Khademnia v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND 2015] NZACC 17 ACR 090/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 151 OF THE ACT BETWEEN MANOUCHERHR KHADEMNIA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 27 January 2015 Appearances: Mr N Darke Advocate for appellant Ms Becroft Counsel for Respondent Judgment: 30 January 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] The issue before the Court is the correctness of a decision by the Accident Compensation Corporation ("The Corporation") dated 4 April 2002, suspending entitlements with respect to three covered lumbar sprain injuries suffered in September 2006, June 2007 and December 2007. [2] In addition the Appellant claimed cover for a gradual process back injury in December 2009. After moving through a number of standard processes the position was reached on 4 April 2002 where the corporation declined ongoing entitlements in relation to the 2006 and 2007 injuries, on the basis that the substantive cause of a continuing ongoing pain condition was degenerative change. [3] That decision was challenged on review and for the purposes of that review the Appellant obtained a report himself from Mr Don an Orthopaedics and Spine Surgeon. [4] Without going into the details which are well covered in the review decision the end point has been reached whereby both parties interpret differently the opinions in particular of Dr Strack an occupational medical consultant on the one hand (engaged by The Corporation) and on the other hand Mr Don. [5] The point at issue in the appeal is relatively narrow. It is common ground between the parties that the test as to whether under s 17(1) of the Act entitling the Corporation to suspend or cancel and entitlement "if it is now satisfied on the basis of the information in its possession that a claimant is entitled to continue to receive the entitlement", is per Ellwood v ACC (2007) NZAR20, that the Corporation must have "a sufficient basis before it is not satisfied that a claimant is entitled to continue to received the entitlement". And if the position is uncertain there is not a sufficient basis. [6] It is again common ground in this appeal that there must be a causal nexus between the covered injury and the condition of the claimant when the matter is before the Court or a reviewer that one is entitled to take into account the totality of the medical information available at that time, which in this case includes the report from Mr Don. [7] The key aspects that the Corporation rely on in meeting the test of whether or not they can be "satisfied" draw primarily on the report of Dr Strack who concluded: that while Mr Khademnia had suffered actual damage to his body it was "likely to be primarily degenerative in nature as opposed to injury related damage". That he did not believe that Mr Khademnia's chronic lower back pain problems have been caused by a specific event, but rather that when they occurred, such as when he was using a nail gun to put up framing, this "may well have triggered the onset of symptoms in a pre disposed spine" That set in the context of considerable statistical evidence to which he referred in particular an article by Hall and others "the spontaneous onset back pain - clinical degeneration pain" 1998, these conclusions were statistically consistent with his view. In summary he said "I am not of the opinion that Mr Khademnia's chronic non-specific lower back problems have been caused by a specific event. [8] Setting aside for the purposes of the decision a number of many other back ground medical reports this needs to be contrasted with the conclusions of Mr Don in his report of 3 August 2012 obtained by Mr Khademnia. After narrating the background from his examination of Mr Khademnia and referring to events described by Mr Khaemnia in, 2006 he clearly was of the view that there was some linkage between that activity and the symptoms displayed at examination. [9] In particular 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 resulted in damage to the disc" and further "therefore certainly the L4-5 annular tear could have resulted from this injury. [10] He went on to say "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. .." [11] A branch medical advisor (Di Anthony Burgess) at the Corporation noted that while he saw significant flaws in the proposition that the symptoms and the incapacity related to a specific injury event, when commenting on the views of Mr Don, he picked up a mistake which both Mr Darke and Ms Becroft accept for the purposes for the appeal is not determinative, namely where Mr Don noted the wrong 1 ..- year of onset in respect of ongoing back pain symptoms. It is clear that Mr Don in fact was talking about 2007 and not 2006. [12] So we have a situation where there is an apparent conflict between two experts. Mr Darke points out that Mr Don is a specialist orthopaedic surgeon, as contrasted with Mr Strack and, that he was the last specialist to have reviewed the totality of the situation and that he does leave open a strong possibility of a causal link between the incidents described to him and the symptoms that he saw. [13] My conclusion is that looking at the whole of the evidence and information now available with, on the one hand, an opinion with a very experienced spinal surgeon who says the injuries are consistent with the mechanisms of in particular, of the 3 October 2007 injury and that of a occupational medicine consultant that the condition is wholly or substantially due to degenerative changes there is just the very sort of conflict between experts referred to in the case in this Court of 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. [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 Darkes submission that the totality of the evidence before the Court does not meet the s 17 threshold and accordingly the decision of the reviewer is quashed and entitlements are to be restored from the date of suspension. Costs [16] The Appellant having been successful in his appeal there should be a order for costs and I invite, Mr Darke and Ms Becroft, to see if they can concur on this or otherwise file submissions for me to consider on that point. Judge A N MacLean District Court Judge