Warren v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 204 /99 (Appeal No. DCA 195/98) UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NICOLA CAROLE WARREN Appellant AND ACCIDENT REHABILITATION -. -.- AND COMPENSATION INSURANCE CORPORATION Respondent HEARING at WELLINGTON on the 9th and 22nd day of December 1998 DATE OF DECISION 23rd July 1999 APPEARANCES Mr R G Warren - father of appellant Mr A D Barnett, counsel for respondent RESERVED DECISION OF JUDGE P F BARBER Regrettably, this matter became delayed due to the need to type the evidence of an expert medical witness (Mr C Hoffman) from tapes made at the hearing before me. On 26 March 1998 there was a hearing before the Review Officer regarding the 25 January 1998 decision of the respondent declining the appellant's claim for cover and treatment expenses for a spondylolisthesis submitted to have subsequently developed as a result of a 1985 fall from bars in a playground. The claim for treatment expenses was lodged in conjunction with an application for entitlement for private hospital expenses relating to spinal surgery. I note that the hearing before the Review Officer seemed to pivot on evidence from the appellant and her father, 2 but the matter was reheard before me based on the expert medical evidence of the said Mr Hoffman. The principle issue is whether the appellant has suffered an "accident". I have set out below the definition of "accident" in s.3 of the Act The Decision of the Review Officer The Review Officer's decision of 16 April 1998 is comprehensive and lucid. It very helpfully reviews the medical reports then available, the submissions of each party, provides full reasons for decision, and concludes: "To summarise the issues, I find that the spondylolisthesis has not, on the balance of probabilities, been determined to be a consequence of the reported fall in 1985, nor is there evidence linking the condition to any other significant event which satisfies the definition of accident under the Act. I find the development of the spondylolisthesis to be a gradual process, however I also find there to be no cover under section 7 of the Act. In terms of section 10 therefore, I must find there to be no cover under the Act for Ms Warren's spondylolisthesis. -. -. . The review is unsuccessful." The Relevant Sections of the Act Section 3 of the Act defines "accident" and "personal injury" as: "3. Interpretation - In this Act, unless the context otherwise requires - 'Accident' means - a) A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events; or ... 'Personal injury' has the meaning assigned to it by sections 4 and 8 of this Act: Section 4 of the Act states in part; "4. Definition of 'personal injury' - (1) For the purposes of this Act, 'personal injury' means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by section 8(3) of this Act." Section 8 of the Act states in part; 3 "8. Cover for personal injury occurring in New Zealand - (1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the Ist day of July 1992 in respect of which there is cover under this Act (2) Cover under this Act shall extend to personal injury which - (a) Is caused by an accident to the person concerned; or .." Section 10 of the Act states in part; "10. General exclusions from cover - (1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is - (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury covered by this Act. The Submissions for the Respondent -.-. -- It is helpful to summarise Mr Barnett's submissions for the respondent Corporation and then consider the essence of the evidence adduced before me from Mr Hoffman. Mr Barnett's submissions were prepared and tendered prior to Mr Hoffman's viva voce evidence. I do not think it is helpful to become immersed in the series of medical reports written in connection with this dispute except as they fit into Mr Barnett's submissions. In referring to the background of this matter Mr Barnett records that the appellant lodged her claim for cover on 21 October 1997 giving the date of injury as 16 October 1985 and describing the injury as "spondylolisthesis". Mr Barnett refers to further investigation of the claim showing that the claimed causative event was not confined to the accident in October 1985 and that the appellant had suffered intermittent symptoms of spondylolisthesis associated with stress over a number of years. Mr Barnett refers to the Review Officer's decision, which I have already covered, and to the respondent Corporation declining cover, in a letter dated 25 January 1998, both for personal injury occurring as a specific event, or series of events, and pursuant to s.7 which covers gradual process injuries occurring in the course of employment. Frankly, it is not clear to me why there has been any reference to s.7 as there is no suggestion whatsoever before me that the accident or related injuries arose in the course of employment. At material times, the appellant was an 8 year old school girl (but, often, referred to as 12 years of age at the time of the 1985 fall) and she is now aged about 20. The only relevance of employment is that she had some part-time jobs out of school hours. The reason that there seems to be no dispute that the appellant, as a young school girl, experienced the accident of falling off a bar in a playground on 16 October 1985, must be that at the time she lodged a claim for accident compensation and cover was 4 accepted in respect of the injuries suffered in the playground, namely, abrasions and lacerations. Mr Barnett states, inter alia: "On investigating the claim lodged on 21 October 1997, it was apparent that subsequent events were claimed as causing or contributing to the spondylolisthesis for which cover was now sought. Thus the claim of 21 October 1997 is properly regarded as a fresh claim for an injury not previously covered, namely, spondylolisthesis." Having had the benefit of hearing Mr Hoffman's evidence (given subsequent to those submissions of Mr Barnett) it may be simplistic to state that subsequent events are claimed to have caused the spondylolisthesis and to regard it as a fresh claim for an injury not previously covered. However, I agree with Mr Barnett that the central issue in this appeal is whether the spondylolisthesis, for which cover is now sought, was caused by an accident, namely, "an event or series of events that involves the application of a force or resistance external to the human body" (as defined in s.3 of the Act set out above), or whether the injury was caused by a gradual process. Mr Barnett states, correctly, that at law a distinction is drawn between a single accident or series of specific ascertainable accidents, on the one hand, and a continuous process on the other, and it is settled law that resulting injury or incapacity from the first category is injury by accident but the second category is not - refer Roberts v Dorothea Slate Quarries Co. Ltd [1948] 2 All ER 201. It is also helpful to note Mr Barnett's reference to the statement of Gault J in Accident Compensation Corporation v E [1992] 2 NZLR 426, 433: "... it will be a matter of fact and degree in any case as to whether an occurrence not confined to a short time can be said to constitute an accident (or series of accidents) rather than a process." I agree with Mr Barnett's submission that in the present case it is a question of fact and degree whether the spondylolisthesis suffered by the appellant was caused by an event, or series of events, or by a continuos process. Also, there is a further qualification, in terms of the s.3 definition of "accident", that the event or series of events must involve "the application of force or resistance external to the human body". He suggested, for example, that actions of twisting or stretching may not necessarily involve an external force or resistance and would thereby be excluded from that further qualification to the definition of "accident". In my view, that qualification is not a problem on the facts of this case but, in any case, the definition of "accident" must require a fairly liberal interpretation in terms of the philosophy of the Act. As I indicate below, despite the medical reports available prior to the hearing before me - which pivoted on the evidence of Mr Hoffman, I take the view that the injuries in question flowed from both the specific event of the playground fall in 1985 and / or from a series of events since then. Those subsequent events involved the application of a force or resistance external to the human body such as movements in hockey, 5 which resulted in further personal injury culminating in surgery in late 1997. I do not think it is appropriate to regard the surgery as flowing from a gradual debilitating process taking place after the specific event of the fall from bars in a playground. It seems to me that the playground fall led to a type of fracture and each time certain events happened, e.g. certain hockey movements, there was a further increase in that fracture which led to the spine and body becoming out of kilter as Mr Hoffman described it to me in great detail with spine/ bone exhibits at the hearing. It may well be that the extent of injury which needed surgery actually happened in the 1985 playground fall, but did not get properly diagnosed until 1997. An important submission of Mr Barnett is that from the medical opinion it is not established, on the balance of probabilities, that the single event in 1985 was causative of the spondylolisthesis now suffered by the appellant. In the light of the oral evidence given before me by Mr Hoffman that is a moot point, but I now set out most of the supporting detail from Mr Barnett regarding that submission which also traverses salient portions of medical reports existing prior to the hearing before me. "Mr Hoffman, orthopaedic surgeon, in his letter of 25 May 1998 says of the 1985 fall: 'This fall is unlikely to have caused a 'traumatic spondylolisthesis' which is a high -. .. . - energy injury sustained to the lumbar spine. In this injury, fractures through the pars interarticularis is caused at the time of the injury and there is a separation of the fragments. This injury typically occurs in falls from a great height and from motor vehicle accidents, etc. It is however conceivable that the fall that Nicola sustained could have been the triggering fall which began a series of injuries which culminated in Nicola sustaining a fracture of the pars interarticularis'. That it is 'conceivable' that the fall triggered the spondylolisthesis is not sufficient to establish the case on the balance of probabilities. Mr Bossley, orthopaedic surgeon, in a letter dated 12 December 1997, stated: 'It is conjecturel whether the playground incident was related'. In his letter of 13 May 1998 Mr Bossley elaborates by saying: 'My sentence 'it is conjecturel whether the playground incident was related' was taken out of context. The possibility cannot be discounted and a strain of that area could set in train the later stress factors. An acute fracture of the pars is very rare and would cause much more serious symptoms at the time. It is also possible that the weakness in the pars existed prior to the fall and was exacerbated at the time of the fall.' Again, this opinion falls short of establishing on the balance of probabilities that the playground incident triggered or was otherwise causative of the spondylolisthesis. 6 Subsequent to the accident in 1985 there is evidence of the appellant suffering back symptoms over a period of time. Mr Simmons, orthopaedic surgeon, in his report of 19 August 1997 wrote: Nicola has been aware of intermittent back pain since she was quite young. She is not sure when it first took place, perhaps somewhere between 12 and 14 years. The back pain has been intermittent, she has been aware of certain things such as hockey seeming to produce pain. More recently the problem has become a little more intense and she had been getting pain most days, the pain is made worse by extension exercises which is something she has been taught to do over the years. She has seen various practitioners for intermittent back pain over the years...' Mr Hoffman, orthopaedic surgeon, in his letter of 17 October 1997 wrote: 'She [Nicola Warren] has a history of injury at age probably 12 when she fell from climbing bars and injured her back. She had quite severe pain at the time and was seen by a doctor and the injury is documented. She didn't have an x-ray unfortunately, but since then has had intermittent pain through her teenage years. She was quite a vigorous sports person and over recent months has noted increasing pain felt in the law back. She does have some cramping down in her -.-. .- legs when she stands for long periods. She doesn't have any paraesthesia or numbness. She doesn't notice any weakness' And Mr Bossley in a report of 12 December 1997 wrote: 'She fell in a playground as a child and there may have been an injury to her thoraco-lumbar spine at the time. However she has played extensive sport since then and has had only occasional intermittent pain.' And The aetiology of this sort of spondylolisthesis is still in doubt but even though she might have a minor congenital abnormality of the lumbar spine, I know of no recorded cases of pars defect being present at birth. It is conjecturel whether the playground incident was related, but I think of more significance are the repeated minor injuries over several years associated with intensive sporting activities. Whatever is the specific cause of incident, I think she should fall under the umbrella of ACC and be accepted. I understand she is to have a spinal fusion with instruments. In the past this type of spondylolisthesis, which is due to a stress fracture of the lower vertebra has been accepted and I think this is the correct decision.' Dr T.B. Brown, the Corporation's Branch Medical Officer considered the medical opinion and in a memorandum dated 22 December 1997 wrote: 7 The specialist's report does not give clear support for present spondylolisthesis being due to single event described fall of October 1985 or single event strain of July 1995. Specialist considers is most likely due to repeated minor injuries over several years associated with extensive sporting activities. Unfortunately this does not satisfy ACC Act criteria as a specific event, series of events or gradual process due to employment.' Dr Brown provided an explanation of the origins or causes of spondylolisthesis from the medical literature, a copy of which is now attached. In 50% of cases the aetiology is isthmic, that is, uncertain or non specific, but to the extent it is acquired stress is almost certainly the factor. Mr Hoffman on 22 April 1998 wrote in a letter to its review officer: '... you are quite right in summarising that the spondylolisthesis is not as a direct result of the reported fall in 1985. It seems to me a fine line that you draw, in determining that it is not covered under the Acts, because the only way gradual process injuries can be covered is if they are employment related. Perhaps we -. .. .- need to clarify where stress fractures fit into coverage under the Act. In the circumstance where a fracture has definitely occurred but no significant external force can be identified as result in it. It would concern me if your interpretation game resulted of the medical literature and its application to the ACC Act was to become Case Law.' Mr Hoffman reported again on 25 May 1998. He wrote: The usual presentation of a pars interarticularis stress fracture is of a series of repeated incidents which cause hyperextension or which apply hyperextension force to the lumbar spine. This occurs commonly in gymnastics for instance and frequently occurs in other activities that involve hyperextension such as hockey when the spine is extended during the swing phase of striking the ball. It is clear then that Nicola has sustained a series of events, that being her hockey game and perhaps initiated by her fall that have resulted in her developing a pars interarticularis stress factor. These clearly defined incidents do not fit the criteria of gradual process as they are specific identifiable events incorporating an element or degree of suddenness. Nicola therefore has been subjected to a number of these incidents or events i.e. her hockey games which have resulted in her developing a stress fracture. Given that she was not reporting pain associated with other activities at this time, it would seem that the hockey games themselves in the particular action that she used during her hockey in her sustaining a series of events which applied external forces to her lower back. The stress fractures which resulted could have been a result of a single accident, but more likely to be a result of a series of incidents. The fall from a playground implement may have been the precipitating incident.' 8 The medical opinion discloses that the symptoms of back pain first came on at an uncertain time, but around the age of 12 to 14 years, that is, well after the accident in 1985. The most recent orthopaedic opinion has tended to give focus to playing hockey as the source of symptoms. However the earlier opinion speaks of intermittent pain over the teenage years without confining the incidence of symptoms to hockey. But even if it were the case that the stress causing pain and the spondylolisthesis was exclusively associated with playing hockey, that does not mean the cause is a series of events rather than a continuous process." Mr Hoffman made it clear to me, in evidence, that he had never thought that the appellant suffered a traumatic spondylolisthesis but that her playground fall led to a stress fracture which in time led to spondylolisthesis. Obviously, to meet the requirements of the definition of "accident" in s.3 of the Act it needs to be shown, on the balance of probabilities, that the injury was caused by a specific event or series of events, i.e. by a specified activity, such as playing hockey, which results in personal injury. There is no point in the appellant showing that the personal injury flowed - . -. . - from a gradual or continuous process in this case because there is no suggestion that the injury is a work injury. Mr Barnett submits that the fact that the causative activity is identifiable (as the 1985 playground fall) does not resolve the issue for the appellant. Accordingly, Mr Barnett puts the position as that the appellant experienced intermittent back pain over a number of years subsequent to her playground fall and, commencing around her age of 12 to 14 years, these symptoms became of increasing intensity as time progressed and a diagnosis of spondylolisthesis was made in 1997 when the appellant was aged 19 years. Mr Barnett submits that whether these events amount to an accident or a continuous process is not a medical question but a question of fact and law. I agree. As I have said in other Accident Compensation cases, the Court needs to stand back and look at the evidence overall, undeterred by the technicalities and peculiarities of medical viewpoints, and come to a commonsense conclusion on the balance of probabilities. Naturally, Mr Barnett submitted for the respondent Corporation that it has not been so established that the appellant's injury has been caused by an "accident" as defined by s.3 of the Act. That is the essence of the respondent Corporation's opposition to cover in this case. The viva voce evidence of Mr Hoffman at the hearing before me Mr Hoffman gave detailed evidence before me and was comprehensively cross- examined. He had with him a model of a spine to which he frequently referred. Essentially, as I understood Mr Hoffman's evidence, a stress fracture called a spondylosis must have come about from the appellant's playground fall in 1985. That fracture is between a set of joints in the spine (between the articulating lumbar vertebrae). Once that area fractures, it fails to heal because the fracture communicates with the joint above. Mr Hoffman is satisfied that there is no question of any congenital aspect to this case. After the playground fall there was a losis or spondylosis or pars fracture in the spine structure. Mr Hoffman explained that once there is such a fracture the vertebrae is allowed to slip forward and that condition is what is meant by spondylolisthesis i.e. "spondylo" means "spine" and "listhesis" means "movement". Mr Hoffman explained that a traumatic spondylolisthesis is where someone sustains severe trauma and the whole bone moves in one incident. The fracture occurs in the spine structure and there is an immediately displacement of the vertebrae; but that is a high impact injury, which is rare. There seems to be doubt whether the appellant sustained a spondylosis or a spondylolisthesis when she fell from the playground equipment in 1985. I understood from Mr Hoffman that one can expect a spondylosis fracture to heal but, if the fracture line passes up into the joint above and joint fluid gets into the fracture line, it fails to heal. Mr Hoffman pointed out that this type of condition would not be diagnosed by a general practitioner and it is an injury which, if one does not know to look for, one will not find. Mr Hoffman understood that although the appellant had intermittent episodes of backache which she was able to cope with, once she began playing hockey, her back problems heightened. This was because the swinging of a hockey stick created torsion flexing and extension of the spine. That aggravated her spondylosis and, at some point, it became a spondylolisthesis. Mr Hoffman referred to her having attended her general practitioner doctor in 1995 with backache following a hockey game, but to the true nature of the injury not being identified. I can well understand his evidence that hockey is a sport which has a twisting and extension flexion activity which would promote this fracture which the general practitioner did not diagnose (i.e. the spondylolisthesis condition) until an x-ray was taken in late 1997. Mr Hoffman explained, inter alia, that each time the appellant would have swung her hockey stick she created a hyperextension and "there was an incident occurring which was promoting fracture". The reason the x-ray was taken in 1997 is that the appellant, by then, had a lump on her back. Mr Hoffman explained that occurred because her entire spine had slipped forward an inch and a half and left a prominence in her back, being the step where the slippage had occurred. In simple terms, I understood Mr Hoffman's evidence to be that the appellant suffered a stress fracture from the playground fall in 1985 (or a "fracture initiation") which then failed to heal and subsequent accidents, caused by hyperextension against force (e.g. swinging a hockey stick at a ball or hitting the ground with a hockey stick), created slippage. That slippage led to the ultimate condition shown by the lump on the back. That showed the need for the major surgery to reconstruct part of the appellant's spine structure. Indeed, when Mr Hoffman came into the picture in about late 1997 the situation was an emergency one, because 3/4 of the appellant's vertebrae had slipped forward onto vertebrae below. This created a 10 guillotine effect on nerve roots causing leg pain (because of the entrapment of those nerve roots) and making her bladder and bowel susceptible to damage. Happily, the 5 hour surgery undertaken by Mr Hoffman, which must have involved a very high degree of skill, seems to have resolved matters by fusing the vertebrae back to the spine and decompressing the nerve roots. As I understood it, the area which had cracked and slipped was pushed back into position, somehow, without damaging nerve roots and screwed back into position. One can understand that the appellant must have been experiencing intense pain because nerves in her back were being squashed by the overlapping of two bones. In short, the appellant had a 75% slippage forward from her spine, compared with a 25% slippage for people usually suffering that problem, so that her whole spine sat forward. There was, of course, much cross-examination as to when and how the subsequent spondylosis (subsequent to the playground accident) could have occurred and not been detected and whether it would have resulted from other episodes of external force. Mr Hoffman thought that the condition could have developed from the hockey stick swing, which involves an external element applying additional force to the body other than that generated within the body itself. -. .. .- In the course of his cross-examination, Mr Hoffman stated that he had never thought that the appellant sustained a traumatic spondylolisthesis at the playground fall, but that the fall must have initiated the stress fracture which led to the spondylolisthesis. Mr Hoffman made it clear that the appellant's condition is not a disease, nor a congenital matter. Also, Mr Hoffman considered that if someone has a hockey stick in her hand and twists, then external force is conveyed from the hockey stick to the body to the back, and then an additional force occurs. Due to the slippage of the vertebrae and the coming forward of the spine, the appellant's body became out of kilter. Mr Hoffman stated that this type of fracture has never been found at birth. Reasons for conclusions It would be easy to be dismissive of the appellant's situation on the basis that it could be regarded as having arisen from a gradual process which is not work related, and is a gradual process which is a consequence of personal injury (in 1985). However, it seems to me that the evidence I heard from Mr Hoffman is pivotal. It was much easier to understand his evidence, explained by him in relation to an exhibit of a spine, than it has been for me to summarise it above. I record that Mr Hoffman is clearly a witness of complete integrity and great expertise in his field. In my view, when one stands back and looks, objectively, at the overall evidence, one sees the situation of an 8 year old girl falling from parallel bars in a playground and injuring her back by some type of fracture or stress fracture. On the balance of probabilities, it must have been that that fracture did not heal, probably for the type of reasons given by Mr Hoffman. Some activities over the next 12 years or so of the appellant's teenage life have, unknown to her, been events which involved the 11 application of a force or resistance external to her body. These have resulted in further personal injury to her by moving her spine forward, or causing slippage of vertebrae, due to the weakness of her previous fracture or stress fracture. I do not think it is appropriate to treat that slippage, from time to time due to a particular event or events, as a gradual process which would preclude this situation from cover. The injury, which required surgery, was such that it must have been caused by accident. Had there not been further accidents, then it is likely that the slippage of the vertebrae would not have occurred or would have occurred to a far, far, less degree. It is very likely that the further accidents took place in the course of playing or practising hockey, but there could have been other similar type situations in the course of the appellant's life. Hitting a hockey ball or hitting the ground with a hockey stick, or hitting or bumping into another person at hockey or wherever, is an event involving the application of a force or resistance external to the human body and, very probably, resulted in personal injury by creating vertebrae slippage. It would be quite wrong to preclude cover in this case on some such rationale as that the further events were merely aggravating a continuing or gradual slippage process. Indeed, the injuries diagnosed in late 1997 may have arisen in the 1985 playground accident but been borne by the appellant and not become apparent in the meantime. -. -. .- My view is that, looked at overall, it is not proper to regard this case as involving a gradual process injury rather than a series of events of personal injury. I appreciate that some of the medical evidence, even some of that from Mr Hoffman, can be favourably related to the respondent's stance. However, it is for the Court to view the situation overall, in terms of fact and law, and make a commonsense finding on the balance of probability. Accordingly, I find that the appellant has established that her injury has been caused by an accident, or accidents, as defined in s.3 of the Act. She is entitled to cover for personal injury caused by an accident or accidents to her, and there is no valid reason to exclude that cover. The appellant is entitled to cost and disbursements. She was represented by her father who, while a professional person, is not a lawyer. He has clearly put a vast amount of time into case preparation and presentation, although there was much repetition. Special fees must have been incurred from Mr Hoffman. I would not expect difficulty from the respondent in agreeing upon an appropriate costs and disbursements figure between the respondent and the successful appellant, but I reserve leave to apply if the parties cannot resolve that aspect of the case. Judge P F Barber District Court Judge Wellington dca19598.doc(rd)