Taylor-Waters v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 254 /97 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 LOUISE ANNE KAYE TAYLOR- WATERS (formerly) GALLAGHER DCA 27/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of November 1997 APPEARANCES: Ms L Taylor -Waters in person Mr JS McHerron for respondent DECISION OF JUDGE MJ BEATTIE The issue in this appeal is whether the Corporation's decision of 23 August 1994 to cease payment of weekly compensation to the appellant pursuant to section 73(1) of the Act was correct. 2 Background Facts On the 19 February 1991 the appellant lodged a claim relating to an injury which she sustained on 30 November 1990. In that application she stated that in the course of her employment as a Matron of a resthome, a large patient fell on her causing her to injure her back. The Corporation accepted the claim and began paying Earnings Related Compensation. The appellant continued to receive earnings related compensation and other entitlements such as homehelp until the Corporation's decision made on the 23 August 1994 in which it advised that after giving full consideration to all the medical information the Corporation considered that the effects of the injury of November 1990 have now passed and any ongoing incapacity was no longer related to that injury. The particular medical report which brought about that decision was a report from Dr Bonkowski, a Neurosurgeon, who advised that there was nothing in the appellant's current symptoms or incapacity which were attributable to the accident of November 1990. At the review hearing the Review Officer considered all the medical reports, many of which referred to seemingly complex psychology problems and that these have clouded the finding of the origin of her problem. The Review Officer accepted the opinion of Mr Bonkowski and ruled that the appellant did not satisfy the test of incapacity under section 37 of the Act which would entitle her to ongoing compensation and accordingly the decision to cancel weekly compensation was confirmed. At the hearing of this appeal the appellant submitted that her present incapacity was attributable to the accident in November 1990, that a heavy 3 patient she was helping into a shower had a seizure and together they fell backwards and her back was injured when she fell over the shower step. She stated that from that time she has suffered from pain and problems from that injury and that the accident has affected her whole way of life. She stated that she has had to give up many of the activities she formerly enjoyed, principal among which was her involvement with the St. John's Ambulance Brigade. In essence she believed that she was not being treated fairly by the Corporation. She says that she has been affected psychologically and physically both by the accident and by her treatment. She says that she is truthful and genuine in her claim that she is still suffering from the accident injury. There is the further fact which the respondent contends is significant and that is that the appellant was prosecuted by the Corporation for fraud, both in relation to the receipt by her of earnings related compensation and to homehelp and, received a suspended sentence of imprisonment. Relevant Statutory Provisions The provisions relevant to this appeal are sections 37 and 73(1). Section 37 states as follows: 37. Test of incapacity - For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacity shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred or, where section 49 of this act applies, any other employment for which the person is qualified by reason of experience, education, or training, or any combination of them. 4 Section 73(1) states: 73. Suspension, cancellation, or refusal of compensation and rehabilitation - (1) The Corporation shall, ... if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service or related transport, or the payment of compensation, grant, allowance or provision of rehabilitation. On the basis of those provisions the question that this Court needs to consider is whether the present incapacity of the appellant is as a consequence of the personal injury suffered by the appellant on 30 November 1990. The Court has to determine whether that injury is a material cause of the present incapacity. Such a question is essentially a medical question and I find the relevant medical evidence to be as follows: 1. In a report dated 17 June 1991 Mr C G Odlin, a pain specialist reported: "Louise has a very complex physical, psychological problem which is not going to get better quickly although she may have periods of being relatively pain-free and almost fully functional." 2 . In a further report dated 4 July 1991 Dr Odlin stated: "Thank you for your letter of the 19 June in which you correctly summarised my report as suggesting strongly that factors other than "Personal Injury By Accident" are operative in Louise's ongoing pain syndrome. However, the question that you pose as to whether the Corporation has a responsibility 5 towards the claimant or not, is not really a medical problem but rather a societal and political one. Although the incident in which a heavy patient fell on her on the 13 November 1990 was mentioned by Louise it has never been a feature of her history or presentation of her problems. One must remember that Louise was alleged to have intermittent back pain ever since. This lifting incident on the 13 November has been another exacerbation of an ongoing problem. However, had the heavy patient not fallen on your claimant she may very well have still been working for the geriatric home. One could argue also that by accident by birth and upbringing Louise has been set up for developing the chronic pain syndrome that she has. So yes the Corporation has a responsibility towards the claimant but this is and should not be a 100 per cent responsibility." 3 . A report received from the Leinster Orthopaedic Centre on 12 October 1991 stated as follows: "Louise Gallagher I have not seen for eighteen months and she has now resigned from a Nursing Home, Matron position. She is getting pain in this left leg and pain in the left arm, weakness of both and swelling of both she appeared absolutely distraught and in a very nervous state today and I must say my examination was rather incomplete as I certainly found the anxiety component to be much too great. She did not co- operate with the examination particularly and there are simply complex over riding features here. She indicated a fracture of a 3 vertebrae some years ago and my xrays in 1989 did not show any abnormality of significance. I was not too clear about things even back in 1989 and did mention that the weakness in the left arm 6 appeared to be global with no anatomical distribution. I have prescribed some Valium in the meantime but think that she should see Cam Odlin at the Pain Clinic for his overall impression and assessment. Certainly orthopaedically I have nothing further to offer." 4. Mr Bonkowski, Neurosurgeon, reported to the Corporation on 16 May 1992 as follows: "1. Diagnosis The diagnosis is not totally clear. We have to accept that Mrs Gallagher did sustain some injury to her spine as a result of a heavy patient falling on her in late 1990. However she gives a past history of spinal problems dating back to the late 1970's and if she did indeed have a substantial injury as she claims, then her current condition is an aggravation of a pre-existing injury. Superimposed on the organic injury there is probably a significant psychological component, and I suspect that Mrs Gallagher has a somatisation disorder, although I do not pretend to any psychological qualification and such a diagnosis would be best made by a Psychiatrist. 2 . Cause of Current Condition We would have to say that had a heavy patient not fallen on her then she would probably not be in her current condition: Whatever we may conclude about the exact nature of Mrs Gallagher's condition, we have to take her account of a heavy patient falling on her at face value and presumably had that accident not occurred, then Mrs Gallagher would not be in her current state, might possibly still be working and therefore her condition, though complex in its aetiology, is related to the accident in late 1990." 5. In a further report dated 24 March 1993 Mr Bonkowski advised as follows: 7 "I would refer you back to my report of May, 1992, when I had great difficulty in determining exactly what organic component Mrs Gallagher's pain syndrome contained. I was at that time of the opinion that her primary problem was of a somatiform disorder with very little in the way of structural disease within her lumbar spine to account for her symptoms. I was further of the opinion that ultimately we would not be able to be more definitive on her disease process until a more thorough radiological evaluation of her spine could be performed. To this end I think that Mrs Gallagher should have an M.R.I. scan to exclude the possibility that she does harbour some other disease process within her lumbar spine to account for the extensive motor and sensory deficit of the left leg." 6. An M.R.I. scan was undertaken on 7 March 1994 and Mr Bonkowski reported to the Corporation on 20 June 1994 as follows: "There is therefore no evidence of any significant structural process within the discs or the vertebrae which would be consistent with any previous trauma and no local structural reason for explain her continuing lumbar pack pain, nor the neurological deficit she demonstrates in her leg. The MR scan of the thoracic spine is similarly largely unremarkable, there is a slight loss of disc height and disc water at the T7/8 and T8/9 levels, but no evidence of any substantial spinal cord impingement and again nothing which would account for a neurological deficit referrable to her leg. As stated above, fairly extensive scans of the cervical spine have also been carried out, the Radiologist reports impingement of multiple neural foraminae within the mid-cervical area consistent with multi-segmental spondylitis changes. However the central spinal canal appears to be capacious, with no evidence of compression of the spinal cord, nor narrowing of the spinal canal and again the cervical spine changes would not be such as 8 to cause her leg symptoms and weakness. Although the narrowing of the vertebral foraminae could result in some degree of symptoms in her arms. I must confess that on reviewing the plates I find it very difficult to convince myself of any substantial neural canal involvement at any one level of sufficient severity such as to cause a marked brachalgia. Therefore in terms of the abnormalities demonstrated on the MR, I would be obliged to say that there is virtually no evidence of any previous substantial trauma to the spine of such degree or character that it could be held as responsible for her current symptom complex and incapacity and there is therefore nothing in the films which could show that her current symptoms or condition is attributable to her accident in November, 1990." Decision An analysis of the medical evidence establishes that whilst there is no doubt that the appellant is suffering from a disability, the onus is on the appellant to establish on the balance of probabilities that her present physical condition is directly attributable to the personal injury sustained by her in November 1990. It is to be noted that Mr Odlin's first report of June 1991 observes that the appellant has a complex psychological problem. Mr Bonkowski also refers to the fact that super-imposed on the organic injury there is probably a significant psychological component. I note that Mr Bonkowski's opinion, expressed in his report of 20 June 1994, was given after a full and exhaustive examination of the radiological evidence and I consider this report to be the definitive report for the purposes of determining the issue in this appeal. This report is the distillation of two years of examination and diagnosis of the appellant and the clear conclusion reached by Mr Bonkowski is that there is nothing in her 9 current symptoms or condition which can be attributable to her accident in November 1990. Having regard to that medical opinion I find as a fact that the appellant's present incapacity, or the symptoms she presently displays are not as a consequence of or connected with the injury she suffered in a fall in November 1990. It follows from that, as a matter of law the appellant is no longer suffering an incapacity within the meaning of section 37 of the Act for which she is entitled to cover and accordingly, the decision to cancel her entitlements under section 73(1) of the Act was the correct decision. The appeal is therefore dismissed. DATED at WELLINGTON on this With day of December 1 M J Beattie District Court Judge Louise.doc(gm)