Derry v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT NELSON Decision No. 096/2004 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN MARGARET FAYE DERRY (AI 462/02 ) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at NELSON on 5 December 2003 APPEARANCES Miss S M Kissling , Counsel for Appellant. Mr J R Sumner, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent’s decision of 8 March 2002, whereby it suspended entitlements to the appellant pursuant to Section 116 of the Act on the grounds that her then present medical condition was not attributable to either of the two personal injury claims for which the appellant had been granted cover for injuries sustained on 7 April 1980 and 1 June 1990 respectively. [2] It should also be noted that the respondent’s decision of 8 March 2002 also advised the appellant that her application for weekly compensation and vocational assistance, which she had made following the suspension of entitlements by QBE Workable Limited, was also declined. The respondent’s decision appealed against therefore suspended all existing entitlements which the appellant had been receiving and declined to grant her any fresh entitlements for which she had applied. [3] The background facts relevant to the determination of the issue in this appeal may be stated as follows: 462.02 (pg) 2 • The appellant is a registered nurse by occupation and at the time that the respondent made its decision she was aged 56 years. • On 8 April 1980 the appellant was assisting her husband to lift a lawnmower into the boot of her car when she felt a twinge in her neck and shoulder. That night she began experiencing excruciating pain on the left side of her neck and shoulder. The appellant consulted her GP who prescribed physiotherapy and pain relief medication and it seems to be accepted that at this time there was a nominal claim for cover for the cost of that medical treatment. • In November 1992 the appellant lodged a further claim for cover in respect of that injury when she sought lump sum compensation under the 1972 Act prior to the cessation of lump sum entitlements. • The appellant continued to work as a nurse at various locations in New Zealand and from time to time she suffered further strains to her neck and shoulder, the two major incidents being in May 1990 and November 1992. It seems to be the case that any treatment costs related to those later incidents were attributed to the 1980 injury and the cover provided thereby. • On 22 June 2000 the appellant suffered another neck strain injury whilst in the course of her employment with Nelson Marlborough Health and whilst the appellant initially made a claim for cover with the respondent for that injury, the respondent determined that it was not an exacerbation of her covered injury but rather a fresh injury and for which she would be required to seek cover from her employer’s insurer under the Act. • The appellant did so make a claim for cover and cover can be taken to have been accepted by the employer’s insurer QBE Workable Limited. • Following the obtaining of the relevant medical reports by QBE Workable Limited and the respondent in respect of the appellant’s ongoing claims for entitlements QBE Workable Limited did by decision dated 16 October 2001 determine that the appellant was no longer eligible for entitlements in respect of the covered injury suffered on 22 June 2000 and suspended all entitlements in respect thereof. 462.02 (pg) 3 • Following suspension of those entitlements the appellant sought compensation from the respondent and also an extension of her home help entitlement. • Following the receipt of certain medical advice from Dr C Kenny and Dr J Smynan, Occupational Medicine Specialist, the respondent made its decision on 8 March 2002 on the grounds that the respondent’s medical condition as she then presented was not attributable to either of the covered personal injuries but was attributable to the condition of cervical spondylosis which had occurred naturally over the years and was not a covered injury. • The appellant sought a review of that decision and a review hearing took place on 2 July 2002 at which a substantial body of medical evidence was presented. • By decision dated 15 August 2002 the Reviewer found that the majority of the specialist evidence attributed the appellant’s symptoms to her cervical spondylosis and he further found that it was not established to the necessary degree that that condition had been caused by the injury of 1980. He therefore confirmed the respondent's primary decision to cease entitlements. [4] As is usually the case when decisions made under Section 116 of the Act are called into question, it is the medical evidence which is, in the first instance, crucial, and the present appeal is no exception. The medical evidence which I find to be relevant to the issue is set out as follows: Medical Evidence 1. Medical Report from Dr David McAuley, Neurologist, dated 26 February 1982 to the appellant's GP. The appellant's GP had referred her to Dr McAuley because of her persistent neck pain which she had been experiencing since the motor mower lifting incident and which was radiating down her left side. Dr McAuley carried out a full examination. His diagnosis was that the clinical signs suggested a lesion in the high brain stem on the right or in the internall capsular region of the right hemisphere. He did go on to say however that other causes would need to be excluded. Dr McAuley took X-rays and he advised that 462.02 (pg) 4 her cervical spine showed minor degenerative changes and the radiology report dated 5 November 1992 to the appellant's GP stated as follows: "There is a slight narrowing of the C4/5 intervertebral disc space and there is moderate narrowing of the C5/C6 intervertebral disc space; ;the appearances are those of partial damage and degeneration of these discs. There is slight encroachment on the C5/6 neural foramen on the left side by osteophytic spurs." 2. Report from Mr Terence Macedo, Specialist Physician and Rheumatologist, dated 24 March 1993 to ACC. Mr Macedo had examined the appellant at the request of the respondent and he noted the history of neck injury in 1980 whilst lifting the lawn mower. He also noted the August 1992 incident at North Shore Hospital causing neck pain. Mr Macedo's assessment was as follows: "Margaret Derry has signs of left cervical nerve root lesion affecting C5. The signs of nerve root deficit are mild but the major problem is of referred pain in the nerve distribution as well as referred pain into distant sites including the left shoulder blade and occiput. The behaviour of the pain she has at night suggests that there is C5/6 disc disease and compounded by a degree of osteophyte encroachment at neural foramina. She did not have generalised evidence of osteoarthritis although there is some early degenerative change in her neck. The relationship to trauma in 1980 was clear and it does appear in the absence of any other activity that the repeated lifting over August and September 1992 caused a flare-up of background cervical spine pain and nerve root irritation." 3. Report from Mr Gary Heynen, Orthopaedic Surgeon, dated 26 October 1993, to ACC. Mr Heynen's specialist area is arthritis and joint reconstructive surgery and he examined the appellant in October 1993 and reported to the respondent. He noted that she had lost approximately 50% of the normal cervical spine movement. Mr Heynen gave his opinion that the appellant presented with symptoms and signs consistent with the possibility of a cervical disc prolapse which occurred in 1980 and that she had gone on to have some cervical spondylosis and radicular type pain in her right shoulder. He assessed her entitlement to lump sum compensation as being 15% loss of function. 462.02 (pg) 5 4. Report from Dr Martin Robb, Occupational Medicine Specialist, dated 15 August 2000 to ACC. The respondent asked Dr Robb for a medical assessment and he was provided with copies of all earlier medical reports and radiological data for the purpose, including an MRI scan taken in November 1994. Dr Robb advised that her symptoms indicated a possible C6 nerve root compression and he noted that the radiological investigations indicated degenerative disc disease in her neck. He went on to state that - "It is very likely that Margaret's current problems have arisen from her neck injuries, particularly those in 1980 and 1990." 5. Report from Dr J Bonkowski, Neurosurgeon, dated 11 September 2000, to ACC. Dr Bonkowski was asked to give an assessment and prognosis of the appellant's condition and he had the benefit of X-rays and an MRI scan taken in August 2000 as well as earlier X-rays and MRI scan. Dr Bonkowski commented on the radiological findings as follows: "The plain X-rays suggest that there is some minor spondolytic collapse of all the cervical discs below C2/3 although the C6/7 disc appears to be the most collapsed. A copy of the MRI scan report from St George's has been forwarded. However, the essential finding is that at C5/6 there is some very minor left-sided disc bulging but this appears to be not sufficient to impinge on the left C6 channel. At the C6/7 level there is evidence of chronic internal spondylytic breakdown of the disc with some adjacent end plate changes but no obvious disc bar or nerve root impingement." Dr Bonkowski then stated that he did not consider that there was evidence of significant cervical nerve root impingement and that the appellant's symptoms were therefore not those of either spinal canal or nerve root irritation by prolapsed cervical discs. He did not consider that the spondylytic breakdown was responsible for anymore than some local discomfort and he could not account for her degree of discomfort on the basis of the radiological evidence. 462.02 (pg) 6 6. Report from Dr Martin Robb dated 28 September 2000 to ACC. Dr Robb was asked to comment on the recent X-rays and also Dr Bonkowski's conclusions. Dr Robb certainly agreed with Dr Bonkowski's conclusions and he went on to state that the appellant's symptoms and signs were consistent with a chronic regional pain syndrome and that her treatment should now be directed at pain management. Dr Robb went on to state as follows: "Recent medical evidence indicates that pain syndromes occur in those with a genetic pre-disposition. Regional pain syndromes tend to follow on from injuries although there is no apparent dose-response relationship and the precipitating injury can be mild or severe. Other provoking causes include nerve damage and immobilisation. The tendency under New Zealand case law has been to provide accident cover for those in whom there seems to be a progression from injury to the development of a chronic pain syndrome. In Mrs Derry's case there is a history of several injuries to the neck, the first of which occurred in 1980. In June 2000 she further injured her neck and it is since this date that she has had continuing severe and unremitting pain." 7. Report from Dr J R Monigatti, Occupational Physician, dated 9 October 2000 to ACC. Dr Monigatti was asked to comment on the ongoing acceptability of the appellant's claim and he was provided with all medical reports and radiological data for the purpose. In particular he had the reports of Mr Macedo, Mr Heynen, Mr Mee, Neurosurgeon, Dr Robb and Dr Bonkowski. Dr Monigatti's assessment of the appellant's condition in the light of those reports was stated as follows: "It is likely that the exacerbation of Mrs Derry's symptoms in June of this year heralded the onset of her pain syndrome. It is uncertain whether this arose spontaneously or secondarily to either the cervical spondylosis or non-physical stress. It is also unclear whether the osteoarthritis that may have caused the pain syndrome is post-traumatic or simply the consequence of natural wear and tear in a susceptible person. Mr Bonkowski, unfortunately, gave no indication as to why he ticked "agree" that it was a personal injury. I am afraid that, given the paucity of clinical information relating to injuries caused by any of the accidents reported by Mrs Derry, I am unable to answer your question about causation. Any such attribution must be speculative at best. I would say, however, that four-level disc disease is more plausibly the consequence of age related degeneration than separate episodes of trauma to four levels individually. Also, the discs most prone to natural degeneration are those at C5-6 and C6-7 being closest to the junction between the relatively mobile cervical spine and the comparatively fixed thoracic one." 462.02 (pg) 7 8. Report dated 13 June 2001 from Dr Andrew Harrison, Rheumatologist, to Nelson Hospital. Dr Harrison obtained a history and he carried out an examination. The purpose of his report was to advise as to the future treatment of the appellant and in the course of that advice he stated, inter alia, as follows: "There seems little doubt that the majority of the symptoms in her neck and shoulders over the last two decades have been due to injuries affecting the neck and ultimately resulting in degenerative changes in the discs and bony structures. The argument that these injuries merely exacerbated an underlying degenerative problem was the fact that pain only ever occurred in relation to specific injuries and that before these occurred there were no symptoms in the neck. The tingling in the arms and radiating pain down the arms suggests an element of nerve compression. The MRI did not confirm this but one could speculate that specific injuries have resulted in soft tissue oedema causing nerve root compression within the tight spaces of already narrowed exit foramina." 9. Report from Dr C T Kenny, Occupational Medicine Specialist, dated 24 December 2001 to ACC. Dr Kenny was asked to give his assessment of the appellant's present condition and he was provided with some 21 medical reports for reference. Dr Kenny's report to the respondent advised, inter alia, as follows: "Ms Derry has evidence of long-standing and gradually progressive cervical spondylosis, which has been symptomatic probably since 1980, with the typical pattern of several exacerbations during that period, associated with relatively minor activities/incidents. From the medical reports provided there is clearly controversy as to the relationship between her cervical spondylosis to injury. In my opinion, her cervical spondylosis has occurred as an age-related phenomenon, with symptoms arising as a result of minor incidents or heavier lifting activities, but without any specific injury occurring. However, it is also possible that Ms Derry developed a symptomatic intervertebral disc protrusion (perhaps at the C5/6 level) in 1980, on a background of pre- existing degenerative change. If this did occur, then it is unclear whether it was in 1980, or at a later time (such as 1992 when Ms Derry lodged an injury claim). At the time of a CT scan in June 1993, there was evidence only of a small to moderate-sized right postero-lateral disc herniation considered to possibly be compromising the exiting right C7 nerve root. However, it is quite likely that this 462.02 (pg) 8 is an entirely incidental finding, since Ms Derry's upper limb symptoms involved the left side. Similarly, an MRI scan in November 1994 showed only a moderate-sized disc bar at the C6/7 level (indicative of osteophytic change at that level), and without evidence of any nerve root compression or spinal stenosis. This disc bar was therefore unlikely to be contributing to Ms Derry's upper limb symptoms. As indicated by the neurosurgeon, Edward Mee, the scan provided evidence only of degenerative change at the C6/7 level without spinal cord or nerve root entrapment. Ms Derry also has evidence of a centrally-mediated pain disorder, likely to have been triggered by her persisting neck pain secondary to cervical spondylosis. Symptoms consistent with this diagnosis include the persistent, non-dermatomal left upper limb symptoms (not readily explainable on the basis of repeated detailed imaging investigations), abnormalities in multiple sensory modalities (heaviness, aching, pins and needles, numbness, crawling feelings, shooting sensations, etc.), other more widespread musculo-skeletal and neurological symptoms (bilateral heel numbness, quadriceps and calf aching), other neuro- hormonal disturbances (palpitations, asthma, premenstrual symptoms, gastro- intestinal dysmotility), and marked constitutional symptoms (fatigue, sleep disturbance, non-restorative sleep and generalised stiffness). These widespread musculo-skeletal, neurological and constitutional symptoms cannot be entirely explained on the basis of a polymyalgia rheumatica which appears to have developed more recently, while the other symptoms have been present at least for several years. It is quite possible that the polymyalgia rheumatica has developed in response to the pre-existing physical and/or psychological stresses. However, polymyalgia rheumatica typically arises spontaneously in women of 50 years and above, and is a relatively common condition, perhaps affecting up to 1:200 people. … While it is not possible to state absolutely that Ms Derry's neck pain did not originate secondary to some specific traumatic event, possibly a cervical disc prolapse, such an incident (in 1980 or 199) cannot explain the more widespread multi-level cervical spondylosis or the subsequent development of a regional pain disorder. Certainly, the story of the development of periodic episodes of neck pain is consistent with an age-related degenerative neck condition (cervical spondylosis), with or without episodes of disc protrusion/prolapse, which can occur spontaneously or in association with normal activities of daily living or minor injuries. A symptomatic disc protrusion or prolapse, with or without nerve root compression or spinal stenosis, does not indicate an injury or accident. Rather, such pathology develops as part of the degenerative process in many people. It is not uncommon for previously asymptomatic spondylosis, both in the cervical or lumbo-sacral spine, to remain persistently symptomatic to a variable extent after the initial onset of symptoms, or following the initial precipitating incident. This is not necessarily indicative of an incident or injury leading to the persistent symptoms. In my opinion, the three conditions which Ms Derry appears to experience, the ongoing cervical spondylosis (without evidence of nerve root compression or 462.02 (pg) 9 spinal stenosis), her regional pain disorder, and the recent polymyalgia rheumatica, are all likely to have occurred spontaneously, but may have been exacerbated by, or rendered symptomatic by specific movements and physical activities (including those at work). … Ms Derry's current relative incapacity for her previous employment is on the basis of her long-standing cervical spondylosis, together with a chronic regional pain disorder, likely to have been contributed to by both prolonged nociceptive stimulation (pain arising from her cervical spondylosis) and by psycho- social/psychological stressors, in a susceptible person." 10. Report from Dr Paul D Trulove, Rheumatologist, dated 8 February 2002, to the appellant's GP. The appellant had been referred to Dr Trulove for examination, report and comment on the report from Dr Kenny. Dr Trulove was asked to consider the relationship of the accidents with the appellant's spondylosis and her continuing cervical spine and shoulder pain. Dr Trulove advised as follows: "The features of cervical spondylosis are typical and, from a rheumatological viewpoint, this condition tends to be an interplay between mechanical, traumatic and overuse features. The injuries generally associated with this are generally flexion/extension (whiplash), sports (rugby, diving) and other specific injuries often occurring during falls. The injuries may be related to a single traumatic event or due to repeated minor trauma - these repeated events seem to have been operative in Mrs Derry's case. The difficulty is in establishing the nature of the 1980 injury. I do not believe there is any way this can now be established. She is left with marked irritability of the neck and left shoulder and arm. On occasions she experiences discomfort in the right arm. … In summary, Mrs Derry has a persistent neck, left shoulder and arm pain stemming from an event in 1980. Minor actions in the intervening years have exacerbated the pain. The actions tend to be with a lifting, twisting element. She does show a minor neurological change, the cause of which is not evident." 11. Report from Dr J Snyman, Occupational Medicine Specialist, dated 27 February 2002 to ACC Dr Snyman is the Director of Workwise Wellington, which is the specialist occupational medicine arm of the respondent. Dr Snyman was asked for his opinion as to whether the respondent had a continued responsibility to the appellant and he considered the 462.02 (pg) 10 matter in the same way as it had been referred to Dr Kenny. Dr Snyman set out the issue in his response as follows: "It appears as if it is a major issue here as to whether the disability should therefore be all attributed to a series of accidents with the first in 1980, rather than any other condition. I have not come across any attribution of the causation for the disability, except that the claimant proposes that the cervical problems are secondary to lifting a lawnmower at age 34, and the later dive into the door jam [sic] (inter alia). As such, what is effectively being proposed is that the pain is the result of post traumatic changes, these manifesting as arthritis in the broader sense, which is simply what cervical spondylosis means: arthritis of the spine of the neck. Whereas I do understand Mrs Derry's scepticism about age-related changes at 34, it may be helpful to note that from a physiological perspective the human body is really on a downhill run as from about 23, that being the point at where full maturity is in fact reached. Any subsequent ageing is part of a degenerative process. It is not uncommon for the spine to present with osteoarthritis, or more puristically referred to as osteo-arthrosis, and when in the spine, the specific term spondylosis is employed. It is therefore possible that early degenerative changes can vary[sic] well [sic] manifest in the 30's as the younger recipients of spinal operations can attest." Dr Snyman then comments on the report of Dr Harrison which I have set out above in paragraph 8. Dr Snyman stated: "In the first sentence, the comment about little doubt that injuries are responsible reflects Dr Harrison's opinion, and can neither be proved nor disproved. The neck injuries as described by this claimant are not extraordinary, but fall within quite a common range - for example, should injuries with the energy transfer as described generally result in long term problems, then most rugby players should be affected as much if not more. Furthermore, Dr Harrison qualifies his statement by referring to the "majority" of symptoms, and as such he does not exclude other factors. In addition, he ten puts forward that "one could speculate …nerve root compression … of already narrowed exit foramina." As such he acknowledges the presence of pre-existing problems, i.e. already narrowed exit foramina, which would be a standard feature of spondylosis. As for "the fact that pain only ever occurred in relation to specific injuries", it is perfectly understandable as people invariably link some event to the onset of a new sensation. But temporal links are not necessarily features of causation. Performing an activity like lifting a lawnmower (1980), or a breast pump (June 2000) would only be considered marginal upon the realisation that discomfort has manifested itself - up to that point the activity would not have been considered noteworthy. As for the incidents with the slide projector and door jam [sic] (6 m gash on head which required suturing), neck pain would be expected - but usually of a transient nature. … At this late stage I propose little is to be gained by arguing attribution retrospectively. Even had the initial symptoms been due to injury, what is at issue now is whether current and ongoing problems are due to, and as such have been caused by, past injuries. Mrs Derry may have had problems related to her neck injuries at the times of injuries. However, the ongoing and present state of affairs is not only on a balance of probabilities, but is most likely, to be secondary 462.02 (pg) 11 to non-injury causes. Suffice that Mrs Derry at her age at present of 55 would have cervical spondylosis. Cervical spondylosis is not just an incidental finding in most cases, but for all practical purposes a universal finding in people of this age group. There is no material on file to suggest that this cervical spondylosis is markedly different from what would still be expected as part of the normal range (especially considering the history of spondylitis [father] and spine problems [brother]. Mrs Derry also has PMR. As such I have not found any reason on file to conclude that the cervical symptomatology in this case should be an extraordinary presentation of past injuries. … Based on the above, I conclude that Mrs Derry has neck pain which fits in with the natural history of cervical spondylosis rather than post-traumatic changes. Even if some damage had been suffered due to injuries, this would now be overshadowed by other disease processes. As such ongoing entitlements would be for disability secondary to non-injury factors." DECISION [5] The issue which is confronting the Court is whether the seemingly unremitting pain which the appellant experiences, which is accepted as being incapacitating, and which is generally agreed is arising as a consequence of the cervical spondylosis and her chronic regional pain disorder, is attributable in some material part to the neck injuries which she suffered in 1980 and which were exacerbated in subsequent episodes in 1990 and 1992 and for which she was granted cover under the relevant Accident Compensation regimes in force at the time of those accident. [6] It must be noted from the outset that the two principal incidents of injury were said to have occurred in 1980 and 1990 respectively, and as such the provisions of the Accident Compensation Act 1972 and 1982 do come into play. It is the case that the exclusion of non-coverable conditions, such as disease or the ageing process, can only be sufficient to exclude ongoing entitlement in cover where that condition is the exclusive cause of the ongoing condition, as opposed to it being the whole or substantial cause, which is the test in the later Accident Compensation legislation commencing from 1992 onwards. [7] This Court has held in a number of its decisions that where the injury did occur under the 1972 or 1982 Act then the definition of personal injury and the limitation of exclusion therefrom must be that which is contained in those Acts and reference can be had to the decisions of this Court in Denzel (Decision 262/1), Smith (271/01) and 462.02 (pg) 12 Wall (222/01), the principle of which has subsequently been confirmed by the High Court in Gray (Wellington Registry: AP 250/01). [8] In the context of this appeal it would be for the respondent to establish that the appellant's medical conditions are not in any way attributable to the consequences of covered injuries which are the cause of the appellant's ongoing incapacity; that is, that her neck and shoulder injuries have not caused in any way her cervical spondylosis or her regional pain syndrome. [9] For the avoidance of doubt it is the case that the onus of proof is upon the appellant to establish, when called upon, her continuing right to entitlements under the Act and this onus has been made clear as falling on the appellant by numerous decisions of this Court confirmed as they have been by the High Court decision in Fowlie (Wellington Registry : AP 50/00). In discharging that onus the appellant must establish on the balance of probabilities that her current incapacitating condition is attributable at least in part to the consequences of a covered personal injury. [10] In the course of this decision I have set out some of the large number of medical reports that have been presented at the hearing of this appeal in the agreed bundle of documents. I have not set out all the reports that have been presented as a number of reports were prepared wholly for treatment purposes and they did not in fact have any medical or legal content. In any event, from a diagnostic point of view, they simply confirmed the diagnoses that had been made by the other specialists which I have set out above. [11] It is regrettable that the first evidence that the Court can look to in relation to the appellant's neck injury of 1980 is the report of Dr McAuley of February 1982. That report was from Dr McAuley, as the specialist, to the appellant's GP. It is wholly for the purposes of diagnosis and suggestion of treatment. In the light of later medical reports, it seems as though the diagnosis made by Dr McAuley, that the matter was one of a lesion in the brain stem, was somewhat wide of the mark. In reality the only help that Dr McAuley's report can give is his advice of the X-ray of her cervical spine which he took and which he noted showed some minor degenerative changes. It is to be noted that the appellant was aged 35 years when those X-rays were taken. [12] In fact it was not until some time after the 1990 and 1992 incidents that more in depth medical investigation was taken on the appellant's condition and the next X-rays 462.02 (pg) 13 of the appellant's cervical spine were those taken in November 1992. It was the opinion of both Mr Macedo and Mr Heynen that the moderate cervical spondylosis that was identified was attributable to the 1980 trauma. Mr Macedo said that the relationship "was clear". Mr Heynen's advice was less emphatic as he used the word "possibility". Both of these specialists were reporting to the Corporation on the matter from a medical legal perspective and indeed Mr Heynen was reporting to the respondent for the purposes of advising on the appellant's entitlement to lump sum compensation and that lump sum compensation was certainly granted on the basis of an acceptance of Mr Heynen's opinion. [13] It is not until the year 2000 that the appellant's condition again came under scrutiny, probably for the reason that she continued to soldier on in her employment as a midwife, with no doubt comparatively modest treatment costs as being her only ongoing entitlement claims. Indeed it was the incident in June 2000, when she suffered a further exacerbation of her neck whilst carrying the breast pump, that brought matters to a head and generated a flurry of medical reports. [14] Although, as between the respondent and the appellant's employer's insurer, QBE Workable Limited, there was an acceptance that the June 2000 neck strain was a separate and distinct injury, it seems that subsequent medical advice would indicate that it was no more than a further example of an exacerbation of her long-standing problems with her cervical spine. The Court, in a separate decision, has determined that the appellant's ongoing problems cannot be attributed to any injury which the appellant may be said to have suffered as a separate and distinct injury in June 2000 and therefore the responsibility of QBE Workable Limited, as the insurer, has been terminated. [15] It must be kept in mind that the specialists who were consulted after June 2000 were asked to look at a condition which first arose some twenty years earlier and for which there was a dearth of contemporaneous medical information. The Court has in fact received assessments from four Occupational Medicine Specialists, namely Dr Robb, Dr Monigatti, Dr Kenny and Dr Snyman. The knowledge and expertise of the first three is well-known to the Court but that of Dr Snyman is less well-known. [16] The diagnosis of each of those four specialists is that the appellant's present problems are attributable in part to the cervical spondylosis, in part to a regional pain syndrome and possibly in part to polymyalgia rheumatica, although it is agreed by all 462.02 (pg) 14 specialists that this latter condition, which is simply a condition known as painful muscles, is not in any way attributable to any personal injury by accident with which this appeal is concerned. It seems to be accepted as being somewhat of a "red herring". [17] Of the four Occupational Medicine Specialists who have expressed opinions, Dr Robb advises that it is "very likely" that the appellant's current condition is attributable to the injuries of 1980 and 1990. Dr Monigatti, whilst advising that the June 2000 injury probably heralded the onset of her regional pain syndrome , was otherwise unable to give an opinion as to any causative nexus between the 1980 and 1990 injuries and the current diagnosis. He considered such attribution would be "speculative at best". Dr Kenny was quite definite that the appellant's cervical spondylosis was an age related phenomenon but then qualified his advice by saying that it was not possible to state absolutely that the appellant's neck pain did not originate secondary to a specific traumatic event. He, like Dr Monigatti, said that those events could not explain the widespread multi-level of the cervical spondylosis. [18] Finally, Dr Snyman considered that the appellant's ongoing condition was, on the balance of probabilities, secondary to non-injury causes, and that her cervical spondylosis would have been caused naturally as a progressive age-related condition. His final word was that even if some damage had occurred as a consequence of the injuries, those injuries would be overshadowed by other disease processes which had arisen. [19] From the foregoing evidence I find that it cannot be established on balance that the neck injuries suffered by the appellant in the two incidents in 1980 and 1990 respectively, and further exacerbated as they were in 1992 and 2000 respectively, do not have a continuing legacy in the appellant's condition as it presented in March 2002 when the respondent made its decision to cease entitlements. [20] At the very least it seems to be the accepted opinion of the specialists that the appellant began displaying the symptoms of a regional pain syndrome immediately after the exacerbating injury of June 2000, and it is certainly the fact that the regional pain syndrome is a continuing feature of her incapacity. [21] Whilst the Court is certainly not in a position to determine how the appellant's cervical spondylosis arose, it seems to be accepted that at least part could have 462.02 (pg) 15 developed from some disc protrusion caused by one of the incidents of injury even though such a disc protrusion at multi-level can be considered a natural phenomenon. [22] Into the mix must also be placed the opinions of Mr Macedo and Mr Heynen who certainly gave their opinions much closer to the events which were said to be the causative events, as opposed to the later specialists who came to it after a further lapse of time. [23] I commenced this decision by identifying the principles of law which were applicable and it is the case that for the respondent's decision to be correct in law it must be established that non-covered injury factors, such as disease or the ageing process, were exclusively the cause of the appellant's ongoing medical condition. Having regard to all the evidence I find that such a finding cannot be made and that in fact the appellant has established, on the balance of probabilities, that there is still a significant element of the sequelae of her covered injuries which are causing her present condition, particularly the regional pain syndrome which she has developed. [24] For the foregoing reasons, therefore, I find that the appellant has made out the case for the continuation of her entitlements for her condition as it presented in March 2002 and the respondent's decision to suspend same or to refuse to grant further entitlements was incorrect. The respondent's decision of 8 March 2002 is hereby quashed and the appellant is entitled to reinstatement from that date of all the entitlements for which she then qualified. [25] The appellant is entitled to costs which I fix at $2,000 together with the costs of any medical reports which were obtained for the purposes of this appeal. DATED at AUCKLAND this 8th day of April 2004 M J Beattie District Court Judge 462.02 (pg)