:- " Overall Kee's symptoms seem to have improved somewhat since I last saw him. The severe pain has settled to a degree but he still has pain affecting his leg. On the right side it mainly radiates from his lumbar spine as far as his knee but not beyond and this is associated with the SI nerve root signs. [22] As the symptoms had improved Mr Lyon recommended ongoing conservative treatment. In March 2001 the respondent sought an opinion from Mr Brian Otto, orthopaedic surgeon, as to the cause of ongoing symptoms. Mr Otto examined the appellant and all relevant material. 4 [23] Mr Otto reported on 6 March 2001 in conclusion he wrote:- "His continuing incapacity is now more related to the disc degenerative disease at the central lumbar discs as outlined in the report and the effects of the original accident on 12 April 1993 I feel are essentially settled with only a minor legacy of sensory disturbance in the right calf." [24] On the basis of this finding the respondent suspended the appellant's entitlements. The appellant duly lodged a review application. The review was delayed while further opinion was obtained. [25] Dr Ruttenberg, Branch Medical Advisor, noted the difference in medical opinion and sought input from Dr Monigatti the respondent's senior medical advisor. Dr Ruttenberg in particular wanted comment on the change in radiological presentation from 1996 to 2000. As he noted the L5-S1 disc extrusion, with displacement of the right SI nerve root is in complete contrast to the 1996 MRI which did not show any evidence of a L5-S1 disc extrusion. [26] An opinion on the papers was sought from Mr Jeremy Hopkins, orthopaedic surgeon and medico-legal consultant. Mr Hopkins reported on 18 July 2001. He completed a very detailed analysis of the medical information, including the report of Mr Otto. [27] Mr Hopkins noted there was a difference in the reporting of the radiological investigations between 1993, 1994, 1996 and 2000. He opined that it was now 7 to 8 years since the injuries and it appeared there was no longer any evidence of nerve root compression evidenced by normal straight leg raises. He went on to write:- "To me, this would seem to suggest that any effects of a disc protrusion, be it at L3/4 or LSSI, must largely now be a thing of the past, and their effects on this man's lumbar spine and Cauda equine. It is quite clear that this man has wide spread disc degeneration with facet joint degeneration from L3 down to the bottom of the lumbar spine. He also had possible annular tears and changing findings in relation to 13/4 and L5/SI, but the latter seems to be slightly more permanent. Clearly, the L5/SI was not outlined as being a major cause of problems in earlier investigations, as the problem appeared to be at 13/4 as I read the report. The fact that the scanning appearances have changed, yet his symptoms appear to have continued on unchanged, would tend, in my opinion, to reinforce the view that not all annular tears or mild disc bulges give rise to significant symptoms and would reinforce, in my view, that this man's ongoing symptoms are almost certainly related to his quite widespread lumbar degenerative spondylosis from L3 to the sacrum." 5 [28] Mr Lyon reported on 24 July 2001, and in particular addressed the report of Mr Otto highlighting a number of inaccuracies, these centered around the hospital referral in the early stages for discectomy and how Mr Otto had interpreted the radiological findings. [29] Mr Lyon remained of the firm view, and thus contrary to Mr Otto, that it was not degeneration that was causing ongoing symptoms. That the clinical findings were not consistent with one single disc lesion but could well fit the investigations which showed at various times that the L3-4, L4-5 and L5-S1 discs had all had signs of damage and degrees of disc prolapse. He opined that it was not helpful to try and differentiate between degeneration and disc damage as one could play a role in the other and vice versa. [30] This report was given to Mr Otto for comment, which he did on 29 October 2001. Mr Otto went over the material again. He disagreed with Mr Lyon on the issue of degeneration he wrote:- " I note a comment by Mr Lyon that the presence of disc degenerative disease does not effect whether a disc protrusion or annular tear is likely to develop which of course is not true in that most discs with some degree of degeneration change become much more likely to protrude and have sequestrated fragments associated with them because of that underlying degenerative change." [31] He concluded by writing:- "There is no conflict of evidence in either report in that this man demonstrates substantial disc degenerative disease over three levels in his lumbar spine with variously documented disc protrusions at the L4/5 level and L5/SI level equally able to produce pressure on the LS nerve root and some changes to the right leg. The fact that he has multiple levels of disc degeneration and a predisposition to disc protrusion associated with those changes is a reflection on the basic underlying pathology in this man's spine.' [32] Mr Lyon reported further on 4 December 2001 providing a summary of his treatment and opinion with regard to the appellant confirming his view that the injury was causative. THE SECOND REVIEW HEARING [33] The matter proceeded to hearing before Mr Dunn on 10 December 2001, however the respondent revoked the decision on the basis issues raised by the appellant as to accuracy of information in particular reference to Mr Otto, would be investigated. [34] Following, the respondent sought an opinion from Mr. O.R. Nicholson, orthopaedic surgeon, in an attempt to have a concluding opinion on the issue of causation. In particular a discussion on degeneration, injury and its relationship to pain. [35] Under the head of Discussion and Opinion Mr Nicholson wrote:- "The symptoms experienced, following the lifting injury on 12.4.93 of pain in the back, with radiation to the right leg, are consistent with a diagnosis of an acute low lumbar back strain, with some degree of nerve root irritation. .. [36] Mr Nicholson opined that nerve root irritation in a person of 44 years, (the age of the appellant as at April 1993) could be caused by a disc prolapse, another cause of nerve root irritation is degenerative changes, affecting the intervertebral discs and the posterior facet joints, causing narrowing of the neural foramina. [37] Mr Nicholson goes on to analyse the radiological investigations. He accepts that changes noted on investigations correlate poorly with symptoms, but goes on to write:- 'It is well recognised that any joint which is affected by degenerative changes, is more likely to be strained than a normal joint, and once strained the symptoms may be slow to settle, and on occasions persist indefinitely. However, when symptoms develop, it cannot be argued, the degenerative changes are of no significance, and an incidental finding. Expressed alternatively, were it not for the presence of the degenerative changes, Mr Kalis's symptoms would have been anticipated to resolve." [38] In conclusion he wrote:- "My opinion can be summarised by saying that Mr Kalis's continuing symptoms, are a consequence of the degenerative changes in the lumbar spine, and not a consequence of personal injury." [39] Mr Nicholson also gave comment on the findings in the Cornwell review of 1998. He advised that in his opinion from a purely medical aspect, the decision considered the history of onset of symptoms and failed to look at the reason for the continuing symptoms. [40] On the basis of this decision and the weight of opinion the respondent suspended the appellant's entitlements on 21 October 2002 on the basis that his ongoing symptoms were due to degeneration in the spine and not a result of his 1993 injury. [41] The appellant filed a review application. [42] In support of the application a further report was presented by Mr Lyon dated 16 January 2003, in particular he commented on Mr Nicholson's report. Overall he advised the report was accurate, however they had opposing views in the cause of symptoms. Mr Lyon was also of the view, that it was important to examine and interview a patient. [43] The appellant also presented a report from Mr. M.C. Sanderson, orthopaedic ourgeon dated 14 August 2003. [44] Mr Sanderson concluded:- "Taking the information available into consideration in my opinion Mr Kalis developed an L5 nerve root irritation on the right side as a result of the injury sustained. This could occur at either the L4-5 or the L5-SI level and both discs show evidence of a disc prolapse on the right side. " (45] The matter went to a review hearing on 21 January 2004. Mr Dunn, reviewer quashed the respondent's decision, but gave specific directions to the respondent based on the arguments put by both parties, in brief those directions were:- [a] Mr Kalis' entitlements to be reinstated and backdated to the date of cessation. [b]. A specialist radiological review of all x-rays, MRI and CT scans as recommended by Mr Otto. This is to be by an independent specialist who is to assess whether Mr Kalis is incapacitated because of the accident event in 1993, or from his pre-existing degenerative condition. [c] Mr Kalis is to provide relevant information concerning his claim and undergo a further orthopaedic assessment. [d] ACC has the option of issuing a fresh decision on Mr Kalis' ongoing entitlements depending on the outcome of those investigations. [46] Following those directions a review of all medical documentation was undertaken by Mr Graeme MacDonald, neurological and spinal surgeon dated 30 June 2004. In short Mr MacDonald found that the ongoing cause of symptoms was degeneration. [47] Mr MacDonald referred all radiological material to radiologist Dr John Wilson who reported on 28 June 2004. His review of the material was included in Mr MacDonald's report. Mr MacDonald did not examine the appellant, like Mr Nicholson he was of the view that examination of the patient at this stage, to try to reassess the situation that occurred over ten years ago, would be most unlikely to lead to any further useful information. [48] The appellant was to be examined and reviewed by Mr Otto however this examination was not completed, though a report was written by Mr Otto dated 4 May 2006 this was once again on the papers. An examination and final review of all information, as directed by Mr Dunn, was completed by agreement between the parties by Mr Gavin Farr, consultant orthopaedic surgeon, on 7 July 2006. [50] As there had been considerable complaint by the appellant over the referral of documents to the medical physicians involved in his claim, agreement was also reached between the parties over the documents that were referred to Mr Farr. Mr Farr concluded that ongoing symptoms were no longer injury related and on that basis the respondent issued a fresh decision on 1 September 2006 suspending entitlements. [51] The appellant filed a review application in November 2006. In support further reports were filed by Mr Lyon and a report from Mr Lamb, orthopaedic surgeon. [52] Mr Lamb agreed in the main with the opinion of Mr Farr. He then advised that he could not be certain of the reason for continuing symptoms. He opined that following the initial injury the aggravation and the subsequent prolapses could have been caused by the injury of 1993 weakening the other areas that then prolapsed or it may have been the result of degeneration given the length of time between events. He advised there was no way he could be absolute that the other prolapses would have occurred had the 1993 injury not happened, but on the other hand it may be hard to absolutely exclude injury. [53] The matter was heard by Mr Orange who delivered a decision on 22 February 2007 dismissing the review application. LEGAL CONCEPTS [54] Section 117 Injury Prevention, Rehabilitation and Compensation Insurance Act 2001 provides inter alia: "117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. 2) . The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date (3). The Corporation may decline to provide any entitlement for as ong as the claimant unreasonably refuses or unreasonably fails to - a comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan. (4) This section does not limit or affect any other power of the Corporation to decline or end an entitlement.' [55] Pursuant to section 117(1) of the 2001 Act the respondent may suspend a claimant's statutory entitlements if the respondent is satisfied that the claimant is not entitled to continue to receive such entitlements. The respondent is able throughout the history of the claim to enquire if there is still a link between symptoms and the initial injury. The issue in this case is whether there is a causal link between the applicant's ongoing symptoms and the injury of 12 April 1993. 10 56] The recent High Court decision of Ellwood (CIV 2005-485-536) discussed the issue of onus, in particular Mallon J referred to the situation where the medical evidence is in balance. She said: " [64] In contrast if the test required the ACC/the Reviewer/the District Court 'to be satisfied that there is no right to entitlements' then that test would not be met where the evidence was in balance or unclear. They could not be satisfied because the evidence would have left the position unclear. That said, the ACC must make reasonable decisions. In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative for that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. Mr Beck's proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage. [65] I therefore consider that s 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis. The "not satisfied" test is not met in these circumstances." 57] The approach must be that it is upon the respondent to show on a balance of probabilities that it had suspended the statutory entitlement as it was not satisfied, on the basis of the information in its possession, that the appellant was entitled to continue to receive the statutory entitlement. [58] Section 8(2) of the Accident Rehabilitation and Compensation Insurance Act 1992 provides as follows: "(2) For the avoidance of doubt it is hereby declared that- a) Personal injury caused wholly or substantially by the ageing process; and... is not covered by this Act." [59] This section pertains to the issue that this appeal now faces. As the cases decide the answer is predominately a medical one. However, to say the least this is a complicated case after considering in detail the various medical reports. 11 ANALYSIS [60] Ten orthopaedic specialists have provided opinions in this case. Plus radiologist Dr Wilson, and now Dr Grant Thompson musculoskeletal physician. Seven of the ten orthopaedics are firmly of the view that there was an initial injury byway of disc proplase. There is dissension on the other issue given the multi-level degeneration noted on the first films and continuation of degeneration noted on future investigations, that the ongoing symptoms now arise from degenerative disease, rather than injury. This is the difficult question that is confronted squarely in this appeal and the answer must be looked at from the medical evidence and the facts provided. [61] The medical opinion have in the main agreed with Mr Lyon that plain x-rays and other investigations may not correlate with a patient's symptoms, but on the other hand degeneration and its affects on the spine cannot be ignored and do play a definite role in symptoms as described by the appellant. Some of the doctors take the view that the symptoms that the appellant now suffers from come directly from this degeneration. On the other hand Mr Lyon and a musculoskeletal specialist, Dr Thompson are of the view that the direct pain to the appellant is a direct consequence of the injuries suffered on 12 April 1993. [62] Mr Lyon has advised that the personal injury remains causative. The personal injury was identified through the myelogram as a disc prolpase at L4-5 causing nerve root irritation, though not compression or neurological symptoms. Thus this injury must remain the cause of the ongoing symptoms. Mr Lyon is the one orthopaedic specialist, who has handled the appellant over the years and is the most familiar with his case. (63] Following the directions of Mr Dunn an independent review of the radiological films was undertaken by Dr John Wilson as there had been variance in the reporting. Dr Wilson reported on 28 June 2004. Essentially he advised that there was degenerative disc disease present from 1993 in multi levels of the spine particularly from L3 downwards. The early film in 1993 confirms a disc prolapse at L4/5 and probable compression of the 15 nerve root. The myelogram in 1994 indicated the disc prolapse at L4/5 was now moderate in size thus indicating regression and only mild displacement of the LS nerve root. The CT also showed a small disc herniation at L5-S1 with no nerve root compression. 12 (64] The MRI scan of 1996 showed a residual central L4/5 prolapse not displacing the L5 nerve roots, indicating there had been spontaneous regression of the right L4-5 disc protrusion previously seen. [65] The MRI scan of 2000 showed a large right L5-S1 disc herniation than was previously shown, with moderate displacement of the right S1 nerve root. The residual central L4-5 disc protrusion was unchanged from 1996 and there was no evidence of L5 nerve root compression. 66] It is clear from the investigations that the original L4-5 disc causing irritation of the L5 nerve root had regressed and was no longer affecting the nerve root by 1996. By 2000 the investigation indicate the herniation at the L5-S1 disc has significantly increased and now compressing the S1 nerve root. This is in line with the symptoms as described by the appellant and recorded by Mr Lyon in January 2001 [67] Mr MacDonald is a neurological spinal surgeon, in conjunction with Dr Wilson's report he completed the first independent review on 30 June 2004, following the directions of Mr Dunn. However, he has not examined the appellant. [68] Mr MacDonald confirmed that from the initial film degenerative disc disease was present and multi level. He opined that this type of change would obviously predate the lifting stress described in 1993. [69] He goes on to confirm that the applicant's description of lifting a fridge and having sudden severe sharp pain in the low back particularly on the right side radiating down the leg was in keeping with a 14-5 lumbar disc prolapse, confirmed in the initial investigations. This was also the initial diagnosis of Mr Lyon. [70] Mr MacDonald noted the change in this initial disc prolapse as evidenced by the investigations. In reference to the 1996 MRI he wrote:- " This resolution of the L4/5 disc prolapse previously described in the myelographic study is in my opinion the natural history of a lumbar disc prolapse which is not treated with surgical excision. [71] The 1996 study described advanced degenerative changes at L3/4 and L4/5 discs and facet joints. Under the head of opinion Mr MacDonald wrote:- "I do not believe there is any doubt from the imaging that the patient has advanced lumbar spondylosis. Many of the signs described by Mr Lyon, 13 with the restricted movement of the lumbar spine, and bilateral sciatic pain aggravated by exercise would be consistent with this diagnosis. [72] In the section under comment he advised that the appellant is describing three forms of spinal pathology. Firstly, advanced degenerative change which predated the injury. Secondly the injury of 1993 which resolved. Thirdly, the disc prolapse at L5-S1, which Mr MacDonald did not relate to the injury of 1993 given this prolapse arose on imaging in 1996 and had grown between 1996 and 2000. [73] In conclusion he wrote that it is his impression from the detailed records that the majority of the appellant's symptoms are associated with lumbar spondylosis and not accident related. [74] Mr Farr, orthopaedic surgeon, carried out an examination of the applicant as well as a detailed analysis of the medical records. He was also very aware of the argument put forward by the appellant over inaccuracies in reports and the legal argument over the years. [75] Having carried out this review, he answered specific direct questions on the issue of causation. He advised that the pathology causing the current symptoms as described by the appellant was degenerative disc disease of the lumbar spine. This pathology occurring substantially as a result of a gradual disease process, but that the clearly defined L4/5 disc prolapse that occurred in 1993 was a consequence of injury. In his latest report dated 11 August 2008 he wrote: 'It would seem that degenerative disc disease was present in the lumbar spine in 1993 with disc space narrowing and osteophyte function. The degenerative change in the lumbar spine was asymptomatic as he had no problems with his back prior to the event of 12 April 1993 My view is that the lifting event of 1993 resulted in an L4/5 disc prolapse. This could be considered to be a significant change in the pathology with the development of sciatica. The changes on discogram were consistent with disc prolapse. The most recent x-rays have again confirmed multilevel degenerative change of the lower thoracic and lumbar spine. You have also asked me to comment on the issues raised by Dr Thompson as to the general relationship between the degenerative spine and lumbar pain with further comments on the particular situation of Mr Kalis. In his report of 7 March 2008, Dr Thompson points out that the presence of disc degeneration radiologically does not parallel the symptom pattern and as a predictor of back pain the finding of disc degeneration on x-ray has no diagnostic value. I would agree with this and noted in my report that disc narrowing and osteophyte formation 14 were present on the initial x-rays in 1993 and although not severe, they were evidence of degenerative disc disease of the lumbar spine; apparently asymptomatic pre-injury. The significant change as a result of the injury of 12 April 1993 is the disc protrusion which occurred at the L4/5 level and which produced the sciatica. I agree with Mr Lyon that any comparative analysis of these x-rays over . . the period of time does not have any relevance in determining whether Mr Kalis's ongoing back condition is related to his injury in 1993 or his degenerative change. It continues to be my view that Mr Kalis is severely symptomatic as a consequence of the injury of 12 April 1993 and that the pathology was degenerative disc disease at the L4/5 level complicated by an L4-5 disc prolapse as a result of the injury of 12 April 1993. I have no reason however to attribute the development of the multilevel degenerative change to that injury." [76] Dr Thompson writes in his opinion dated 7 March 2008: "In addition there appeared to be some signs of significant psychosocial distress which is likely to have arisen from the chronic pain but also the continuing litigation to establish his claim with ACC has no doubt taken it's toll and appears to have caused an intransigente on both sides. This environment has been unproductive for rehabilitation. Given the nature of Kalis's injury and pathology, I would have expected, in the normal course of events, that he could have returned to some form of employment some time ago. Mr Lyon has given orthopaedic oversight to Kalis for some years and it struck me that his reports are carefully thought out and he quotes the literature to back up his argument. A number of the reviews have been paper reviews only and constitute expert opinion but have not quoted published research to back up their argument. It would be my opinion, that Mr Kalis' current pain and suffering is a direct consequence of the injuries suffered 12/04/93 and 1994 and that he should continue to be entitled to ACC cover. " DECISION [77] I regret the time that I have taken in writing this decision, but the file and medical report reading have taken a lengthy period of time. It is important that a decision is made on these reports. I have not been able to set all of them out, but have precised bits of what I have considered important. At the end on the day I have paid particular attention to the latest reports of Mr Farr and Dr Thompson. Both these doctors seem to favour the approach of Mr Lyon. I have also taken into account the remarks of Justice Mallon. 15 [78] In my view this appeal is allowed on the medical evidence that I have read. The decision of the respondent is quashed. The appellant is entitled to costs of $3000 and disbursements. DATED at AUCKLAND this 11 of Moved 2009. (J Cadenhead) District Court Judge 16