Fowlie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 97 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN MARION MARGARET FOWLIE DCA 108/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of December 1998 APPEARANCES: Mr T F Purcell counsel for appellant Ms H A Preston counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether there was a causal link between the appellant's present incapacity and the personal injury by accident for which she was granted cover. N BACKGROUND The appellant is now aged 56. She and her husband carry on a dairy farming partnership and prior to her injury by accident the appellant was also employed as a nurse aid by the Waikato Area Health Board. On 11 February 1989 whilst lifting a patient with another nurse, and when through a slip, the appellant bore the whole weight of that patient. She suffered a cervical spine injury. The medical certificates provided to the respondent at the time when cover was sought and weekly compensation claimed because of her inability to work simply stated "cervical spine injury". The appellant was also seen by Mr R V Jackson, Orthopaedic Surgeon, and he described her injury as cervical spine dysfunction. The appellant did in fact continue working immediately after this injury and received physiotherapy as her only treatment. She then ceased work as a nurse aid for about six months and then went back to work again at the hospital for about six weeks but, the pain she suffered caused her to cease work all together. The appellant has not worked since and has not been able to undertake any physical farm work to assist her husband. The appellant was awarded lump sums under sections 78 and 79 of the 1982 Act. In 1996 the respondent undertook a review of the appellant's situation and for the purposes of that review it sought the advice of Mr Alastair Hadlow, Orthopaedic Spinal Surgeon. The letter of instruction to Mr Hadlow indicates the particular line of inquiry that the respondent was pursuing and that was whether or not the appellant was able to work. The letter of request stated "Can you please advise us of Marion's present level of fitness for work with a regard to her occupation at the time of injury as a hospital aid/farmer... according to Mrs Fowlie's medical certification she is totally unfit for work. I find this very hard to comprehend and believe that Mrs Fowlie certainly could manage selective or light duties at least. I also question whether Mrs Fowlie should be still incapacitated for an injury that no diagnosis can be confirmed and occurred back in 1989. Mr Hadlow examined the appellant and also had the benefit of x-rays of the appellant's cervical spine which had been taken on two occasions namely, September 1990 and January 1992. In his report he stated: "I have reviewed x-rays of this lady's neck taken on 26 September 1990 which show fairly advanced C5/6 spondylosis and loss of disc height. X-rays taken on 16 January 1992 show worsening of the spondylosis with almost complete obliteration of the disc space. This (lady) first injured her neck on 1 1 February 1989. She subsequently had x-rays on 26 July 1990. This was some 18 months post injury. At the time of her x-rays in 1990 she had obvious C5/6 spondylosis and it is my opinion this pre-dated her accident. However, this it is my opinion that at the time of the accident she aggravated the degenerative change that C5/6 level in her neck. It is my opinion that the ongoing pain she is getting in her neck is on the basis of her C5/6 discogenic disease. It is my opinion that this lady's subjective disability far outweighs her objective disability. The patient is an otherwise healthy 54 year old lady and it is my opinion that she is fit for sedentary work or work which involves minimal light lifting." Despite the fact that the respondent's Medical Case Review Co-ordinator identified Mr Hadlow's report as giving an opinion firstly, that she was fit for sedentary or light 4 work and secondly, that the predominant reason for her incapacity is not injury related but rather as a consequence of a pre-existing condition, nothing was done in furtherance of that advice until September 1997 when the appellant was advised by a letter that her weekly compensation entitlement would cease. The letter states: "This decision follows a medical case review which concluded that you are fit to return to work." The appellant sought a review of that decision. In her decision the Review Officer reviewed the evidence given by the appellant and also the medical reports which had been obtained in 1990 and 1992 from Mr Jackson and also Mr Hooker, Orthopaedic Surgeon. The Review Officer identified that the test of incapacity had two limbs to it, the first being whether there was an inability to return to pre-injury employment and the second limb being to determine whether that incapacity is by reason of the personal injury. The Review Officer ruled that she considered it clearly established on the evidence that the appellant is suffering incapacity and that the advice of Mr Hadlow that she was fit for light or selective duties did not fulfil the test. However, insofar as the second limb is concerned, the Review Officer found that the appellant's present incapacity was as a consequence of the degenerative condition of the cervical spine, particularly at the C5/6 level and that there was no medical evidence which would indicate that the accident injury was still a factor in her present condition. She accordingly confirmed the respondent's decision to cancel weekly compensation. For the purposes of this appeal the appellant sought and obtained the opinion of John Hancock, Specialist Physician, and his report is the only additional evidence from that which was presented to the Review Officer. The question of the appellant's incapacity, as that term is defined in the Act, is not an issue in this appeal and the sole issue is whether there is any causal connection 5 between that which is causing her present incapacity with the injury she sustained in the accident in February 1989. THE MEDICAL EVIDENCE The first specialist to examine the appellant was Mr R V Jackson, Orthopaedic Surgeon, and in his first report of 27 September 1990 he stated: "I consider Mrs Fowlie to be a very genuine sort of person. There is little doubt that she has a marked cervical spine problem with a degenerative disc with an aggravation factor from the incident she described on 11.2.89. Because of this I consider that she should be illegible for ACC and I am sure we are only going to settle the complaint down if we can get her away from the aggravating factor of nursing at work as a nurse aid." In a further report dated 20 February 1992 Mr Jackson stated: "Previously x-rays have clearly shown a C5/6 degenerative disc here but her most recent symptoms could signify a more acute disc prolapse than is apparent on ordinary x-rays. Unfortunately vigorous examination such as she was probably subjected to in January has certainly not done her any good and she is now back worse than she ever was following months of getting her complaint to settle down." Mr Jackson called for a CT Scan and in a report dated 24 March 1992 he referred to that CT Scan and stated: 'The report would suggest that there is no abnormality detected and there is no nerve route impingement ... I explained to Mrs Fowlie today that I cannot throw any more light on the problem and that she has already had all the treatment that can now be offered. I will have to pass treatment back to 6 yourself at this stage, I think future treatment will have to be between Mrs Fowlie and the ACC." In between examinations by Mr Jackson in 1992 the appellant was also seen by Mr C H Hooker, Orthopaedic Surgeon. Mr Hooker carried out a thorough examination and reported to the respondent. It is to be noted that the purpose of his report was to give his assessments of her entitlements to lump sums under sections 78 and 79 of the 1982 Act and he was not addressing the issue which is before this Court. Mr Hooker stated: "EXAMINATION - 16 January 1992 There was tenderness at the level of the spine of C2 but no other particular, localised tenderness. There was pain in this region and at the base of the neck in the region of the spine of Co on extension and particularly on lateral flexion of the neck to the right. Lateral flexion movements both ways were limited to about half of normal but other movements only terminally limited. Upper Limits The upper limbs were normal. X-RAYS Two series of films of the cervical spine were available. In a series dated 26 September 1990 there was localised C5/6 disc degenerative change and in a further series of films dated 16 January 1992 these changes had advanced to a significant degree with oblique views on that date showing some evidence of foraminal narrowing on both sides with osteophyte formation. OPINION 7 In attempting to advise the Accident Compensation Corporation on Mrs Fowlie's entitlements under Sections 78 and 79 of the Accident Compensation Act the following points I believe could be made: 1. Prior to February 1989 Mrs Fowlie states that she had not experienced neck symptoms. 2. The radiological changes evident in the first series of films referred to, a series taken some one and a half years after the accident show localised disc degenerative change. The appearance could be the development of change on the basis of past, localised injury although this is obviously, highly conjecturel. The series of films taken at this stage show these changes to have advanced to a significant degree and to involve the posterior joints with some foraminal narrowing which would account for symptoms radiating into both upper limbs. The changes are still localised to the one level. 3. With the symptoms described being experienced with any extra physical activity using the upper limbs at this stage I believe it is unrealistic to expect Mrs Fowlie to return again to heavy manual work, work involving heavy lifting as in geriatric nursing. I believe she will be limited in the future to a range of lighter physical work and activity. " Finally there is the report of Mr John Hancock, Specialist Surgeon, and it is to be noted that his report was provided to the appellant's counsel in response to counsel's request for an opinion "about Mrs Fowlie's ability to work as a consequence of her injury in March of 1989." "This is a reply to your request... for an opinion about Mrs Fowlie's ability to work as a consequence of her injury in March of 1989... There are two broad issues as there are with most of these cases. The first is strictly a "legal" one, and that is is there evidence for her suffering the injury event she alleges, and furthermore, is there a clear case to be made out for continuing pain and hence disability following on from that event. The absence of any previous ongoing neck pain prior to the injury is evidenced by her GP notes... Overall there appears to be no issue in the fact that she suffered an injury and developed pain afterwards which had not been present before... It has been long known... that there is no correlation between spine pain and degenerative disc or osteorathrosis(sic) ... The cumulative evidence from research papers shows there is no difference in the prevalence of degenerative changes of the cervical spine between those that are seeking treatment for neck pain and those in the general population who do not... It is entirely reasonable that Mrs Fowie's not unexpected C5/6 changes were accelerated by the effect of her accident if the disc, in fact, is to be included as a possible source of pain. Unfortunately the injury is still out with respect to the disc as a source of pain...In summary, there is no epidemiological evidence to support degenerative disc changes as a cause of pain... This means statements as given by Mr Hadlow are opinion and not attested to by any known fact as given by scientific research... I believe [the segmental blocks carried out] point to the likelihood that she has a chronic joint disturbance to explain her pain... In summary, unless a criterion standard for the diagnosis of pain is used... then little can be said as to the cause of magnitude of cervical pain. Furthermore, imputations as to psychological disturbance and distress being a cause of pain now look as if they are indeed secondary to ongoing pain." SUBMISSIONS Mr Purcell, counsel for the appellant, made the following submissions: i) The appellant had received lump sum awards under sections 78 and 79 of the 1982 Act and this must be seen as a clear acknowledgement not only of the fact of personal injury by accident but also the adverse and ongoing disabling 9 effects of that injury. If it had been pre-existing condition, a lump sum award would not have been made. ii) Mr Hadlow's report is superficial, he did not have to have the whole background information, his examination was brief, his opinion was unsupported by medical or scientific evidence or authority. ifi) The report of Mr Hancock supports the previous opinions expressed by Mr Jackson and Mr Hooker and on the balance of probabilities the appellant was entitled to continued cover. Miss Preston, counsel for the respondent, submitted: i) That the weight of the expert evidence was that the present cause of the appellant's incapacity was the pre-existing degenerative condition which had worsened markedly over the years since her injury in 1989. ii) Whilst Mr Hancock criticises Mr Hadlow and his findings, he himself does not create or establish any causal link between her present condition and the injury sustained in the accident of February 1989. DECISION The issue which calls for determination in this appeal is one that is wholly reliant on medical evidence. This Court is required to look at the state of the medical evidence as it was at the time of the review decision in February 1998, exactly nine years after the date of the accident, said to have given rise to the appellant's present incapacity. It is to be noted firstly, that the evidence establishes that prior to this lifting accident in February 1989 the appellant was a fit and healthy and energetic person with no previous history of back or neck problems. Indeed the lifestyle that she narrated at the review hearing would indicate that she worked long and hard at her two jobs of 10 farming and nurse aid usually undertaken at nights. In addition, she had the task of running a household with growing children. The second point to be noted is that the appellant's injury occurred during the time that the 1982 Act was in force and the experience which this Court has noted is that certain legal issues which now arise under the 1992 Act, such as the present issue in this appeal, were not really addressed in earlier cases and the present issue does not seem to have been addressed in the case of this appellant at the time of her lump sum settlement. The medical history of the appellant's case subsequent to her accident in February 1989 is that she was accepted as having a cervical spinal injury but the precise nature of that injury I find was never diagnosed. The only diagnosis made by Mr Jackson in September 1990 was that she had distinct localised tenderness at the C5/6 level with some spasm and quite marked restriction of both rotational and tilting movements to right and left. He noted that neurologically her upper limbs were quite intact. He went on to state that x-rays which were taken "clearly show that she has a degenerative C5/6 disc lesion with some associated changes in the factual joints." It is to be noted that Mr Jackson was not asked to give any opinion on any causal nexus but he did make a statement which I find significant, namely "There is little doubt that she has a marked cervical spine problem with the degenerative disc with an aggravation factor from the incident she described on 1 1.2.89." I take it from that statement that Mr Jackson is accepting that the degenerative changes shown in the x-ray of C5/6 pre-dated the accident. In his later report of 20 February 1992 Mr Jackson refers to that 1990 x-ray as clearly showing a C5/6 degenerative disc and his opinion is confirmed by the advice of Mr Hooker when he saw those same x-rays. 11 Both Mr Jackson and Mr Hooker noted that by the time the x-rays of January 1992 were taken there had been a considerable advance in that degeneration and Mr Hooker observed that the degeneration showed evidence of foraminal narrowing on both sides with osteophyte formation. In Mr Hadlow's report he gives a similar opinion to that of Mr Jackson when he says firstly, that her C5/6 spondylosis pre-dated her accident and that the accident aggravated the degenerative change at C5/6 level. It was his opinion that her ongoing pain was caused by the discogenic disease at C5/6. In the light of the foregoing opinions I turn to consider the opinion of Mr Hancock which has been put forward by counsel for the appellant as establishing a causal nexus between accident injury and present incapacity. The first point to note is that Mr Hancock advises that there is no co-relation between spine pain and degenerative disc or osteoarthrosis. However, further on in his report he states: "It is entirely reasonable that Mrs Fowlie's not unexpected C5/6 changes were accelerated by the effect of her accident if the disc in fact is to be included as a possible source of pain. " He summarised his understanding of the state of research that there was no epidemiological evidence to support degenerative disc changes as a cause of pain and it was on that basis that he discounted the opinion of Mr Hadlow. Insofar as his own assessment of the cause of pain Mr Hancock stated: 'The segmental blocks I have carried out are not specific to the joint but would include segmental muscles as well, but nonetheless I believe they point to the likelihood that she has a chronic joint disturbance to explain her pain." 12 The opinion of Mr Hancock, as I take it to be, is that degenerative changes to the cervical spine cannot be a source of pain. This certainly seems contrary to the opinion expressed by the Orthopaedic Surgeons who had previously examined the appellant. If Mr Hancock's opinion is to be accepted then it must be taken that the degenerative condition of her cervical spine, whether accelerated or not by the accident injury, cannot be the present cause of her incapacity. However, if one accepts the opinion of Messrs Hooker and Jackson, it is indeed the tenderness at the C5/6 level which is the source of her pain and that this is associated with the degenerative state of her disc at that level. In the latter case those experts affirm that the degenerative condition predated the event of the injury and both advised that the accident simply aggravated the change. Indeed the second series of x-rays taken in January 1992 showed that the degenerative change had accelerated considerably in the 15 months that had elapsed from when the first x-rays were taken. I find that Mr Hancock, whilst seeking to discount the opinion of Mr Hadlow, nevertheless does not himself put forward an opinion that the appellant is suffering from an injury caused in the lifting accident of February 1989. His belief that chronic joint disturbance may explain her pain without more cannot establish that causal link and indeed he does accept the possibility of disc degeneration as being a source of the pain, having supposedly discounted it as a matter of general principle. I find that the medical evidence establishes that this appellant had a pre-existing degenerative condition at the C5/6 location. There is no evidence to establish that indeed it was the C5/6 disc which was affected by the act of her being over extended in lifting the patient in February 1989 other than it being in the region of where her pain was being sourced from. Even giving the appellant the benefit of the doubt that it must be the area of C5/6 as it is the only area where there is anything out of normal, the opinion is that the lifting incident would only have aggravated or accelerated the degenerative change which was underway at the time. This Court has been called upon to consider this question on several occasions and has held consistently that the mere aggravation of a pre-existing condition is not of itself 13 the basis for continued entitlement once the actual effects of the injury sustained in the accident have resolved and that all that is left and enduring is that pre-existing condition. In this present case there is no evidence of any injury still remaining, indeed it may be difficult to overcome that onus when the initial evidence of the nature of the injury is somewhat imprecise. The onus is on the appellant to establish on the balance of probabilities that her present condition is attributable to, or causally connected with, the injury she sustained in the accident in respect of which she was granted cover. I find that there is no evidence which can persuade the Court that such is the case, indeed the evidence establishes the contrary proposition and in those circumstances I find that the respondent was correct to cease entitlements to the appellant. Accordingly then, this appeal is dismissed. DATED at WELLINGTON this 21 day of Aeri 1999 M J Beattie District Court Judge MMFowlie.doc(gm)