Van Kooten v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. IS /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN MARINUS VAN KOOTEN of Ngaruawahia Appellant (Appeal No. Al 367/2000) AND ACCIDENT COMPENSATION CORPORATION Respondent HEARING at HAMILTON on the 9th day of April 2001 APPEARANCES Mr M Van Kooten in person Mr D D Vincent, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue for determination in this appeal is whether the respondent was correct in its decision of 5 May 2000 to suspend entitlements to the appellant on 2 the basis that the appellant's current incapacity was not as a consequence of the back injury for which he had been granted cover but rather by the disease of rheumatoid arthritis. [2] The facts which are relevant for the determination of this issue, as I find them to be, are as follows. [3] On the date the respondent made its decision to suspend entitlements, the appellant was aged 55 years. On 6 April 1988, the appellant suffered an injury to his lower back during the course of his work as a builder. He twisted his back as he reached to nail a board into place. The appellant has been incapacitated more or less from the time of this injury. [4] In November 1997, the respondent sought a report on the appellant's condition from Mr C Hooker, Orthopaedic Surgeon, Mr Hooker having previously seen the appellant in July 1996. In Mr Hooker's report of 28 November 1997, he noted that the appellant's low back and left leg pain had persisted over the years since the date of the injury but that his condition had been significantly affected by him developing a range of joint symptoms in his upper and lower limbs which was ascertained as being rheumatoid arthritis. [5] Mr Hooker noted that since he had seen the appellant some 16 months earlier his symptoms had worsened both in terms of his low back pain and the range of joint symptoms affecting his knees, elbows, wrists, right shoulder and right hip. He had been receiving treatment from a Rheumatologist for that condition. It was Mr Hooker's opinion that the appellant remained disabled and he went on to state: "The suggestion in my previous report that there may have been pre- existing degenerative changes in the lumbar spine was a suggestion only and it must be accepted that the injury described occurring on 6 April 1988 remains a significant, although relative problem in Mr Van Kooten's continuing disability. The rheumatoid arthritis is now, and was when he was last seen by me, a major factor in his continuing gross disability. 3 Bearing in mind the contribution of the rheumatoid arthritis but the fact that the injury of 1988 is still a relevant factor, it could be suggested that Mr Van Kooten at this time be considered eligible for a partial weekly payment in the basis of that injury, but in addition, to a significant sickness benefit on the basis of his rheumatoid arthritis." [6] In January 1998, the respondent received a report from Dr A Doube, Consultant Rheumatologist. Dr Doube wished the respondent to be aware that at the time the appellant was seen and assessed by Mr Hooker he had not been taking his medication, that is the medication that Dr Doube had been prescribing for him for his arthritic symptoms. It was Dr Doube's opinion that the appellant's inflammatory arthritis would have been uncontrolled and causing greater pain and disability than it need to at the time he was seen by Mr Hooker. Dr Doube went on to state as follows: "I believe Mr Hooker's assessments do not reflect the true picture here. I suspect that where the appropriate inadequate treatment of his arthritis his back problem will once again be the dominant factor impairing his functional abilities. I think it would be appropriate for ACC to review the issue and perhaps request a further assessment once his recently introduced medication has become affected." [7] It was on that basis that the respondent did reinstate the appellant's weekly compensation which had recently suspended and agreed to reconsider the matter at a later date. [8] In March 2000, the respondent sought further review of the appellant's condition and referred him to Ms H Tobin, Orthopaedic Surgeon, and Ms Tobin examined the appellant and reported to the respondent on 13 April 2000. As a summary of her findings, Ms Tobin reported as follows: "Mr Van Kooten is a 55 year old man who has a history of lumbar spine injury with subsequent sciatica. He has also developed rheumatoid arthritis. To answer your specific questions: 4 1. Mr Van Kooten's current diagnosis I believe is rheumatoid arthritis. He does also have a lumbar sciolisis secondary to his leg length discrepancy. 2. In my opinion the back strain injury that he sustained in 1988 has now dissipated. 3. Mr Van Kooten has very few current problems with his lumbar spine. I think that the problems that he did have were substantially due to injury. There is no evidence in the record of him having had degenerative change in 1988. 4. I think the major cause of Mr Van Kooten's current incapacity is his rheumatoid arthritis. 5. Mr Van Kooten would only be able to manage very light work. He would not be fit to return to his previous building trade. He would not be fit for an activities involving bending, lifting or carrying. He can also only walk or stand for short periods. I do not believe that he would be fit for full time work. 6. I think it is likely that if Mr Van Kooten did go back to building or a similar heavy activity that he would suffer recurrence of his back pain. However his rheumatoid arthritis precludes him from going back to this type of work. 7. I believe the prognosis is that Mr Van Kooten will have ongoing problems with his rheumatoid arthritis. His lumbar pain and sciatica does appear to have settled now." [9] It was as a consequence of Ms Tobin's report that the respondent did, by its decision letter of 5 May 2000, advise the appellant that it was suspending entitlements on the grounds that his incapacity was caused by non-accident factors. 5 [10] The appellant sought a review of that decision and for the purposes of that review the appellant did not seek to introduce any medical evidence. [11] In her decision dated 30 June 2000, the Reviewer accepted the medical evidence and confirmed the respondent's decision. [12] The appellant has now appealed to this Court but no new medical evidence has been sought to be introduced. [13] In his submissions to the Court, the appellant referred to Mr Hooker's first report of July 1996 wherein he stated that in his opinion the appellant's marked physical incapacity was partly on the basis of the suggested lumbar disc injury of 1988 but at this time more particularly on the basis of his multiple joint arthritic condition. [14] The appellant then referred to the second report of Mr Hooker in November 1997 wherein Mr Hooker stated that the injury remained a significant although a relatively problem. [15] The appellant also referred to the statement made by Mr Hooker that he considered that if he were to go back to building or similar heavy activity he would suffer a recurrence of his back pain. It was on this basis that the appellant submitted that this indicated that it was the back injury that was a cause of the incapacity. [16] Mr Vincent, counsel for the respondent, submitted that Mr Hooker had emphasised that the cause of the appellant's present incapacity was that of his arthritic condition rather than new back injury. [17] Counsel further submitted that in Mr Hooker's advice the back injury was playing a relatively minor "role" and the subsequent advice of Ms Tobin some 21/2 years later that the back strain injury had now dissipated and that his current diagnosis was that of rheumatoid arthritis, then at very best the appellant's lumbar injury was of little significance. 6 Decision [18] The appellant was granted cover under the Act for a lumbar strain suffered in 1988. The history indicates that the appellant had had a history of intermittent low back pain before the lifting episode which brought about the claim for cover in 1988. However, in addition to the back strain which the appellant suffered, he was also suffering from a multiple joint arthritic condition and the medical evidence has conclusively shown that this condition has got worse over the years and the evidence is that it is of itself disabling as it presently presents, or at least of a time it presented to Ms Tobin in April 2000. [19] In issues such as that which this appeal presents, the Court is entirely dependent upon the medical evidence to reach its findings as to whether a continuing entitlement does or does not exist. An entitlement to weekly compensation will only continue if the medical evidence were to establish, on the balance of probabilities, that the disabling feature of the appellant's condition was the personal injury for which he had been granted cover or its present consequences. When, as in this case, a significant number of years have elapsed since the date when the injury was suffered, it is often the case that the nature of the injury has changed and it is therefore incumbent upon an appellant to establish that there is a causal link between the diagnosed injury for which cover was granted and the condition which currently presented at the time when consideration of future entitlements was being had. [20] In the case of this appellant, this Court has received and read the evidence of Ms Tobin, an experienced Orthopaedic Surgeon, who carried out a full examination of the appellant on 30 April 2000 and on the basis of her examination has formed the view that the cause of the appellant's present incapacity is his rheumatoid arthritis and that the back strain injury is not a factor. [21] I cannot assess any medical evidence which would be contrary to that view and in particular the later report of Mr Hooker of November 1997 where he talks about the back injury being a significant although relatively minor problem and 7 the rheumatoid arthritis being the major factor, cannot be said to detract from Ms Tobin's view. Accordingly I must find on the basis of that medical evidence that the appellant's condition as it currently presents is not compensable and therefore the respondent's decision to suspend entitlements was the correct one. [22] I would, however, emphasise that the respondent has only suspended entitlements although its decision letter did not make that clear. The fact of the matter is in the event of the appellant's back injury again reasserting itself as being a significant factor in his disability then he would be entitled to reapply for entitlements. Such application, of course, would need to be made after appropriate medical evidence had been obtained which would support such a view. In the meantime, however, that situation does not pertain and accordingly this appeal is dismissed. DATED at AUCKLAND this 19 th day of June 2001 Sunthe M J Beattie District Court Judge ai367-2000.doc (nr)