Clifford v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 190/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN LYNDA JANET CLIFFORD of Manurewa Appellant (Appeal No. AI 50/04) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 9 June 2004 APPEARANCES/COUNSEL Appellant in person F. Becroft for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this appeal is whether a decision of the respondent dated 15 October 2003 declining the appellant entitlements was correct. [2] The decision of the respondent was to the effect that after having looked at all the information available, it had decided that the incapacity of the appellant was https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/190- 2004.doc AE not related to a ongoing injury, but was the result of a pre-existing degenerative condition. The respondent was therefore unable to pay weekly compensation for the incapacity from work from 4 August 2003. Background of Facts [3] In early 2003, the appellant lodged a claim for cover for a back sprain injury, which occurred on 1 February 2003. [4] The matter was investigated by the respondent, and in August 2003 the respondent requested further information from the appellant’s general practitioner, Dr Hutchins. Dr Hutchins provided further information to the respondent, which included a letter dated 1 August 2002 from Allen Barber, neurologist. Mr Barber indicated that the appellant had a background of progressive weakness and sensory changes in both hands, and recurrent episodes of numbness in both lower limbs. He also referred to depression and recommended no specific therapy. [5] In a letter of 4 February 2003, Mr Barber, neurologist, referred to a long history of neck pain and stiffness, as well as bilateral spinal radiculopathies as a result of degenerative changes in the neck. [6] Dr Hutchins wrote to the respondent on 7 August 2003, indicating that the injury of 1 February 2003 was an injury to the neck and upper back, which Auckland Hospital Neurology Department had been overseeing. Reference was made to a subsequent accident on 23 July 2003, for which she had been treating the appellant, in which the appellant had slipped on stairs straining her lower back. Dr Hutchins referred to this accident, as exacerbating previous back injuries of 9 November 1994, 2 September 1995 and finally, 6 February 2000. It was noted that there were two separate disc lesions present on x-rays. [7] Subsequent x-rays in September 2003, showed degenerative change at L5/S1 and Mr Howie, surgeon, advised that revision surgery might be a consideration. [8] During the course of the respondent’s investigations the appellant’s claimed injury on 23 July 2003 was declined on the basis that there was no evidence of any physical injury sustained on that day. 190-2004 2 [9] However, the respondent accepted the February injury and began paying weekly compensation. [10] On 15 October 2003, the branch medical advisor of the respondent, Dr Ruttenburg, reviewed the appellant’s file and indicated that Mr Howie, on two occasions, had stated that the appellant’s pathology at L5 was not post traumatic, but degenerative and aggravated by trauma. [11] On 15 October 2003, the respondent issued a decision declining weekly compensation on the basis that the appellant’s ongoing incapacity was not in relation to the injury, but in relation to a pre-existing degenerative condition. [12] On 20 October 2003, the appellant applied for a review of the respondent’s decision. [13] The review was heard on 26 November 2003 before Mr Dunn, reviewer. Mr Dunn issued a decision on 28 November 2003 dismissing the application. The Review Decision [14] The decision details read as follows:- “There is no dispute that Mrs Clifford suffers from ongoing back problems. At the hearing I advised Mrs Clifford that it was important to consider her entire medical history, particularly her previous accident related injury. Mrs Clifford provided brief medical notes which suggest episodic back pain. These episodes appear to have resolved following physiotherapy treatment. There is no evidence of any significant structural pathology. An x-ray report dated 16 May 1989 revealed no abnormality in Mrs Clifford’s cervical and lumbar spine. Medical notes from Dr B. Thomas suggest intermittent back injury. Radiological investigations following the 1994 event found no fracture or abnormality in Mrs Clifford’s lumbosacral spine. Mrs Cliffors suggested that too much attention had been paid to the suggested diagnosis of HNPP, (hereditary neuropathy with liability to pressure palsies). Tests demonstrated she did not have that condition. The primary issue in this review is whether Mrs Clifford can establish a causative link between her covered injury, on this claim (lumbar sprain), and her current condition, (degenerative spinal disease or spondylosis). That requirement was described in Gazzard v ACC (313/01) where Judge Beattie stated: 190-2004 3 “It is a basic principle of the Act that a claimant only has a right to a statutory entitlement when that claimant can establish that entitlement arises as a consequence of the personal injury by accident for which cover was granted. In the case of weekly compensation the requirement must be that a claimant is incapacitated, as that condition is defined under the Act. The incapacity must be caused by or as a consequence of the personal injury by accident. In other words there must be a direct causal nexus between the injury which was suffered in the accident and the physical condition which is causing the incapacity at the time when that enquiry is being made.” Mrs Clifford attributes her problems to a 1984 motor vehicle accident but there was no supporting documentation nor did ACC have any record of such a claim in 1984. ACC stated that Mrs Clifford’s present claim followed an assault and subsequent reaggravation. Specialist and other evidence suggested that Mrs Clifford’s spondylosis related to underlying wear and tear at multiple levels in her spine. It is settled law that when an accident reveals an underlying condition, cover only extends for the injury related consequences, even if that condition was asymptomatic prior the accident event. Mrs Clifford’s back was certainly not asymptomatic. Section 117 gives ACC the power to suspend or cancel entitlements if it is not satisfied that a claimant is entitled to continue to receive the entitlement. In this case ACC correctly granted cover for a sprain. The evidence is that Mrs Clifford’s back problems are long standing and cannot be linked, on the available evidence, to any particular accident. Therefore, ACC cannot provide any ongoing entitlements, including weekly compensation, as Mrs Clifford’s current incapacity relates to the consequences of the disease process rather than the effects of injury. The onus lies with Mrs Clifford to demonstrate that decision is wrong as Judge Barber commented on page 6 of his decision in Duckmanton v ACC (23/2000): “It is of course, settled law that the onus is on the appellant to establish that his ongoing symptoms are the result of personal injury for which he has cover, and the standard of proof is that of the balance of probabilities. At law, he is simply not entitled to the benefit of the doubt, he is unable to require the respondent to prove its case, and he must prove his case.” Mrs Clifford said she is seeking comment from Mr Howie and details on her earlier injuries. It remains open for Mrs Clifford to approach ACC if she has new supporting medical evidence that can establish the ‘direct causal nexus’ between her incapacity and a covered injury as required by Gazzard. As far as the review is concerned I find there no objective challenge to the medical opinion relied on by ACC. For the foregoing reasons this application is dismissed.” 190-2004 4 The Medical Evidence [15] In a report of 2 September 2003, Mr Howie reviewed the appellant’s case, indicating that the appellant suffered from ongoing degenerative changes of the cervical spine. With respect to the history of injury he provided:- “It is difficult to ascribe the degenerative changes at the lumbosacral level to the injury of 1994 alone in the absence of a significant episode of sciatica “ . [16] In a subsequent MRI Application dated 6 September 2003, Mr Howie diagnosed the appellant as suffering from a degenerative condition. [17] In an Assessment report also dated 6 September 2003, Mr Howie again diagnosed degeneration, and stated:- “Initial injury unlikely to be cause of the degenerative change L5 disc “ [18] When specifically considering the question of whether there was a link between the claimant’s symptoms and personal injury, Mr Howie responded in the negative. He went on to indicate that there were pre-existing conditions and other complaints unrelated to the appellant’s 1994 injury that had caused her current condition. [19] In a further letter of 25 September 2003 Mr Howie provided:- “It seems to me that the injury of 23.7.03 aggravated a degenerative disc, first injured in 1994 (L5/S1).” [20] The reports from Mr Howie indicate, as follows, that:- [a] The appellant’s 2003 injury aggravated symptoms that were last significant following the 1994 injury; [b] The appellant’s 1994 injury aggravated a pre-existing degenerative condition; and [c] The appellant’s degenerative condition is long standing and unrelated to trauma. 190-2004 5 [21] Mr Howie’s reports were later reviewed by Branch Medical Advisor, Dr Ruttenberg, who provided on 15 October 2003:- “Dr Howie has confirmed in two separate letters (6,25th September 2003), that the pathology at the L5 disc level was not post traumatic, but degenerative and aggravated by trauma. The ongoing symptoms are therefore related to this pathology. There is thus no ongoing entitlement and the current cause of incapacity is not as result of ongoing injury” Legal Principles [22] Section 117 Injury Prevention Rehabilitation and Compensation Insurance Act 2001 provides inter alia: “117 Corporation may suspend, cancel, or decline entitlements 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." [23] Section 26(4) of the Act provides: “Personal injury does not include- (a) personal injury caused wholly or substantially by the ageing process.” [24] The approach taken by the District Court to deciding this type of issue was summarised in Shaw 17/00. Beattie DCJ held at pages 13 and 14:- “Looking at the situation and addressing the principle of law which must apply for the appellant’s entitlement to continue under the Act, it must be shown that the appellant is still suffering from the effects of that personal injury by accident even though it may be identified that there are other causes or contributors to that condition. At best the evidence is that it is impossible to say with any certainty one way or the other but that it is certainly consistent for the appellant still to be suffering from the effects of the injury by accident. In circumstances such as the present case where the appellant has been granted cover for a specific injury and is seeking continuing entitlement in respect of that injury, there is an ongoing onus on a claimant to establish that the particular entitlement being claimed is one which the Act allows. In some cases this may require establishing a specific criteria for a particular type of entitlement such as, say, home help or a modified motor vehicle, but on other occasions it requires going back a step further and asking the question whether the particular symptoms or injury which the claimant is displaying and which is the reason for the need that is claimed, is causally connected with the personal injury by accident for which the claimant was granted cover. 190-2004 6 It is when that question needs to be asked that I find that the fundamental concepts contained in Sections 8 and 10 of the Act need to be addressed and, contrary to Mr Sara’s submission, I find they need to be addressed on an ongoing basis throughout the time that a person is continuing to seek entitlements under the Act. The basic concept of section 8 is that cover under the Act is granted to persons who suffer personal injury by accident. When cover is granted for such a personal injury by accident I find that it is more than simply a gateway provision as Mr Sara would have it, in that there is an ongoing requirement that a person who has been granted cover for a particular personal injury, must establish that it is for that particular injury that he is seeking entitlement… It is the situation however that section 10 need not to be resorted to when cancellation of entitlements is contemplated because, as I have indicated, it is implicit in the granting of cover that the cover is granted for a qualifying personal injury subsists that cover can continue. If injury is found to be no longer by accident but from some other cause, then there can be no ongoing cover because the basis for it no longer exists. The ongoing symptoms or malady is something other than the personal injury that originated in the accident. I find that section 10 is a provision which simply reinforces that concept, stating as it does for the avoidance of doubt that certain conditions are excluded from cover.” [25] I think that passage sets out admirably the core principles of the Act. [26] I set out hereunder some of the principles that have developed around a construction of the suspension or cancellation provisions: [i] The onus is upon the appellant to show that she is entitled to continue receiving compensation. This onus is satisfied on a probability basis. The substantive law that applies is that subsisting at the date of cover. [ii] The first step is a causal issue: an appellant, to have a continuing entitlement for weekly compensation, has to satisfy the respondent on the balance of probabilities that the present current incapacity is presently a substantial and effective result of the original injury, for which cover was granted. This issue will generally involve a consideration of the type of injury suffered, the initial x-rays, and medical reports evaluating the present symptoms against what were the reasonable consequences to be expected of the original injury. [iii] If the appellant can demonstrate on a probability basis that the symptoms complained of are still and an effective cause of the accident, then the appellant must go on and demonstrate that 190-2004 7 the present injury giving rise to entitlements is not 'wholly or substantially caused by the ageing process'. The onus of proof of this step is upon the appellant upon a balance of probabilities. What is necessary is a critical analytical assessment of the original injury in the light of the medical reports. This step, while intertwined in many cases with the causation step, is nevertheless an independent step and has to be satisfied by a claimant once the first issue of causation is hurdled. In this respect the 1982 legislation has to be contrasted with the later legislation, where the word 'exclusively' was substituted by the lesser test of "wholly or substantially". This distinction was referred to in Gray v ACC [2003] NZAR 289 by France J. That is upon the issue of ageing, the disqualifying factor of ageing under the 1982 Act must be the exclusive cause of the present symptoms. [27] In assisting in the evaluation of these steps propositions were stated in Fowlie v Accident Rehabilitation and Compensation Insurance Corporation (High Court, Wellington, AP 50/00, 4 October 2000 Hansen J). In Fowlie, Hansen J at p.8 expressly approved the dictum of Beattie DCJ in Finnemore v ARCIC (Napier, District Court, Decision No. 262/98, DCA 312/98, 9 December 1998) at p.9 where Beattie DCJ said: “As was observed by His Honour Judge Middleton in the decision of Bell, and which has been followed by other decisions in this Court, the fact that a personal injury by accident causes previously asymptomatic pre-existing conditions to become symptomatic does not entitle a claimant to ongoing entitlements under the Act when the effects of the injury have dissipated and all that is left is a continuing, now symptomatic, pre-existing degenerative condition. When that stage is reached entitlement must cease.” [28] Recently in McDonald v ARCIC [2002] NZAR 970, Panckhurst J referred to another dictum of Beattie DCJ in Hill (189/98) as follows: “[But] the provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature.” 190-2004 8 [29] Earlier in his judgment, Panckhurst J adopted the reasoning of Judges Willy and Beattie in the decisions of Margaret Smith v ACC [2002] NZLR 1 and Hill (supra), when both Judges rejected reasoning on the basis of the so-called eggskull cases as being applicable to the accident compensation legislation. It was unhelpful to import common law principles relating to damages and foreseeability in this area of statutory compensation. The issue that arises for consideration is the assessment of the relevant statutory definition of personal injury, against the medical evidence and the correct onus of proof, and whether the symptoms complained of are causally linked to the injury suffered in the accident for which cover was initially granted. Inevitably it will be necessary to consider, in each case, what is the medical status of the claimant prior to the accident, together with any changes over the years intervening between the time of the accident and the date at which the Corporation sought to determine the entitlements. [30] These principles have been reaffirmed by Beattie DCJ in Papistock (150/2002), where he rejected the submission that, but for the injury, the claimant’s pre-existing cervical spondylosis, which up to that event had be asymptomatic, became symptomatic, and therefore was the present cause of the incapacity. [31] The above dicta reflect the situation that is commonly encountered of a degenerative condition that was asymptomatic, but whose symptoms were ignited by the injury suffered. While these propositions of principle impact on the second step concerning a consideration of the ageing process, they, also, may be an important analytical tool on the first step of causation. [32] Recently, the High Court has in Teen v ARCIC (High Court Wellington CIV-2003-485-1478, 11 November 2003), considered the issue of a chronic pain syndrome, when there was no obvious physical injury. Wild J in discussing the statutory concept of ‘personal injury’ under the provisions of the 1992 legislation and the submissions of the appellant that incapacitating pain could in itself without evidence of a direct physical injury could constitute a personal injury, said at paragraphs [35] to [37]: "Judge Beattie considered the s4 definition. He said: “[13] It is clear from that definition that physical injury is clearly distinguished as a separate category of injury from mental injury. Physical in this context I find to be in accordance with the dictionary meaning `of or relating to the body as distinguished from the mind or spirit'. Using the definition of physical injury in line with the natural and ordinary meaning it must therefore involve physical damage or hurt, that is bodily harm or damage." 190-2004 9 [36] Mr Corkill pointed out that, a few days later in the related case Jones v ACC and Telecom (3 September 2002, District Court, Wellington 242/02) Judge Beattie repeated this definition adding: "[16] Mr Corkill also referred to the decision of this Court in Williams (80/01), in which I stated: In this context "injury" means damage or hurt and "physical" means of or relating to the body, perceptible to the senses, apparent." As I found in Williams those dictionary definitions are applicable to the meaning of those two words for the purposes of the Accident Compensation legislation as it relates to compensation for personal injury." [37] Mr Miller's reference to Hume Steel Ltd v Peart is not greatly helpful. That case involved the meaning of "injury" in two sections of the Workers Compensation Act 1926-1946 of New South Wales, whereas Judge Beattie was concerned with the interpretation of definitions and provisions in the 1992 Act. Similarly, ACC v E, also invoked by Mr Miller, was concerned with the definition of "personal injury by accident" in the Accident Compensation Act 1982. The Court of Appeal held that a proper construction of that definition required inclusion of the mental consequences of an accident within the term "personal injury by accident", whether or not there was also physical injury. The definition of "personal injury" in s 4 of the 1992 Act is materially different. Indeed, it appears to be expressly designed to avoid the outcome in ACC v E.” [33] The issue, here, is whether the appellant can show that the present entitlement to cover still is substantially causally related to the original injury. The appellant on these facts must show that her present symptoms were caused or substantially caused by the accident. Generally speaking, if that accident merely rendered symptomatic an underlying condition and the effects attributed to the accident have subsisted, that would not be sufficient. The appellant must show that that her present symptoms are directly substantially caused by a physical injury or mental condition caused by the accident for which cover was originally given. The Submissions of the Appellant [34] The appellant says that she has a prolapsed disc as a result of a severe fall on her tail bone on 9 November 1994 for which she had cover. [35] The appellant has provided documentation of over 200 visits to the doctor concerning injuries to her back. 190-2004 10 [36] The submission of the appellant is that in 1994 x-rays show no sign of spondylosis or disc degeneration over and above what would be expected by a person of her age. [37] In 1994 to 2003 she has suffered multiple injuries to the present site from which symptoms are claimed. [38] The appellant relies upon an opinion of Mr Hardie dated 5 April 2004 which says: “I certainly cannot say that these problems are not in some way related to the injuries outlined above.” [39] Further, the appellant relies upon the medical certificates of her local general practitioner, Dr Janet Hutchins. In her medical report of 8 March 2004, Dr Hutchins was of the opinion that the appellant’s lower back condition was accident related rather than degenerative because: “(A) She has had several lower back injuries, the initial incident on 9-11-1994 being a fall downstairs landing hard on her buttocks, which mechanism and degree of force is likely to cause disc prolapse, and including injuries while lifting and bending, and an assault with kicks to the back, which would all be inclined to exacerbate/perpetuate the original injury. (B) X ray very soon after the original injury was normal which is what I would expect for an acute disk injury, and later X Rays show disc narrowing, osteophytes and sclerosis adjacent to the L5S1 disc only. Even on the most recent X Ray the other levels are normal. This suggests something that has affected only the one disc, such as injury. An age/activity related degeneration would affect more than one level even if some were more severe than others.” [40] The appellant submits that the medical opinion of Mr Howie should be discounted, as he did not examine her notes and history. [41] Similarly, the appellant submits that the medical opinion of Dr Karpik should also be discounted, as he spent very little time with her, and did not really assess her condition. She said Dr Karpik never really examined her at all. [42] The appellant points to an assault on 6 February 2000 when she was kicked in the lower back with steel capped boots. Details of the claim were provided at pp.61-63 of the bundle of documents. 190-2004 11 [43] The submission of the appellant is that the symptoms that she is suffering from, even though they may be largely spondylosis, were in fact because the spondylosis in turn had been caused by trauma. The Submissions of the Respondent [44] Pursuant to Section 117 of the 2001 Act, the Corporation is entitled to suspend a claimant’s entitlements where it is satisfied that that claimant is no longer entitled to the same. [45] The issue in the present case is whether, as at 15 October 2003, (the time the Corporation issued its decision), there was a causal nexus between the appellant’s ongoing symptoms and the 2003 accident. It is of further note that the appellant has cover for a back injury sustained in 1994, which appears to have been considered by the Corporation in conjunction with the 2003 accident. [46] The onus is on the appellant to establish on the balance probabilities that there is an ongoing nexus Fowlie (supra). [47] As the appellant has cover under the 1992 and 2001 Acts, the definitions of personal injury under those Acts apply. Accordingly, it is only necessary for the medical evidence to indicate that a non-injury related condition is the whole or substantial cause of the appellant’s ongoing symptoms. Alternatively, it is sufficient for the medical evidence to show that there is no causal nexus between the appellant’s symptoms and the covered injury. In circumstances such as those, it is submitted that it is not the role of the Corporation to postulate as to the cause of the appellant’s symptoms, though in some cases it is prudent and helpful to do so. [48] The medical evidence in this case, particularly reports from Mr Howie, indicates that there is no longer any causal nexus between the appellant’s condition and the covered injuries. The cause of the appellant’s ongoing symptoms appears to be a pre-existing degenerative condition. [49] It is submitted that the radiological evidence throughout, since the late 1980s has showed no evidence of any significant pathology, the only condition of note appears to be degeneration, most recently described in an the MRI report of 24 September 2003 as, “severe spondylosis L5/ S1 disc with mild bilateral foraminal compromise”. 190-2004 12 [50] The appellant has obtained no contra specialist evidence in this case. The respondent submits that the appellant herself in evidence given at the Review hearing, related her ongoing symptoms to a 1984 motor vehicle accident. The appellant has not provided any medical evidence in support of this claim. The Corporation reiterates that the onus is on the appellant to show that there is a causal nexus between ongoing symptoms and the covered injuries, and it is submitted that in this case the appellant has failed to discharge that onus. Decision [51] I have considered the medical evidence in this appeal and it does seem that from the medical reports of Mr Howie there is no link between the appellant’s present symptoms and personal injury. The appellant suffers from severe spondylosis about the L5/S1 disc. [52] The appellant has two claims resulting in cover, one a fall on the tailbone on 9 November 1994 and the other being the cover granted that entitlements were being paid on 1 February 2003, for a back sprain. The appellant has to show on a balance of probabilities that her present symptoms arise from either of these two incidents. Mr Howie thought that it was difficult to ascribe her degenerative changes at the lumbosacral level to the injury of 1994 alone. [53] In his report of 7 August 2003 Dr Barber, neurologist, referred to a long history of neck pain and stiffness, as a result of degenerative changes in the neck. [54] I have considered the medical report of Mr Hardy dated 5 April 2004, who, also reports the presence of severe degenerative changes at the L5/S1 level. He said that these changes may be in some way related to injuries in 1983 or possibly 1994 or 1997. However, he was unable to say there was clear evidence that it is specifically related to any one definite injury. He said he could not certainly say that these problems were not in some way related to the injuries over the period of time. [55] This is not a gradual process claim, but is a claim based upon discrete injuries, two for which cover was granted. I have considered the materials provided by the appellant of the documented incidents over the years and the evidence of her general practitioner. However, I cannot say on a probability basis that her present symptoms are causally related to the injuries for which she has cover. Again, on the 190-2004 13 medical evidence I cannot find on a probability basis that her present symptoms are not arising from an age related condition. [56] I have sympathy for the appellant. However, on the medical evidence that I have considered she has not discharged the burden of proof upon her for the reasons that I have given. [57] The appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this …8th… day of ………July………. 2004 (J. Cadenhead) District Court Judge 190-2004 14