Nassar v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 208 /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 MAHER JABER MOUSA NASSAR DCA 103/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of August 1998 APPEARANCES: Mr M Nassar in person Mr D Tui Counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has entitlement under the Act for ongoing pain he is experiencing in the area of his chest. 2 BACKGROUND FACTS: By a claim form dated 9 January 1997 the appellant sought cover in respect of an injury he sustained to his chest on 9 January 1997. The claim form stated that he strained his chest when lifting a 6 inch steel pipe. The injury occurred in the course of his employment as an engineer with BHP NZ Steel at Glenbrook. The diagnosing doctor described it as rectus abdominus tear. Nothing further happened in respect of this claim until July 1997 when a medical certificate prepared by Dr Kenealy certified that the appellant was unfit for work due to ongoing pain. He diagnosed the appellant as having epigastric muscle tear. The appellant sought medical expenses and weekly compensation. Further details of the injury were sought from Dr Kenealy and Dr Kenealy reported to the Corporation in a letter of 18 August 1997. This report indicated that the appellant was being treated for various abdominal problems prior to the date of the accident in January 1997. His report stated as follows: "He [the appellant] has documented reflux oesophagitis gastritis, duodenitis and a duodenal ulcer all shown on endoscopy. The test for Helicobacter pylori was negative, however he has been empirically treated for this in June 1996 without relief of his symptoms. He also has a hiatus hernia documented on a Barium meal. He is adamant that he has a torn muscle in the epigastric area, perhaps a notion he has derived from the description of the hiatus hernia. He and I disagree on the likelihood of this being a key cause of his pain, ..... 3 . .... He went to the after hours doctor at Takanini Care in January of this year, having developed epigastric pain after lifting a heavy pipe. The doctor who saw him wondered about a muscle strain, or perhaps a hiatus hernia. He had similar episodes previously, also with heavy lifting, however also occurring at other times, including after alcohol, on walking, on going up and down stairs, and particularly with any stress. As indicated, Mr Nassar and I disagree about the cause of his ongoing pain. He insists on interpreting pain with lifting as evidence of a muscle tear which time and rest to heal. I have explained repeatedly that I interpret it as reflux of acid caused by lifting, and consequent oesophagitis . He is now at a stage where he gets pain with any stress and quite brief periods of work, both of which he interprets as evidence that he needs to rest .... He may have a muscle tear indeed his hiatus hernia may have been caused or exacerbated by heavy lifting. However I do not think that even a hiatus hernia and associated acid reflux explains all his pain, and the endoscopy confirms multiple acid-related pathology. He has proclaimed from the start that he knows the main problem is not acid, because he knows what acid feels like. ..... As a consequence of that report and also the advice of its medical advisor Dr Dawson, the Corporation declined to accept the appellant's claim on the basis that from the medical evidence his incapacity appeared to be as a result of reflux oesophagitis, gastritis, duodentis and a duodenal ulcer. None of 4 these being personal injury by accident. The appellant sought a review of that decision. At the review hearing the appellant gave evidence to the effect that he had been a fit person all his life and that the lifting incident of 9 January 1997 aggravated a condition which had been brought about by an earlier lifting incident in August 1995. He stated that at that time he was lifting a desk at work and he fell a sudden crack in his chest and experienced pain straight away. It was following that injury that certain tests were carried out and specialist opinion obtained. The Review Officer found that the medical evidence clearly established that the cause of his ongoing pain was not as a consequence of the 1997 lifting incident. In any event it was only the claim of January 1997 which was before him, not an earlier incident, therefore he found that the Corporation's decision to decline cover in respect of the 1997 claim was correct. For the purposes of the appeal to this Court further opinion was obtained from Mr Andrew Bowker, Laparoscopic Surgeon. In his first report to the appellant's GP (now Dr Choy) Mr Bowker stated, after referring to the various reports and investigations which had earlier been carried out; "Mr Nassar was very keen that I not be influenced by the findings on the above investigations. He feels that too much attention has been focused on the dyspeptic issues as to gastroscopy, ignoring the very direct relationship of physical activity to the symptoms (which of course is not usually an association with dyspeptic problems). However careful examination combined with ultra sound and CT examination looking for any evidence of herniation has not been successful. The symptoms he described are not going to be associated with his small oesophageal hiatal hernia. His symptoms are 5 quite disabling and he would dearly like me to have offered him a surgical solution to his problem but I am afraid I do not have one." In a further report dated 22 May 1998 Mr Bowker states: "Repeated physical examinations by various doctors have not revealed any abnormalities. Investigations have shown a hiatal hernia, but treatment of this has not influenced matters. Nor has eradication of Helicobacter pylori from his stomach. His symptoms are not those of gastro-oesophageal reflux, but would be more in keeping with herniation of tissue through a muscle defect. It is unfortunate that nothing can be found on physical examination, and CT examination of the upper abdomen has not been rewarding either. Mr Nassar's symptoms are very disabling, and I have told him that I would be prepared to explore the area in the hope of finding a muscle defect such as subtle epigastric hernia." The appellant than sought a further opinion from Peter Christie, General Hepatobiliary and Laparoscopic Surgeon, and he reported on 5 June 1998 to Dr Bowker: "Mr Nassar came to me I think for another surgical opinion. I just wondered when listening to his history whether possibly a small portion of stomach getting pinched above a small hiatus hernia may account for his symptoms. I acknowledge that most small hiatus hernias are really asymptomatic but wonder however of the virtue of perhaps repeating the barium study perhaps combined with valsalva to see whether Mr Nasser's sub xiphoid pain occurs at times when his stomach is herniating through the hiatus." In a final report from Mr Bowker dated 14 August 1998 he stated: 6 "Mr Nassar's description of pain is more in keeping with a hernia rather than heartburn, given, that there is a very definite relationship between physical exertion and his symptoms, but a complete lack of correlation between the factors that usually aggravate heartburn (changes in posture, spicy or rich food, orange juice, alcohol) and symptoms. He is known to have a small hiatal hernia, but this is not usually the cause of pain. It is an association with reflux. The symptoms would be more in keeping with an epigastric hernia which is a small defect in the midline of the upper abdomen through which deeper tissue can protrude, with symptoms being caused by pressure on the protruding tissue. Symptoms can be out of all proportion to the size of such a hernia. Unfortunately no such hernia has been demonstrated, but they can be very subtle. ... Re the lifting injury in January 1997: Mr Nassar is adamant that his symptoms were caused by a lifting injury in 1995, when he felt something 'give". I understand that the original symptoms were aggravated at the subsequent date. Mr Officer's letter of June 1996 does give some credence to this in that he describes the pain coming on after exertion. He says the symptoms had occurred over the past three months i.e. prior to June 1996, but the ultrasound referred to in the first paragraph of Mr Officer's letter was performed in March 1996, the indication on the request form being "pain deep to the xiphisternum for three months", which takes the symptom back to the end of 1995 at least. I enclose a copy of the ultrasound report for your records. In answer to your question, a lifting injury could cause the symptoms that are currently experienced by Mr Nassar, but examination and investigation have failed to define the injury. Could an epigastric hernia cause the ongoing pain in the absence of clinical evidence of bowel herniation? Epigastric hernias are small defects in the 7 midline of the upper abdomen, between the rectus muscles. They are often very subtle and virtually never contain bowel, unless they are extremely large. The usual content of such a hernia is fatty tissue which protrudes through from beneath the muscle layer at that point. The fat gets pinched by the muscles, causing symptoms that may be out of all proportion to the size of the hernia. Mr Nassar's pain is unusually intense for such a hernia, but he does describe a very clear cause and effect between physical exertion and the onset of pain which could fit with such a hernia." Finally there is the report from Dr A G Dawson, Corporate Medical Advisor with the Corporation, who has had the benefit of all reports that have been prepared by the various specialists on the appellant and his symptoms and he reports as follows: "... The only ACC claim which could possibly explain the present symptoms and incapacity is the one with an accident date of 9 January 1997. The report from Takanini Care Medical & Accident Centre dated 9 January 1997 records the history of "lifting heavy pipe felt epigastric pain. No GI symptoms". The diagnoses listed are "rectus abdomenus strain, ?? gastric hernia". The rectus abdomenus muscle is part of the anterior abdominal wall, and although it can be strained as a result of forceful contraction of the abdominal muscles during lifting it is nowhere near the location of a hiatus (gastric) hernia. The alternative diagnosis of hiatus hernia considered by the doctor on the day of the accident had already been demonstrated in a barium meal on 9 April 1996. However small sliding hiatus hernias are reasonably common and not invariably associated with symptoms. To accept cover ACC would need to accept that a pre-existing hernia had been exacerbated as a result of an injury to the diaphragm during lifting. 8 While it is apparent that substantial contraction of the abdominal muscles and diaphragm occur during heavy lifting to raise the intra abdominal pressure, it is also true that this maintains the diaphragm within its normal range of movement and a physical injury to the diaphragm as a result of a single episode of heavy lifting is not suggested by any of the doctors who have seen Mr Nassar. This includes Mr Bowker (Laparoscopic General Surgeon) who appears to have completed a "questionnaire about haitus hernia" who notes that "in most cases there is no recognised causative event". On the same questionnaire in response to the question "can a person get hiatus hernia from overstraining the stomach/diaphragm region by eg lifting a heavy object?" Mr Bowker answers "possibly". This is the opinion of a specialist surgeon, but the legal test is not whether this is possible, but whether it is - on the balance of probability - what has occurred in Mr Nassar's case. Mr Bowker in his letter dated 22 May 1998 acknowledges that investigations have shown a hiatus hernia but notes that treatment of this does not influence the symptoms. The CT scan shows a small oesophageal hiatus hernia, but this was entirely consistent with the findings at barium meal that predated the accident. I note that the CT scan showed no evidence of a diaphragmatic hernia - a term usually applied to ruptures of the diaphragm remote from the oesophagus and classically associated with far more severe injuries than lifting pipes. In addition it is difficult to accept that if medical treatment for hiatus hernia had not reduced symptoms then surgical treatment (a difficult procedure) would be appropriate in this case. Although the endoscopy after the lifting episode demonstrated moderate inflammation of the oesophagus, the stomach, and duodenum Mr Bowker's opinion is that the pain causing the majority of his symptoms is different. He fails to specify his reasons for this opinion, but more importantly he does not refer to the fact that Mr Nassar was referred for an upper abdomen ultrasound on 21 March 1996 with the stated indication of "pain deep to 9 xiphisternum for 3 months". This is not a typical description of hiatus hernia pain, and in arranging an ultrasound investigation (rather than an endoscopy or barium swallow) Mr Officer (surgeon) clearly did not consider heartburn/hiatus hernia to be the likely cause. My professional opinion is that the cause of this man's current symptoms is presently uncertain, but that ACC has taken all reasonable steps to acquire the information required to determine cover. However, despite endoscopy and CT scan investigations, there is still insufficient evidence to establish that the symptoms are the result of a personal injury caused by accident. Indeed in the presence of pre-existing unexplained pain the balance of probability is that his current symptoms are caused by the same problem - which clearly pre-dated his injury. It is to be noted that it was not until January 1998 that the appellant lodged a claim for cover in respect of stomach strain suffered in the lifting incident in August 1995. At the hearing before this Court Mr Nassar put forward the proposition that his present complaint was in fact an aggravation of his injury of August 1995, that the lifting incident of 1997 simply aggravated that condition, and the condition continues to be further aggravated or brought on by physical exertion. To further reinforce the view that the appellant's problems do stem from the 1995 accident, this Court heard evidence from a friend and workmate Mr Christopher Standring who gave evidence that he had known and worked with the appellant since May 1994 and that he noticed a difference in the appellant beginning in mid to late 1995 when he appeared uncomfortable after minor exertion and evidenced abdominal pain, whereas before he was 10 able to undergo vigorous physical exertion in the course of his work without any effects whatsoever. The evidence from Mr Sandring was confirmed by two other witnesses called by the appellant, a Mr Chamoun and Mr Haddad. All witnesses confirmed that prior to August 1995 the appellant was healthy, fit and active. The appellant's medical history makes it clear that if the cause of pain is a hiatus or epigastric hernia, that state of affairs existed before the accident of January 1997 and the appellant did show symptoms of injury, which he still displays today, well before the later lifting incident. The medical evidence cannot pin point the precise cause of his ongoing symptoms but equally it points against any new injury having occurred in that lifting incident, but rather it being a continuation of the injury he sustained in August 1995. The position is that the appellant lodged his claim after the January 1997 incident, no doubt intending that all matters could be dealt with under the umbrella of that claim, but the Corporation has earlier ruled that this could not be the case. Further, in the review decision, the Review Officer specifically noted that the only claim before him was the lifting incident of January 1997, the evidence was against that incident being the source of the present symptoms. This Court concurs with that view and it is possibly unfortunate that the claim lodged in January 1998 for the August 1995 lifting incident could not have been advanced subsequent to the review decision. Having considered all the medical evidence, I find that the appellant cannot establish on the balance of probabilities that the symptoms which he presently displays and which are the cause of his ongoing incapacity are as a consequence of personal injury by accident which occurred on 9 January 11 1997. The medical evidence is overwhelmingly in support of the fact that those symptoms, and the cause of them, predate that accident. This Court does not have jurisdiction to consider the claim in respect of the August 1995 accident in the context of this appeal. That will have to be considered by the Corporation and it should be so considered without delay. This Court directs that all the medical evidence which has been prepared for the purposes of this appeal, and earlier, be referred to the Corporation for consideration of the appellant's claim for cover under the Act stemming from the August 1995 lifting accident and for a primary decision in respect of that claim to be made. However, that direction does not alter the fact that the appeal in relation to the Corporation's decision on the claim lodged in January 1997 must be dismissed. DATED at WELLINGTON this 17 day of September 1998 deathe M J Beattie District Court Judge Nassar.doc(gm)