Carter v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 23 /2009 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN MARGARET CARTER Appellant (Appeal No. AI 397/06) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING: at WELLINGTON on 12 February 2009 APPEARANCES: M C Kavanagh, Counsel for Appellant. Ms E J Shane, Counsel for Respondent. RESERVED DECISION OF JUDGE J CADENHEAD THE ISSUE [1] The issue in this appeal is whether the respondent was correct to suspend Mrs Carter's entitlements on the basis that her incapacity is no longer the result of her covered personal injury. BACKGROUND OF FACTS [2] I have substantially followed the submissions of the respondent in setting out the background of facts and early medical evidence and history. I:JUDICIAL\CADENHA\ACC\ Reserved decision M Carter 397/06 (3] On 23 September 1991, Mrs Carter fell down some stairs, landing on her buttocks and twisting her left leg underneath her. Mrs Carter did not seek medical help immediately and attended work, as usual, that evening. In November 1991, Mrs Carter consulted her GP regarding pain in her lower back. Her GP recommended a period of time off work, and provided a medical certificate for this purpose. Mrs Carter has not returned to work since that time. EARLY MEDICAL EVIDENCE AND HISTORY [4] Prior to her accident, Mrs Carter says she had neck problems, but never low back problems. Mrs Carter believes that, over the years prior to her accident, she may have had twinges of low back pain with heavy lifting. [5] Following her accident in 1991, an early report by Mr Clanachan (4 December 1991) noted: "There is a spondylolisthesis at the LS level with approximately 5mm forward slipping of LS on SI. The pars defects are not shown particularly well in the oblique views, and there is sclerosis laterally suggesting this is long standing. A little narrowing of the L5/SI disc space is suspected, minor osteophytes are shown here and also in relation to the L3/4 and 4/5 disc spaces where there is no evidence of narrowing. The sacroiliac joints appear normal." 6] Since her accident, Mrs Carter has had many medical assessments. In the following years, medical reports have been requested by ACC from time to time to establish Mrs Carter's continuing entitlement to weekly compensation and home help. [7] Specialist reports by several orthopaedic surgeons between 1992 and 2000 make the following observations: "Mrs Carter stressed a pre-existing lumbo-sacral listhesis with par defects, and a degree of lumbar degenerative change, precipitating symptoms in an area that had been previously asymptomatic. " (Mr Allen, Orthopaedic Surgeon, 25 May 2000); "...Mrs Carter's lumbar spine when she fell on 23 September 1991 was not normal... the presence of a lumbosacral spondylolisthesis or defective linkage between the lower most lumbar vertebra and the sacrum antedated this fall... " (Mr Hooker, Orthopaedic Surgeon, 6 November 1992); "It could almost be argued that she [Mrs Carter] is now in the grips of chronic pain syndrome and hence her failure to respond to any treatment." (Mr Jackson, Orthopaedic Surgeon, 14 February 1997). 2 [8] ACC reviewed Mrs Carter's continuing entitlement to weekly compensation in June 2000, following the receipt of Mr Allen's report of 25 May 2000. ACC determined that Mrs Carter was no longer entitled to receive weekly compensation and home help as it considered her 1991 injury was no longer causative of her current symptoms. Mrs Carter was informed of ACC's decision to suspend her entitlements on 22 June 2000. 9] Mrs Carter subsequently obtained a medical report from Mr Doube, consultant rheumatologist, on 29 August 2000. Mr Doube's opinion was that Mrs Carter's current symptoms were caused by her fall in 1991. Mr Doube also stated that Mrs Carter's "description of the pain is consistent with mechanical pain, the underlying cause we do not know." [10] Mrs Carter was also examined by Mr Grayson, orthopaedic consultant, on 14 September 2000. Mr Grayson provided his medical opinion to ACC on 26 September 2000. [11] Mr Grayson reviewed x-rays of Mrs Carter's spine taken since 4 December 1991 and noted the presence of spondylolisthesis at the L5 level, some narrowing of the associated L5/S1 inter vertebral disc space indicative of degenerative changes, and minimal disc degenerative changes at the L2/3, L3/4 and L4/5 levels. At that time, Mr Grayson did not agree that Mrs Carter's symptoms were largely accounted for by multi-level degenerative changes. [12] Following consideration of Mr Doube's medical report and Mr Grayson's medical report, ACC decided to reverse its decision. Mrs Carter was informed by ACC on 13 October 2000 that her entitlements would be reinstated and backdated. MR HADLOW'S REPORT, 28 JUNE 2004 [13] In June 2004, ACC undertook a further review of Mrs Carter's continuing entitlements to weekly compensation. Mr Hadlow, orthopaedic surgeon, was asked by ACC to provide his opinion on whether Mrs Carter's symptoms were largely accounted for by multi-level degenerative changes. Mr Hadlow examined Mrs Carter and the earlier medical evidence, providing a report on 28 June 2004. [14] Mr Hadlow's diagnosis was that Mrs Carter had chronic pain syndrome and "temporary aggravation lumbo-sacral spondylolisthesis." Mr Hadlow stated in his report that : 3 'It is apparent that Mrs Carter had an asymptomatic pre-existing spondylolisthesis with laminal defects prior to the injury of 12.9.91. Unfortunately unwise early attempts to resume work prevented the normal spontaneous settling down of such a condition, leading eventually to chronic embedded pain or pain, or chronic pain syndrome with associated abnormal illness behaviour... It is not considered that Mrs Carter is suffering from the physical results of an injury in 1991, but that she is suffering from severe chronic pain syndrome and abnormal illness behaviour which combine to markedly limit her life..." [15] Mr Hadlow concluded his report by stating that he considered the physical effects of the injury Mrs Carter suffered in 1991 were well spent and that Mrs Carter's current physical disability was not the result of a specific accident. [16] ACC requested a further medical report from Mr Hadlow in early 2006. Mr Hadlow provided his medical report to ACC on 15 March 2006. Mr Hadlow confirmed his diagnosis of Mrs Carter's current condition as "chronic pain syndrome" and further diagnosed: '[plast aggravation lumbo-sacral spondylolisthesis with the effects now well spent. Mrs Carter developed pain from a previously asymptomatic pre-existing spondylolisthesis in a fall on 23.9.91. Such an aggravation would normally have settled in 6 months. Unfortunately on this occasion chronic pain syndrome or abnormal illness behaviour developed and as noted there has been non alteration in the symptomology over a 14 year period with gradual worsening of the perceived pain without any evidence of physical or musculo-skeletal deterioration of significance... In my opinion Mrs Carter's current incapacity is note [sic] due to any physical injury of 23.9.91..." [17] ACC's occupational physician, Mr Monigatti, was asked by ACC to provide his comment on the findings in Mr Hadlow's reports. In a memorandum to the ACC case manager, dated 13 April 2006, Mr Monigatti stated that: "In 2000, the Corporation sought an opinion from Mr Allen as to the cause of the ongoing symptoms and incapacity. In Mr Allen's view it was mechanical pain arising from the stirred-up spondylolisthesis. ACC suspended entitlements but restored them on being persuaded by Mrs Carter's medical advocates that the pain was the covered injury. The back-down was unfortunate. . When an accident stirs up a pre-existing condition without creating something separate and distinct from it, the association is one of aggravation rather than causation. Aggravation is not enough to establish entitlement." [18] ACC then sought further clarification from Mr Hadlow to determine whether Mr Hadlow considered that Mrs Carter's disability was due exclusively to her perceived pain and not to any structural musculo-skeletal disability arising from the injury she suffered in 1991. [19] In a report of 24 April 2006, Dr Hadlow confirmed that, in his opinion, Mrs Carter's disability was "due exclusively to her perceived pain and not to any structural musculo-skeletal disability arising from the injury she suffered in 1991." [20] Mr Monigatti was again asked by ACC to comment on Mr Hadlow's most recent report in light of the medical evidence to date. [21] Mr Monigatti provided his opinion on 17 May 2006, as follows: "If Mrs Carter's chronic pain syndrome had evolved from the personal injury of back strain suffered in the 1991 accident she would have entitlement for its disabling effects for as long as they persisted. But in the expert opinions of Mr Allen and Mr Hadlow, the pain syndrome arose from her spondylolisthesis, a developmental disorder. The pain is secondary to personal injury but one that was neither caused by the fall nor worsened by it in the mechanical sense, as by increasing the slippage. All the accident did was to render the pre-existing condition painful, which is aggravation." (22] On the basis of this information, ACC was satisfied that Mrs Carter was not entitled to receive ongoing entitlements, as her current condition was no longer the result of the personal injury suffered in 1991. ACC wrote to Mrs Carter on 23 May 2006, informing her of its decision to suspend her entitlement to weekly compensation and home help. Mrs Carter immediately sought a review of ACC's decision. 23] In support of her application to review ACC's decision, Mrs Carter was examined by, and obtained medical opinions from, Mr Doube, consultant rheumatologist, and Mr Hancock, pain specialist. Dr Hancock wrote a report dated 16 June 2006 that he had administered a block over her leg at L5-S1 and S1-S2 paraspinos sites which resulted in a clear reduction of her pain on flexion, deflexion and right flexion. He felt this was evidence against a chronic pain syndrome. He also stated that after his consultation Mrs Carter called stating she had had significant improvement with an injection which 'proved' a biological aspect of her pain, opposed to a psychosocial aspect. He was of the opinion that her ongoing symptoms were still causally connected to her injury in 1991. (24] Dr Doube produced a report dated 22 June 2006 and stated she had localised tenderness in her lower back with restriction of range of movement and that these were both features of local musculoskeletal dysfunction. [25] Dr Monigatti reviewed these two reports and stated neither of these opinions changed his opinion. [26] A review was held in July 2006 and concluded in October 2006. The reviewer found in a decision of 16 October 2006 that Mrs Carter had a chronic pain syndrome caused by her pre-existing spondylolisthesis and therefore was not entitled to ongoing ACC entitlements. THE REVIEWER'S DECISION [27] In a decision dated 16 October 2006, the reviewer dismissed Mrs Carter's application, finding that Mrs Carter could not prove, on the balance of probabilities, that her present symptoms were directly related to her covered injury of 1991. FURTHER MEDICAL EVIDENCE [28] Following the review decision, ACC received and considered a report by Dr Newburn, consultant psychiatrist, obtained by Mrs Carter. 29] Dr Newburn diagnosed Mrs Carter as having a "[plain disorder associated with both psychological factors (depressive symptoms) and a general medical condition. " Dr Newburn's opinion was that the pain disorder "... had its origin in the injuring event of 23 September 1991." [30] Dr Newburn's report did not persuade ACC to change their view that Mrs Carter's entitlements ought to be suspended. THE STATUTORY SCHEME [31] Mrs Carter received cover for her 1991 injury under the Accident Compensation Act 1982 ("the 1982 Act"). Section 2 of the 1982 Act defines personal injury by accident as including the physical and mental consequences of any such injury or of the accident. Personal injury by accident as defined under section 2 does not, however, include damage to the body or mind caused exclusively by disease, infection, or the ageing process. 6 [32]. Mrs Carter's entitlements could only be properly suspended if her ongoing incapacity was caused exclusively by disease, infection, or the ageing process. Mrs Carter only needs to prove that 1% of her ongoing incapacity is a consequence of her injury or of the accident for her entitlements to be reinstated. [33] In the High Court case of Ellwood v ACC [Unreported] HC Wellington 12 September 2006; 18 December 2006, Mallon J., the following comments were made (at para 64): ... That said, the ACC must make reasonable decisions. In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. Mr Beck's proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage [34] Ellwood was discussing the suspension of entitlements in relation to s1 16 of the Accident Insurance Act 1998. Mrs Carter's entitlements were suspended under $117 of the Injury Prevention, Rehabilitation and Compensation Act 2001, which is the equivalent section to s1 16 and sets out the same test. The test in Ellwood must be applied here. The question to be asked is whether there is a sufficient basis on which entitlements should be suspended? [35] In the case of Thirring v ACC (135/2008), the claimant also had a chronic pain syndrome arising from physical injuries. Her entitlements had been suspended under $1 17 of the Injury Prevention, Rehabilitation and Compensation Act 2001 on the basis that her incapacity was no longer caused by her covered injuries. In allowing the appeal, Judge Beattie said, at para 27: I take Dr Turner to be stating that for pain to continue to be causatively linked to physical injury, evidence of the physical injury must still be present. I find that this is not in accord with accepted medical opinion about the origins and cause of chronic pain syndrome.... ..I find it surprising that Dr Turner has not even addressed aspects and causes of chronic pain syndrome and acknowledged that it is an accepted medical fact that the process of nociceptivean arise from a sometimes modest or minor discrete injury. 7 [36] The appellant submits that in this case there is an insufficient basis and therefore the test of "is not satisfied" is not met. The ACC could have obtained further opinion from a pain specialist as recommended by Mr Hadlow to clarify the situation and did not do this. DECISION [37] . Mr Hadlow gave his opinion that Mrs Carter was suffering from a chronic pain syndrome rather than any ongoing physical injury. He added that as an orthoapaedic surgeon he could only comment on physical injury and that if the covered personal injury included perceived pain (chronic pain syndrome) arising from injury then this was a matter for decision by a pain expert. However ACC did not obtain opinion from a pain expert about whether Mrs Carter's chronic pain arose from injury. They obtained opinion from an occupational physician who recommended that the claim be declined on the basis of Mr Hadlow's report. Mrs Carter's entitlements were then suspended. [38] Dr Gil Newburn, neuropsychiatrist (and therefore specialist in chronic pain disorder), provided an opinion on the cause of Mrs Carter's incapacity. He gave his opinion that it was clear that Mrs Carter is suffering from a pain disorder and that this is causally connected to her back injury of 23 September 1991. [39] The ACC's position is that Mrs Carter's chronic pain is caused exclusively by disease, infection or the ageing process, more specifically, that it is caused by pre- existing spondylolisthesis. However it is submitted that this position is not supported by the medical evidence. The reviewer in his decision said that he preferred the report of Mr Hadlow, orthopaedic surgeon. The reviewer said he accepted that the diagnosis was chronic pain syndrome caused by pre-existing spondylolisthesis. However this was a misinterpretation of Mr Hadlow's report. [40] In Mr Hadlow's letter to the ACC dated 24 April 2002 he wrote: In answer to your question "Is Mrs Carter's current incapacity due exclusively to factors other than the covered personal injury? " As I stated in my report, Mrs Carter's inability to do household duties and to work is due exclusively to perceived pain and not due to any structural musculo-skeletal diability arising from injury. I would emphasise that as an Orthopaedic Surgeon I can only really comment on the latter. If the covered personal injury includes perceived pain (Chronic pain syndrome), arising from injury then this is a matter for decision by a pain expert. 41] In Mr Hadlow's report of 28 June 2004 he says "the major disability would appear to be an injury initiated chronic pain syndrome". The appellant submits that her chronic pain disorder is not caused by her pre-existing spondylolisthesis, but is a mental consequence of her covered personal injury or accident. Under the 1982 legislation there is cover for both physical and mental injury and the exception has to be proved to exclusively exist. This legislation applies to a consideration of the present appeal. In addition, the respondent has the initial onus of showing a sufficient basis upon, which the entitlements should be suspended. [42] It is clear that Mrs Carter did not have back pain prior to her accident. Mr Grayson, the orthopaedic surgeon who wrote a report dated 26 September 2000 said: The important point however is that Mrs Carter did not have back or leg pain before the accident in 1991, there is no argument that she is not a perfectly genuine patient who can no longer carry on with her nursing career, and if one was to apply the "But for" test I would anticipate that she would still be working as a nurse, but for that accident. I therefore cannot agree with the ACC statement "that her symptoms are largely accounted for by multi-level degenerative changes ". Such a statement is based on a faulty premise that radiological changes pre-date symptoms and disability. There is clear evidence in this case however that an "accident" has precipitated the development of Mrs Carter' symptoms and disability involving her lumbo-sacral spine. [43] Dr Newburn gave his opinion that Mrs Carter's pain disorder was a consequence of her covered injury. He gave his reasoning as follows: I note the debate in other reports around the causation of her symptoms. While there is little doubt that she has a mild spondylolisthesis on radiological imaging, it is clear that this must have been present prior to the injuring event. It caused no symptoms previously, and certainly no enduring symptoms, even in the presence of mild back pain. It must therefore be considered in the absence of the injuring event, the pain would not have developed. That this was a stepwise phenomenon, in the absence of any evidence for somatoform disorder or other related process, suggests very strongly that there must have been a mechanical injuring event at the time. It would defy commonsense to presume otherwise. Given the above, Mrs Carter presents with the Axis I diagnosis of "pain disorder associated with both psychological factors and a general medical condition". The general medical condition refers to the physical injury, and the psychological factors to the depressive exacerbation. It is likely however particularly given the hyperalgaesia, and the expansion of symptoms to the right side, that there is a significant change in central processing of the pain signal. This is a not uncommon concomitant, and is a process that is dependent upon the injuring event to stimulate it. In the absence of the initial nociceptiveom the injury, this process would not arise. It is not something that occurs de novo, and is not a psycho-social factor. Rather, it depends upon a clearly defined physiological process to initiate it. This had its origin in the injuring event of 23 September 1991. Thus, the development of an exacerbation of a pain disorder arising from central sensitization reflects secondary physiological processes arising out of the injuring event. This is analogous to muscular atrophy arising from nerve injury, or heterotopic ossification as is seen not uncommonly in individuals with severe traumatic brain injury. . . . It is also important to consider, whether on the balance of probabilities, her pain disorder might be caused exclusively by disease, infection or the aging process. There is no evidence for this. If her pain disorder were to be caused by other process, then one would expect there to be changes consistent with that. Rather the history of an acute onset at the time of injury of a particular set of symptoms which have continued unabated and unchanged in their nature to the present (although with exacerbation due to other factors) is not consistent with another process. In particular, it is not consistent with degenerative disease, nor with previously occurring spondylolisthesis as a primary causal factor. Even if the factor of spondylolisthesis were deemed to have been significant (and this is not suggested by the writer) the injuring event, and the associated injuries, must be significant, and be considered to be causally more important than any other condition. [44] Similarly, Dr Doube, consultant rheumatologist, recorded that she had persistent pain since her injury in 1991. He further said that he had no difficulty in attributing her ongoing symptoms and incapacity wholly to her injury in 1991. He noted that her symptoms were consistent with a mechanical dysfunction of her lumbar spine. [45] After considering all the medical evidence, the date of the initial injury and the facts of this appeal I find the weight of the evidence, on a probability basis, favours the appellant. Accordingly, I allow the appeal, and quash the decision of the respondent, as well as the review decision [46] I allow the appellant $2000 costs and disbursements. DATED at WELLINGTON this (2 day of May 2009 the J Cadenhead District Court Judge 10