Ellwood v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH WELLINGTON REGISTRY Decision No. 059/2005 AI 489/00 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an application for leave to appeal to the High Court pursuant to Section 162 of the Act BETWEEN MICHAEL ERNEST ELLWOOD " i Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL Background [1] This is an application for leave to appeal against an 11 April 2002 decision of Judge M. J. Beattie on the grounds that the decision is wrong in law. [2] The issue before Judge Beattie was whether, by a decision of 11 October 1999, the respondent was correct to suspend entitlements to the appellant on the grounds that his current ongoing incapacity was not attributable to the personal injury by accident for which he had been granted cover. Judge Beattie reviewed the background and the evidence, especially the conflicting medical evidence, in some detail and then issued clear reasons for decision which read as follows: “[32] The appellant has suffered three accident related injuries to his neck or which have affected his neck. The first two accidents in 1993 and 1995 respectively required surgery and it is clear from the reports from Mr Bishara that the decompression surgery carried out on those two occasions were required to remedy the nerve root entrapment that had occurred at the C6/C7 levels on those two occasions. [33] The evidence is that following the second surgery in March 1997 he became painfree until the accident in 1998. 2 [34] Whatever may have been the actual circumstances of that accident, whether it was simply a jolting, or a fall which landed him on his buttocks, the fact of the matter is that he developed pain again in the region of his neck and shoulder. The radiological investigations undertaken for Mr Bishara disclose no nerve root compromise although there was some narrowing at two levels. From Mr Bishara’s perspective he could not discern the reason for the appellant’s continued pain. What he did identify however was the state of the appellant’s cervical spine which would have been its state at the time he suffered the first neck injury in 1993. [35] That state was identified and commented on by Dr Drewry and she considered that the osteophytes which were found at multiple levels were signs of degenerative disease which predated any incident of trauma. It is clear from the appellant’s evidence as well as the advice from Mr Bishara, that the two surgical interventions cured the injury aspects from the first two accidents and although the appellant presented with a spine which was showing clear signs of degenerative disease, nevertheless that condition was asymptomatic. [36] The incident in November 1998 did not cause any structural changes to the appellant’s cervical spine. X-rays and other investigations clearly identified no abnormality which would be attributable to some act of trauma, although those same investigations do disclose the continuing fact of the degenerative state of the appellant’s cervical spine. [37] After the third accident there is nothing which Mr Bishara considers could be improved by surgical intervention and it is at this stage that the appellant was just displaying the symptoms of pain in his left shoulder and neck. [38] Accepting as I do the findings and diagnoses of Mr Bishara that the appellant was displaying symptoms of age related degenerative spinal pathology before any incident of trauma, then it follows that the opinions that the Court has received from Dr Boroczyk and Dr Burry must be considered suspect as each of them proceeds to give their opinion of an injury related condition as being the appellant’s present diagnosis, having as its genesis the post-traumatic condition of the appellant’s cervical spine, including nerve damage. [39] In contrast, Dr Drewry and Professor Theis follow on from where Mr Bishara left off and note the degenerative and age related abnormalities in the cervical spine but a complete absence of abnormality which would be identifiable with any injury. Both come to the view that the circumstances of the injury were not severe, the two descriptions being ‘moderate’ and ‘trivial’. However, that accident, however severe it may have been, produced pain similar to the pain which the appellant had experienced after the two previous neck injuries which surgery had cured. [40] It is from that premise that Dr Drewry goes on to identify a regional pain syndrome as being the diagnosis, and Professor Theis is of the opinion that the appellant’s condition is most likely the result of the degenerative state of his cervical spine now becoming symptomatic. As he stated, if the appellant had had a normal neck at the time of the November 1998 accident he would not have expected him to have had any ongoing symptoms some three years after the event. 3 [41] In this appeal the Court has received four opinions from respected experts in the field and while those opinions are diverse it is necessary for the Court to look at the underlying reasoning given for those opinions and to determine how that reasoning may hold up against the circumstances or facts which the Court finds are incontrovertible. [42] In an appeal of this nature the onus of proof is upon the appellant and I find that, having regard to the opinions of Professor Theis and Dr Drewry and the reasoning for those opinions, the contrary opinions expressed by Dr Burry and Dr Borowczyk and the reasoning they have given for their opinions, do not persuade me that on the balance of probabilities, the appellant’s condition, as it presented at the time the respondent made its decision, was attributable to and caused by the injury that he suffered in November 1998. [43] On that finding the appellant cannot succeed and accordingly this appeal is dismissed.” The Application for Leave to Appeal [3] An application for leave to appeal was filed for the appellant on 29 April 2002 but it took until mid-January 2005 for submissions to be filed. However, neither party makes anything of the delay aspect. [4] It is submitted for the appellant that the learned District Court Judge erred in law in the following respects: [a] by holding that the onus of proof in relation to the termination of benefits under the Act rests on the appellant; [b] by discrediting, and therefore failing to take into account, the evidence from Drs Borowvzyk and Burry to the effect that the appellant’s condition is still causally linked to personal injury; [c] by giving preference to the reports provided by the respondent’s experts without any rational justification; [d] by failing to take into account the effects of previous accidents suffered by the appellant; [e] by failing to take into account the strong causal nexus between the accident suffered by the appellant and the onset of the appellant’s pain. [5] Section 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides: “162 Appeal to High Court on question of law (1) A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.” [6] In order for leave to be granted, the appellant must indicate that he is dissatisfied with the decision appealed from and must also identify an error of law involved in the proposed appeal; refer P & O Services (NZ) Limited v Accident 4 Rehabilitation Compensation Insurance Corporation (unreported) High Court, Wellington Registry, AP43/98, 30 July 1998, Gendall J. [7] The point of law must be capable of bona fide and serious argument; refer Impact Manufacturing Limited v Accident Rehabilitation and Compensation Insurance Corporation (unreported), High Court, Wellington registry, AP266/00, 6 July 2001, Doogue J. Reasons for This Decision [8] It seems to me that Judge Beattie’s approach to the onus of proof as summarised at paragraph 42 (set out above) of his decision conforms with the law as expressed in a number of decisions referred to by counsel in this matter. Both Mr C J Hlavac for the respondent and Mr P Sara for the appellant referred to such cases as Jackson v ACC (AP 404-96-01, 14 February 2002, per Priestley J), Wakenshaw [2003] NZAR 590 per Priestley J, Cochrane v ACC ((CIV) 2003-485-2099, 2 June 2004 per Miller J), and Gray v ACC [2003] NZAR 289 (per France J. While referring to the onus of proof as being on the appellant, Judge Beattie referred to the medical evidence adduced and concluded the evidence did not persuade him, on the balance of probabilities, that the appellant’s condition at the time the respondent made the said decision (11 October 1999) was attributable to and caused by the November 1998 injury. It seems to me that the issue of the onus in cases such as that before Judge Beattie is settled law, and has been given considerable and substantive consideration by the High Court in the cases cited. Accordingly, for present purposes it does not give rise to an issue of law capable of bona fide and serious argument. [9] In my view, in preferring the evidence of Mr Bishara, Dr Drewry and Professor Theis to the evidence of Drs Borowczyk and Burry, Judge Beattie made a finding of fact which is not capable of challenge on appeal to the High Court. Judge Beattie provided clear reasons why he so preferred that evidence. As can be seen from the extracts I have set out above from Judge Beattie’s said decision. It also shows that Judge Beattie gave full consideration to all the medical evidence. Judge Beattie took into account the inconsistencies in the expert medical evidence and made clear and reasoned decisions. It seems to me that he followed a proper reasoning process and has reached a rational conclusion as to why he preferred the said evidence of Mr Bishara, Dr Drewry and Professor Theis. [10] It seems to me that Judge Beattie carefully took into account the effects of previous accidents suffered by the appellant and gave careful consideration to the issue of the strength of any causal nexus between the accident suffered by the appellant and the onset of the appellant’s pain. He did not disregard a temporal link as a factor to be taken into account. He clearly noted that the appellant developed pain following the accident in 1998 but, rather than finding that such pain was symptomatic of injury, he found from the evidence that the pain had most likely arisen as a result of the degenerative state of the appellant’s cervical spine now becoming symptomatic. He covered this in his paragraph [40] set out above. The existence of a temporal link between accident and the onset of pain is not necessarily indicative in determining the cause of ongoing pain several years after the date of the accident. [11] The High Court has recognised that there will be situations where an accident triggers an underlying asymptomatic condition causing that condition to become symptomatic (i.e. resulting in an onset of pain). However, unless the continued pain can be shown to be causally connected to the accident rather than to the previously 5 asymptomatic degenerative condition, a claimant will not be entitled to ongoing benefits under the Act - refer McDonald v ACC (High Court Christchurch, AP 2/02, 20 May 2002 per Panckhurst J). [12] In my view none of the submissions for the appellant herein give rise to a point of law capable of bona fide and serious argument in this case. I hereby refuse the application for leave to appeal. DATED at WELLINGTON this 7th day of March 2005 _____________________________ Judge P F Barber District Court Judge Wellington Ai 489-00.doc(aw)