Khademnia v Accident Compensation Corporation (Suspension of Entitlements)

IN THE DISTRICT COURT AT AUCKLAND ITE KOTI-A-ROHE KI TAMAKI MAKAURAU [2019] NZACC 64 ACR 321/17 ACR 322/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 151 OF THE ACT BETWEEN MANOUCHEHR KHADEMNIA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 6 June 2019 Appearances: Mr M Darke for the appellant Ms F Becroft for the respondent Judgment: 25 June 2019 RESERVED JUDGMENT OF JUDGE C J MCGUIRE Section 117 - Cancellation or Suspension of Entitlement - Payment of Interest [1] There are two decisions of the Accident Compensation Corporation at issue namely: [a] A decision dated 30 January 2017 determining that interest was payable on a backdated amount of weekly compensation from January 2015 (ACR 321/17); and [b] A decision dated 16 February 2017 suspending the appellant's ongoing entitlements, including weekly compensation, on the basis that ongoing symptoms were no longer causally related to a personal injury suffered on 3 October 2007 (ACR 332/17). [2] The appellant's position is that interest should be paid from September 2008 and the decision to suspend entitlements in February 2017 was an abuse of process. This is because the District Court had previously determined the same issue in favour of the appellant and the evidence was insufficient for the Corporation to be satisfied as at February 2017 that the appellant was no longer entitled to ongoing compensation. [3] The Corporation's position is that the interest payment is correct. The evidence shows that the Corporation had all information necessary for the interest provision, no earlier than January 2015, and the 2017 suspension decision was correct based on specialist medical opinion provided by Mr Mills, orthopaedic surgeon, and that the previous appeal decision did not prevent the Corporation from making subsequent suspension decisions, for subsequent periods. Background [4] The appellant was born on 12 August 1966 in Iran and came to New Zealand in August 2004 as a Kurdish refugee. [5] He has cover for three back injuries sustained in September 2006, June 2007 and October 2007. The September 2006 Injury [6] An ACC injury claim form was lodged on 11 September 2006 for a lumbar sprain suffered on 5 September 2006. The June 2007 Injury [7] A further ACC injury claim form was lodged by Carrington Road Physiotherapy on 27 June 2007 regarding a lumbar sprain suffered on 15 June 2007 with the injury description: Working in workshop, lifting timber and hurt my back. [8] The claim was accepted, and the Corporation provided cover for a lumbar sprain. The October 2007 Injury [9] An ACC injury claim form was lodged on 17 December 2007 detailing a back injury suffered on 3 October 2007. The injury was sustained when the appellant was using a nail gun with his back in a twisted position. The claim was accepted, and the appellant received physiotherapy treatment. Gradual Process Claim [10] On 16 December 2009 a further claim was lodged by the appellant's doctor. The injury date was given as 18 November 2009 and the injury description was: Strained lower back while bending and doing building work (training as master builder). [11] The x-ray report of 19 January 2010 included the following: Indication: Chronic low back pain. Increased steadily in severity after injury 2007. Possibly has underlying spinal stenosis ... Findings: There are five lumbar-type vertebrae. There is loss of lumbar lordosis. Vertebral body and intervertebral disc height appears reasonably well preserved in the upper lumbar spine with moderate suspected disc height loss at 15-S1. There is suspected facet degenerative change at the lumbosacral junction without anterolisthesis or retrolisthesis. There may be distal anteroposterior reduced spinal canal diameter although this is a difficult radiological judgement. No fracture or destructive bone change is seen. Sacroiliac joints appear within normal limits. [12] On 30 March 2010 the Corporation declined the gradual process claim. Following a review being lodged the Corporation agreed to obtain a specialist opinion from Dr Strack, an occupational medicine specialist. [13] On 13 September 2010, Dr Strack concluded the appellant was suffering from chronic, non-specific lower back pain and multilevel lumbar spondylosis. His report also reviewed an MRI scan dated 3 September 2010 which noted: The lower three lumbar discs are abnormal demonstrating reduced height and signal. ... at the L4/5 level there is broad based bulging of the disc annulus with a pocket of fluid in keeping with an annular tear. ... at the L5/S1 level there is also diffuse annular bulge and a probable annular tear. ... at the L3/4 level there is diffuse bulging of the disc annulus with a focal disc protrusion canal and foraminal narrowing. [14] Under the heading "Comment" the report said: Multilevel disc disease with annular tears. Foraminal narrowing at both L4/5 and L5/S1. No spinal canal stenosis is evident. ... [15] The Corporation subsequently confirmed its decision declining cover for a gradual process injury. [16] In July 2011 the appellant's general practitioner requested urgent consideration of a rehabilitation programme in relation to the appellant's back. He referenced all three covered physical injuries. [17] The file was reviewed by a Branch Medical Advisor who noted Dr Strack's opinion and the results of the 2010 MRI scan. The Branch Medical Advisor was not convinced of a causal nexus between the ongoing symptoms and the covered injuries. However, he recommended a medical case review by Dr Gordan, an orthopaedic surgeon. In his report of 17 October 2012, Dr Gordan noted the accidents in June and October 2007 but did not refer to the accident in September 2006. He stated: Prior to 2007 Manouchehr had no problems with his back and his previous employment was working as a jeweller in Persia and working as a robot machine operator in Japan. [18] He continued: Manouchehr has pain in his back which is out of proportion to the pathology which exists in his back. He does have small annular tears at L3/4 and L4/5 and has quite significant degenerative change at the L5/S1 level and in my opinion this man's back is not suited to the building trade. [19] The file was then reviewed by the ACC Branch Medical Advisor who reported on 30 March 2012. In essence, Dr Burgess agrees with Dr Strack's comments on causation and concluded: I think therefore the medical evidence does not support the client's current pathology and symptoms as being caused by a specific personal injury nor a gradual process condition. [20] On 4 April 2012 the Corporation issued a decision suspending ongoing entitlements in relation to the injuries of September 2006 and June 2007. The decision reads: ACC has considered all of the medical evidence in its possession, along with the circumstances of your case, and based on this information has concluded that your current condition is unrelated to the injury for which you were granted cover. The substantive cause of your ongoing condition is degenerative changes. [21] The appellant filed an application for review and obtained a report from Mr Don, orthopaedic surgeon, dated 31 August 2012. Mr Don specifically identified the September accident and noted that the appellant had aggravated his back thereafter. He concluded that the ongoing problems were injury related stating that both the degenerative disease and the L4/5 annular tear and to a lesser extent at 13/4 were contributing to the incapacity. [22] Mr Don's report was reviewed by Dr Burgess on 31 August 2012, who disagreed with Mr Don's conclusions. He concluded that degenerative disc disease was the most substantive pathology present. He also noted that the appellant had returned to work until 2009 and that Mr Don admitted he could not account for the changes identified by MRI based on the reported history. In a review decision dated 4 December 2012, the Reviewer, Mr Locke, concluded that the Corporation had sufficient evidence to suspend the appellant's entitlements and to conclude that his incapacity was not related to covered injuries. The appellant appealed against that review decision. His appeal was successful, Judge Maclean saying: [14] On balance therefore I accept that Mr Don's report being the most recent, from a specialist in the particular field raises sufficient doubt about any conclusion that some non covered condition is now the exclusive or near exclusive cause of the ongoing incapacity. [15] In other words I accept Mr Darke's submission that the totality of the evidence before the Court does not meet the s 117 threshold and accordingly the decision of the Reviewer is quashed and entitlements are to be restored from the date of suspension. [23] On 5 May 2015 Mr Darke on behalf of the appellant requested weekly compensation. [24] On 27 May 2015 the Corporation responded seeking further information. An ACC 18 medical certificate was subsequently lodged certifying the appellant was unfit to work from 28 April 2015 in relation to the October 2007 injury. An additional retrospective medical certificate dated 25 June 2015 indicated that the appellant had been incapacitated between 19 October 2010 and July 2015. 25] On 8 July 2015, a further MRI scan was undertaken, which confirmed pathologies at L3/4, L4/5 and L5/S1. It noted that there had been some mild improvement in the L5/S1 level, compared with the last scan on 3 September 2010 but no significant changes elsewhere. On 16 July 2015, Branch Medical Advisor, Dr Happy, reviewed the file and suggested obtaining an up to date orthopaedic opinion on the cause of incapacity and appropriate treatment. [26] In July 2015 the Corporation also approved physiotherapy treatment. [27] On 8 July 2015 what is described in the report as a "high tech MRI lumbar spine" was carried out and reported on by Dr Richard Gee, diagnostic radiologist. His opinion is summarised as follows: 1. L3/4 level - mild vertebral canal stenosis. 2 . L4/5 level - posterior annular tear. 3. L5/S1 level - right sided modic endplate signal changes (mild to moderate). This has mildly improved compared to 3/9/2010. No significant change elsewhere. [28] The appellant was seen by Dr Malloy, musculoskeletal medicine specialist, on 20 July 2015. The MRI images were reviewed and discussed. The doctor's report then says: These revealed modic 1 changes, with irregular vertebral endplates and bone marrow oedema adjacent to these at the L5/S1 level. This is very likely to be causing pain. There was posterocentral annular tear at the L4/5 level which was also a very likely pain generator. There was also moderately severe central canal stenosis at L3/4 level, with complete loss of cerebrospinal fluid at this level, caused by a broad based disc bulge and to a lesser extent, ligamentum flavum hypertrophy. There was some increased joint fluid at L3/4 level bilaterally, but no bone marrow oedema or soft tissue oedema associated with the zygapophyseal joints. [29] Trans-foraminal injection of a steroid was discussed for pain relief and Dr Malloy recorded that he would apply to the Corporation for funding for this. He also stated: Surgical assessment was indicated on the basis of central canal stenosis, and I asked him to see Mr Don for this. 30] Mr Don saw the appellant on 13 October 2015 and his report noted the following: He has had a more recent MRI scan taken at SRG on 08.07.2015. This demonstrates again three levels of disc desiccation at L3/4, L4/5, and 15/S1 with collapse of the disc at L5/S1 and associated endplate changes. The endplate changes are located on the right side. He has some minor stenosis but no other significant nerve root compression. [31] Under "Diagnosis and Treatment Plan" he said: I had a long talk with Mano today and I understand he is waiting for a trans- foraminal injection and I believe this would be a reasonable first approach. I don't believe there is a surgical solution which would provide him with significant improvement in his symptoms. I have discussed with him that if he fails to have any improvement from the injections then I think the final option will be an integrated pain approach. I have explained this to him and he is happy with this approach [32] On 1 April 2016, the Corporation issued a decision declining weekly compensation which included the following: ACC has considered all the information available and finds that you are not entitled to weekly compensation. We have considered all the information and believe that this information shows a causal nexus in particular with your accident on 3 October 2007. Your financial information shows that you are not an earner on 3 October 2007. As a result, ACC is unable to pay you weekly compensation. [33] On 26 April 2016 the appellant applied for a review of the Corporation's decision. Because the review was not set down within the statutory timeframes, there was a deemed decision in the appellant's favour pursuant to s 146 of the Act. In addition to calculating the appellant's entitlement to weekly compensation the Corporation arranged for him to be assessed by Mr Mills, and a referral for pain management assistance was also made. 34] On 14 December 2016 the Corporation issued a decision in relation to backdated weekly compensation. It calculated that during the period from 9 September 2008 to 8 August 2016 the appellant was entitled to backdated compensation amounting to $176,708.57. From this amount was to be deducted the amount that the appellant received from WINZ during that period leaving a balance of approximately $83,000. [35] Mr Mills was provided with medical records going back to 2007 and after meeting with the appellant provided his report dated 12 January 2017. [36] Under the heading "Comment" at page 7 Mr Mills stated: Accepting the history of Mr Khademnia's lower back pain as recorded by Dr Strack and Dr Malloy (and this history was as I have already noted confirmed by Mr Khademnia at my consultation on 1/01/2017), it appears certain that the indexed episode of low back pain of 03/01/2007 comprised a lumbar sprain, and this sprain injury resolved relative rapidly with simple conservative treatment. It is also probable that subsequent episodes of low back pain which were recorded as occurring in 2008 and 2010 were not clearly related to personal injury by accident. Certainly to my direct enquiry at examination on 1 1/01/2017, Mr Khademnia said his lower back in 2010 "just came on". It is my opinion therefore that Mr Khademnia's current persistent low back pain is unlikely to be causally related to the covered injury dated 03/10/2007. I observe the repeat MR scans of Mr Khademnia's lumbar spine have demonstrated non specific findings but no serious pathology, with disc degeneration and associated changes including disc height collapse, annular tears (fissures) and modic changes type 1 and 2. Multiple studies have shown that these MR changes occur commonly in patients whether or not they are symptomatic. It is clear that psychosocial factors strongly predict future disability from low back pain. Risk factors which have been identified as contributing to the development of disabling persistent low back pain include: Psychological stress. Job dissatisfaction. Disputed compensation issues, and Fear avoidance. It is beyond my field of expertise as an orthopaedic surgeon however to comment in any detail on psychosocial issues and the relation of psychosocial matters to Mr Khademnia's complaint of persistent low back pain. [37] At page 8 of his report he stated: It is clear that Mr Khademnia's current low back pain is not causally related to personal injury by accident as his current low back pain commenced in 2010 when Mr Khademnia woke from sleep with "significant low back pain" Imaging reveals disc degenerative disease of the lumbar spine with disc height collapse notably at L5/S1, disc signal changes at L3/L4, L4/LS and L5/S1, annular tears (fissures) and modic changes type 1 and 2. These findings however are common in cross sectional studies of asymptomatic subjects. The follow up studies have found also no association between MRI findings for a patient without symptoms and the patient's future development of low back pain. Psychosocial factors have been found to be more predictive of serious low back illness than morphologic characteristics on MRI. [38] The Corporation's weekly compensation panel considered an interest application. [39] In a memorandum of 18 January 2017, it recommended that the Court of Appeal decision in Miller did not apply to this case as weekly compensation was not suspended. ' However, it considered there had been a service failure which resulted in a significant delay in the client receiving his entitlement. [40] So far as the 15 June 2007 accident was concerned it said that: The client could be considered an earner in relation to his 15 June 2007 accident, an accident which will be a contributing cause to his incapacity. In this regard though it can't be confirmed that the client was in receipt of earnings immediately prior to 15 June 2007. Equally given the time elapsed it would likely not be possible for ACC to prove this wasn't the case. [41] The Panel subsequently reviewed the matter and agreed that there was sufficient evidence to confirm earner status in relation to the 3 October 2007 accident. [42] It considered that the Miller case only applied to cases where there was a suspension, which was not applicable in this case. Notwithstanding, the Panel agreed that the Corporation should consider paying interest on the backdated payment. The applicable "all information" date was determined as 30 January 2015, the date the Corporation received the District Court judgment to reinstate entitlements. Accident Compensation Corporation v Miller [2013] 3 NZLR 312 [43] On 30 January 2017 the Corporation issued a decision advising the appellant that he was eligible for interest on his backdated weekly compensation in the amount of $6,934.97. [44] However, based on the 12 January 2017 report of Mr Mills, the Corporation issued a decision on 16 February 2017 advising the appellant that it was suspending entitlements on the October 2007 claim, based on Mr Mills' report. The letter included the following: The medical report stated that the injury that occurred is a lumbar sprain and this sprain has now resolved. The cause of your ongoing low back pain is due to disc degenerative disease and this condition is not due to your injury. [45] On review, in respect of the suspension decision, the Reviewer, Mr Woodhouse did not consider that the District Court judgment determined that the appellant had cover for annular tears, rather there had been insufficient evidence for the Corporation to be satisfied that the appellant was no longer entitled. Mr Woodhouse preferred the reports of Mr Mills and Dr Strack. [46] The review regarding interest was dismissed on the basis that the Corporation was first in receipt of all information necessary to determine an entitlement to weekly compensation in late 2016 and that the Corporation's decision in this regard was generous. The Appellant's Submissions [47] Mr Darke traversed the history of this case and his anchor point is the report of Mr Don, specialist orthopaedic surgeon, and the conclusions reached by Judge MacLean in his judgment of 30 January 2015 where the Judge said in respect of conflict between experts, in this case Dr Strack and Mr Don: There is just the very sort of conflict between experts referred to in the case in this Court in Bonsor (196/10), where there is evidence of degeneration but also credible evidence of a causal link between the mechanism of injuries particularly in the 3 October 2007 injury and the present symptoms and conditions. [48] Judge MacLean continued: 14] On balance therefore I accept that Mr Don's report, being the most recent, from a specialist in the particular field raises sufficient doubt about any conclusion that some non covered condition is now the exclusive or near exclusive cause of the ongoing incapacity. [49] Mr Darke referred to Dr Malloy's report of 20 July 2015 as supporting Mr Don's report of 3 August 2012. Dr Malloy referred to "a posterocentral annular tear at the level L4/5 level which was also a very likely pain generator". He also found support for Mr Don's opinion in Mr Mills' report of 12 January 2017. This however must be tempered by Mr Mills' comment under the heading "Summary and Assessment": The history of onset and progress of Mr Khademnia's low back symptoms as derived from the file material is somewhat bewildering in its complexity; apparent inconsistencies abound. [50] Mr Darke submitted that the statement in the case manager's letter of 16 February 2017, where he said "the medical report stated that the injury had occurred was a lumbar sprain and this sprain has now resolved" was incorrect. [51] Mr Darke submitted that s 117 is not available to the Corporation and that recourse to it is an abuse of power. Mr Darke said that until the Corporation can show a distinct change in circumstances it cannot use s 117 to disentitle a claimant. 52] Mr Darke said that even if's 117 is available there is simply not the evidence in this case to apply it. [53] On the question of interest Mr Darke said that in 2008 the appellant was granted cover, but it was not explained to him what his entitlements were. [54] Mr Darke referred to s 50 and the requirement by the Corporation to: i) provide information about the entitlements to which it considers the claimant may be entitled; and (ii) facilitate the claimant's access to those entitlements. If it accepts that, the person has cover. [55] Mr Darke referred to the Court of Appeal decision in ACC v Kearney where at the Court said: 2 [32] Accident victims could not be expected to mind read or to search through the immensely complication legislation themselves. Parliament would not have countenanced a regime whereby the Corporation sat by, requested nothing, and then later attempted to take advantage of the qualification to its obligation to pay interest on late payments. The Respondent's Submissions 56] Ms Becroft said that the appellant did not apply for weekly compensation prior to the District Court decision. As she pointed out, an ACC claim is lodged by a GP, and in this case back on 26 June 2007 the claim form answered "no" to the question of whether the appellant was in paid employment. Ms Becroft referred to s 114 and submitted the Corporation has been generous in paying interest from the date of the District Court decision. She contrasted this to the situation in Kearney, where the Corporation had all the information and unlawfully suspended entitlement after Mr Kearney had been receiving it from 1985 to 1991. [57] Ms Becroft referred to Ellwood v Accident Compensation Corporation where in considering s 117 the Court said the Corporation must have a sufficient basis before it is not satisfied that a claimant is entitled to continue to receive the entitlement. 3 Judge MacLean ultimately found that the totality of the evidence before the Court did not meet the s 1 17 threshold to suspend entitlements. [58] Ms Becroft referred to Mr Mills' report describing it as most thorough and that this sets it apart from the other reports. She referred to Dr Happy's opinion of 2 February 2017 in which he agrees with Mr Mills' conclusions. [59] She referred to Mr Don's report, and in particular the words that Mr Don uses where he said: After reviewing his scans and his history certainly it is likely that the injury in 2007 was a significant cause of the annular tear at L4-5 resulting in damage to the disc. ... therefore certainly the L4-5 annular tear could have resulted from this injury. W N Accident Compensation Corporation v Kearney [2010] NZCA 327. Ellwood v Accident Compensation Corporation [2007] NZAR 205 (HC). She submitted that Mr Mills' report should be preferred. Decision [60] On the question of the payment of interest on arrears of weekly compensation, s 114(1) of the Act provides that interest is payable on arrears of weekly compensation where "the Corporation has not made the payment within one month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment". In Barnett it says: 4 [38] The determination of what constitutes "all information necessary" must depend on the facts of each case. ... without necessarily accepting the list is exclusive in every case, I accept the submissions on behalf of the Corporation that in the particular case it was necessary to determine: a) That there had been an incapacity due to personal injury; (b) The personal injury was caused by an accident; (c) The date of the accident; (d) That Mr Barnett was an earner during the relevant period; and (e) Mr Barnett's relevant earnings during the period. [39] The date upon which the Corporation had all information necessary would not usually be the date of a review or appeal decision. It is the date on which the Corporation was in possession of the necessary information to make the same decision as the Reviewer or the Appeal Court has made. ... [61] Although in the present case the personal injury concerned occurred on 3 October 2007 there were various developments from 2009 to 2012 including the declining of cover for a gradual process claim in 2010. [62] The Corporation's starting point is that the appellant had not been receiving weekly compensation and no application for entitlement been lodged. Furthermore, there was uncertainty over causation and the Corporation did not have information regarding the appellant's earner status or his earnings immediately prior to incapacity. Barnett v Accident Compensation Corporation [2002] NZHC 1305, at [38]. [63] Mr Darke relied on the dicta in Kearney where the Court of Appeal found the Corporation "sat by, requested nothing, and then later attempted to take advantage of the qualification to its obligation to pay interest on late payments"." 64] While the sort of criticism levelled at the Corporation in Kearney's case is not due here, suffice to say the backdating of interest now, simply has the result of putting the appellant in the equivalent financial position he would have been in had all steps, on both sides, been taken in a timely fashion. [65] As to the question of reconsidering the appellant's ongoing entitlements, I do not accept Mr Darke's submission that in doing so the Corporation has abused its power. Section 117 is plain on its face that the Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that the claimant is entitled to continue to receive the entitlement. I conclude that following Judge Maclean's decision on 27 January 2015 the steps that have been taken by way of further medical assessments and reports were proper ones, including the MRI scan on 8 July 2015; a review of the file by Dr Happy on 16 July 2015; the approval of physiotherapy treatment in July 2015; an assessment by Dr Malloy; the approval of pain management in August 2015; a further report by Mr Don on 13 October 2015; the report of Mr Mills' on 12 January 2017; and the review by Dr Happy. It was after these steps had been taken that the decision was made to suspend entitlements. As counsel acknowledge, the decision in Furst is relevant. " Judge Barber in that case referring to Ellwood said: ' [13] ACC must have a sufficient basis before it is not satisfied that a claimant is entitled to continue to receive entitlement. If the position if uncertain, then there is not a sufficient basis. The not satisfied test is not met in these circumstances. Ellwood v Accident Compensation Corporation [2007] NZAR 205. The "not satisfied" test requires a positive decision equivalent to being satisfied that there are no right to entitlements. This test will not be met where the evidence is in the balance or unclear. Milner v Accident Compensation Corporation (187/2007). [2010] NZCA 327 at [32]. Furst v Accident Compensation Corporation [2011] NZACC 379 (DC). At [13]. [66] In this case we have Mr Don's report of 3 August 2012 where he said that the appellant has degenerative disc disease at L5/S1 as well as a significant annular tear at L4/5 and to a lesser extent at L3/4. He also said: After reviewing his scans and his history certainly it seems likely that the injury in 2007 was a significant cause of the annular tear at L4-5 resulting in damage to the disc. I cannot account for all the findings on his scan being attributable solely to the injury including L5/SI and the changes at L3-4. Certainly given the mechanism of injury of loading the spine twisting while using a nail gun would be consistent with injuring the annulus of the disc. Therefore certainly the L4-5 annular tear could have resulted from this injury. ... I don't believe his condition is wholly due to degeneration and certainly some of his ongoing pain and discomfort relates to the annular tear at L4-5 which has led to some of his incapacity and ongoing back pain. Certainly the accident in 2007 appears to have caused the onset of this ongoing chronic pain which he denied had any history prior to the accident. [67] This is to be compared with what is contained in Mr Mills' report where at page 7 under the heading "Comment" he said: It appears certain that the indexed episode of low back pain of 03/10/2007 comprised a lumbar sprain, and his sprain injury resolved relatively rapidly with simple conservative treatment. It is also probable that subsequent episodes of low back pain which were recorded as occurring in 2008 and 2010 were not clearly related to personal injury by accident. Certainly to my direct enquiry at examination on 1 1/01/2017, Mr Khademnia said that his low back in 2010 "just came on". It is my opinion therefore that Mr Khademnia's present persistent low back pain is unlikely to be causally related to the covered injury dated 03/10/2007. [68] Mr Mills also said earlier in his report, under the heading "Summary and Assessment": The history of onset and progress of Mr Khademnia's low back symptoms as derived from the file material is somewhat bewildering in its complexity; apparent inconsistencies abound. For example Mr Khademnia is stated to have strained his low back on 18/11/2009 while bending down doing building work, as recorded in the claim form UW27383 completed by Dr Wilcox on 1 1 December 2009. Later Dr Wilcox states in the "covered questionnaire" dated 05/01/2010 that Mr Khademnia was working only until August 2008 and that Mr Khademnia stopped work in August 2008. [69] Also in his report at page 8 Mr Mills said: It is clear that Mr Khademnia's current low back pain is not causally related to personal injury by accident as his current low back pain commenced in 2010 when Mr Khademnia woke from sleep with significant low back pain. Imaging reveals disc degenerative disease of the lumbar spine with disc height collapse notably at L4/SI, disc signal changes at L3/14, L4/L5 and L5/S1, annular tears (fissures) and modic changes type 1 and 2. These finding however are common in cross sectional studies of asymptomatic subjects. Follow up studies have found also no association between MRI findings for a patient without symptoms and the patient's future development of low back pain. Psychosocial factors have been found to be more predictive of serious low back illness than morphological characteristics on MRI. [70] It follows from what I have referred to that unanswered questions abound in this case and the effluxion of time now prevents their being answered, from how the appellant could awake from sleep with "significant low back pain", to the "bewildering" complexity of the history of onset. There is also the reference to psychosocial factors which for obvious understandable reasons have not been explored. [71] The injuries in question arose in the context of the appellant's vocational retraining after his arrival in this country. Prior to his arrival he has worked as a jeweller, and in Japan, in work that did not involve the physical exertions that are part and parcel of his retraining in this country as a builder. I have no reason therefore to doubt that the ACC claims made in 2006 and twice in 2007, whilst training as a builder, were proper ones. [72] I note also that unrelated to this case, the clinicians have noted he has tricompartmental osteoarthritis in his left knee. [73] Considering the totality of the appellant's history, I conclude that throughout the series of consultations, he has endeavoured to cooperate fully in the diagnostic process. Furthermore, although the statement by the appellant to Mr Mills that his back pain "just came on" is rightly regarded with some puzzlement, I conclude that it was a statement of what he honestly believed happened. [74] As is almost inevitably the case, especially with the effluxion of time, and the vagaries of memory, the reporting may at times be haphazard and contain errors. I contrast this case, however, from those where it becomes clear that the claimant is malingering to obtain or continue entitlement. [75] The further factor that intrudes with age is degeneration unrelated to the original injury. [76] Therefore, the conclusion that I come to is that in terms of Furst's case the position is uncertain, and I cannot be satisfied on all the information before me that there is no right to entitlements. [77] The respondent's decision of 16 February 2017 to suspend entitlements is set aside and the appellant's decision of 30 January 2017 regarding interest is also set aside with interest to be paid from 9 September 2008. It follows that the review decisions dated 13 September 2017 namely 5189592 and 5246589 are set aside. [78] Accordingly, the appeal is allowed and the Corporation's application to suspend or cancel the appellant's entitlements is refused. [79] Both counsel are given leave to file memoranda as to costs should they not be agreed. Judge C J McGuire District Court Judge Solicitors: Medical Law, Auckland for the respondent ACR 321-17 ACR 322-17-Kahademnia (003)