Lochhead v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 57/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 87/93 / 04 4 7 BETWEEN NOEL EDWARD LOCHHEAD of Waimate Appellant (Appeal No. DCA 264/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS This appeal was originally set down for hearing at Greymouth on 19 February 1996 but was adjourned and the parties have now requested that I issue a decision on the papers. I have received submissions from the appellant and from Ms P J Zumbach on behalf of the respondent. The issue in this appeal is whether the respondent was correct in its notification to the appellant on 26 November 1992 that it would no longer pay compensation to the appellant in respect of a back injury he suffered on 21 March 1987. The appellant at that time suffered back pain after cutting wood. A subsequent back questionnaire form completed by the appellant stated that his injury had come on gradually while cutting firewood over a period of three years and also as a result of a specific event on 21 March 1987. The respondent requested information from the appellant's General Practitioner, Dr N Hassan, his report of 3 June 1987 stated: "I have been treating this man since 21.4.87 but have records dating back to 1.7.80 (which contains no reference to back troubles). When seen on 21.4.86 he 2 said he had suffered low backache for 12 months and an x-ray revealed some minor degenerative changes at the upper level of L4. On 24.11.86 he had a recurrence of back pain with radiation down the right leg. It was regarded as a right S1 joint strain and treated with Norflex and... On 3.4.87 I saw him and he told me he had developed back pain over the right sacroiliac ... when cutting firewood on 21.3.87 and when seen again on 10.4.87 had not improved but developed sciatica and numbness down into the right leg. He was treated with physio, Norflex and panadol. He was seen again on 16.4.87 and had improved but it worsened again and I saw him subsequently on 11.5.87 and 13.5.87 and he is off work on Surgam BD and Norflex. Clearly he has a disc injury at LA-S with the likelihood of a slow recovery. He also suffers from work related tennis elbow (right) related to capacity." As a result of that report the respondent notified the appellant that his claim was declined because it did not consider he had suffered personal injury by accident. As nothing further was heard from the appellant at that time, the file was closed but was reopened in October 1989 when the appellant filed an application for review of the June 1987 decision. The appellant stated that his lower back pain was getting progressively worse. The respondent accepted the claim and arranged for the appellant to be examined by Mr Binns, an Orthopaedic Surgeon whose report of 11 May 1990 states: "This 42 year old former building contractor was seen today with a request for a report for consideration of compensation under Sections 78 and 79 following an accident on 21/3/87. On that day he was cutting firewood and had to abandon the job because of steadily increasing pain in the back. This became so bad he could hardly move and the only comfort he could get was while lying on the floor. The pain was confined to his back at that stage and he consulted his general practitioner in Blenheim who organised some physiotherapy and put him on analgesics and antispasmodics. The physiotherapy did not seem to help. In fat it tended to aggravate the problem. Around that time he also developed symptoms of pain and a number feeling in the right leg. This tended to go down the front of his thigh and the lateral side of his lower leg but did not reach his foot. Gradually with reduced activity he settled down but whenever he attempted to do any heavy task, or even if he did not attempt any heavy work the pain would return spontaneously. At about the time these events were taking place he also had trouble with his right elbow and had been referred to an orthopaedic surgeon in Nelson. He was subsequently operated on there by Professor Alldred to whom he also related his back problems. As a result of this he apparently tried a brace for a short period but found this too uncomfortable to continue. 3 Since that time he has had the back pain as described above on and off and this has precluded him from getting back to any work in the building trade. Pain can also occur quite spontaneously and he will occasionally, especially when the back pain is bad, get the symptoms in his right leg. Less frequently he will have similar symptoms in the left leg. He hasn't been able to find any work for the last three years and is now on a sickness benefit. He has moved down to Pareora to live and has not consulted any doctor about his back problem here. Indeed he seems to have had no medical involvement in the back problem for about three years. When I asked the reason for this he said that the physiotherapist in Blenheim had advised him that probably nothing could be done about this back problem. Mr Lochhead had had back pain from time to time before the incident described in March 1987 and had even had some of the leg symptoms as well. However, episodes previous to the incident described were always milder and would tend to settle down with a bit of rest. Otherwise Mr Lochhead gives no history of serious illnesses or operations. On examination he looks in good general health. He walks without apparent limp or discomfort. On examining his spine his posture was normal today and he got and off the couch without any apparent discomfort. In testing the movements of his lumbar spine I found that there was a considerable amount of muscle spasm in the erector spinae muscles in the lower part of the lumbar spine. At this level there seemed to be a minimal amount of movement, especially in flexion. Overall, when flexing his spine, the movement was near normal except for the lower lumbar region which was kept fairly rigid. Extension was a little uncomfortable at its extreme as was lateral flexion in both directions. There was no bony tenderness over the spine or pelvis. Straight leg raising was to more than 90 on both sides without apparent pain. I could not find any muscle wasting or weakness in either leg and in particular extensor hallucis was strong on both sides. All his tendon reflexes were quite difficult to elicit. Both knee jerks were. just present with reinforcement and as far as I could tell they were equal. I could not elicit either ankle jerk. Apart from this I could not find any neurological abnormality in either leg and in particular his sensation appeared normal. Circulation was normal. There is no sign of any widespread musculo-skeletal disease. X-rays of his lumbosacral spine done today inlcuding (sic) oblique views show well preserved disc spaces throughout the lumbar spine. There are very small osteophytes at the margins of the L4 vertebral body anteriorly. At this stage I can't definitely exclude a spondylolisthesis at L5 though there is certainly no forward shift. I will await a radiological opinion on the films. I would like to obtain his old records from Nelson and will call Mr Lochhead back when this information is to hand." In June 1990 the appellant was paid the appropriate award under section 78 and the sum of $5,000 under section 79 of the Accident Compensation Act 1982. The file was then closed but was reopened on 26 May 1992 when the appellant lodged a C15 certificate which indicated deterioration. The respondent then arranged for the 4 appellant to be examined by Mr D Jones, an Orthopaedic Surgeon whose report of 10 November 1992 states: "I reviewed this man at your request on 6 November 1992 and had the opportunity of reviewing the reports previously provided by Mr Peter Binns of Timaru. This man states that he has not effectively worked since about 1986. His injury sustained to his back while chopping wood on the 21 March 1987 resulted in a presentation to Dr Hassan and I noted that he considered that he only needed a two week period off work at that point. For some reason this man is now on an invalids benefit because of recurring problems with his low back and right elbow which has been decompressed surgically for a relatively minor soft tissue problem, a so-called tennis elbow. He claims to have recurring episodes of mechanical back pain which in effect totally dominates his lifestyle. I note that he had a lumbar myelogram at Timaru performed in May 1990 which was absolutely normal and certainly at examination today he was able to sit comfortably, move freely. He certainly did not demonstrate nay (sic) abnormality in his low back. He was able to touch his toes effortlessly. He could extend without difficulty. There was no specific local tenderness in his low back. Neurological examination of his lower limbs revealed only mild hamstring tightness. His reflexes were difficult to elicit but there was certainly no major abnormality either in terms of motor power, sensory function that I could identify. Xrays St. George's Hospital 6 November 1992 were within limits of normal. Opinion: This man has an ongoing disability from a relatively trivial injury in 1987 which is quite out of proportion to the magnitude of injury and I am unable to identify why he is on an invalids benefit. I think in the absence of a working diagnosis, with normal xrays and a normal myelogram the only possible pathology would be posterior facet arthritic change which could only be seen on a Ct scan. I do not think there is any indication to proceed with that at this point. I certainly cannot identify any disability in terms of Section 78 and cannot see any grounds for increasing the previously awarded 10%." When it received Mr Jones's report the respondent notified the appellant on 26 November 1992 that as his back then appeared to be normal no further compensation would be payable, the appellant applied for a review of that decision. The review officer requested a further report from Mr Jones who stated on 22 February 1994: 5 "Thank you for your letter of the 17 February 1994. As I indicated in my report of the 10 November 1992 no structural injury could be identified as a cause of this man's ongoing back pain problem. The quickest way to identify whether there had been a structural injury would be to proceed with a Ct scan and to my knowledge this has not been performed A diagnosis of a chronic pain syndrome merely indicates that this man has ongoing back pain and when it is not associated with an obvious structural cause one must accept that there are significant psychosocial aspects contributing to the disability which may well be the case here. A Ct scan would be the most effective way of determining whether or not this man had a problem specifically related to a twisting injury while chopping wood on the 21 March 1987." The review officer then referred the appellant for a CT scan as suggested by Mr Jones with the result that Mr Jones again reported on 8 July 1994: "This man underwent a Ct scan examination at St. George's Hospital on the 7 July 1994. Unfortunately because of a machine failure only the L5 S1 and L4-5 level was scanned. This scan has shown a minor congenital abnormality on the first part of sacrum. The facet joints, contents and canal at the lumbo-sacral junction are normal. The 4-5 level shows normal structure, canal and contents are normal. The facet joints at 4-5 show minor early degenerative changes. Opinion: This man's recurring mechanical back pain problem is possible related to a minor congenital abnormality on the first part of sacrum. There is certainly no significant structural change which one could attribute to injury. I have read the report provided by the Burwood Musculoskeletal Unit. A chronic pain syndromes in the absence of any structural lesion usually have major psychosocial factors in the background which compound and exaggerate the pain phenomena. There is often a significant depressive element in patients presentation. On reviewing his records, a mechanism of injury which was low, the absence of structural change I really do not feel this man is the ongoing responsibility of the ACC and he is more correctly on a sickness benefit." The review officer heard evidence from the appellant who stated that his major problem was with his arm but that he had trouble with his back which he claimed was caused from working in the building industry. He complained that the problem had gradually become worse over the years and that the pain became difficult to bear. The appellant submitted a report from Dr Weston which confirmed the 6 presence of pain and that the appellant had stated that he had preferred to continue working but had found he was unable to carry out joinery work. The review officer also referred to a report from Mr N Kendall, a Clinical Psychologist at Burwood Hospital who stated on 23 December 1993: "Medical examination confirmed the diagnosis of chronic back pain syndrome. On examination of his lumbar spine he was tender over L4-5 and L5-S1 region. He had some limitation of mobility and pain at extremes of movement. There was no leg length discrepancy and his straight leg raising was to 90 degrees bilaterally with no pain. He was noted to have tense erector spinae muscles. He has apparently had a normal x-ray and MRI scan in the past... After discussion our Assessment Team felt that he might benefit from a place in the three week Pain Management Programme looking at education, exercise and reactivation programme. This will depend on how interested he is in dealing with the condition. We explained that his problem is unlikely to deteriorate and encouraged him to continue as normal a life as possible. Should he be willing to enter a three week programme we would keep you informed of his progress." The review officer found that both Mr Kendall and Dr Weston diagnosed the appellant has suffering from chronic pain syndrome which they were not able to relate to an accident. He also held that Mr Jones's findings particularly as a result of the CT scan examination did not attribute the appellant's problems to injury. On the basis of those findings the review officer declined the application for review. The appellant has submitted that his condition is getting worse and will not improve and in support of his appeal submitted a report from Mr W H Taine, an Orthopaedic Surgeon which is dated 14 March 1996. Mr Taine stated: "He also has a long history of low back pain, coming on in 1987 while cutting firewood when his back locked up'. Since then it has been worse with walking, riding, bending and lifting and twisting and jarring. His back often locks up and then he must take anything from 3 to 14 days of rest to get over it. When it gets bad it tends to radiate from the lower back down the back of the right leg to his foot, and occasionally down the left leg as well. He gets occasional vague sensory symptoms in his lower limbs, are now well localised, and the legs feel generally weak particularly during the bad episodes. He has no visceral symptoms in association with this. He has had no treatment recently but has had physiotherapy and medication in the past. He has got a number of reports with him including from Burwood Pain Clinic etc. Examination shows a normal gait, he can bend forward to get his hands to the floor, he moves with a small catch into satisfactory extension, lateral flexion is a little limited. There is minimal tenderness of the lumbosacral level in the spine, equal leg lengths, no abdominal findings of note. There is no pain on stressing the sacro-iliac joints, he has a full straight leg raise, no neurological deficits apart from knee jerks and ankle jerks which all appear to be absent. I cannot explain this. 7 He has a full range of elbow movement including forearm rotation, but is tender over the lateral epicondyles bilaterally, a little pain on resisted wrist extension, no localised swelling etc., there is a well healed scar over the lateral right elbow. X-ray of his back show a few minor traumatic changes but well preserved disc spaces on the whole. The x-rays of his elbows are normal. In summary, he has bilateral tennis elbow type problems worse on the right, and he has had an operation on this side. He in all likelihood would fit into an occupational over-use syndrome here and I would expect these problems to prevent him getting back to his previous job of building but not all types of work. Ideally some sort of re-training programme could be offered to him to build up his tolerance to activity. His back pain is mechanical in origin, x-ray changes are not well associated with this type of problem, the lack of changes on x-ray doesn't really mean that he has no problem, nor do the presence of mild degenerative changes mean that pain is guaranteed. All in all I think that the approach here would be one of education, instruction n (sic) back care, possibly with physiotherapy or chiropractic advice and possibly through the Pain Clinic for a prolonged rehab. Programme. However, I would have thought that again the ACC would be of some assistance given that he appears to have a defined event documented not only on his talk today, but in previous notes that he has copies of, so that they would remain responsible for him. Similarly, a re-training programme to avoid prolonged postures, especially sitting and standing, avoiding twisting, bending, lifting, and repetitive work would be best." The appellant said that he is not taking any physiotherapy because this only increases the pain. His principal submission is that he understood that accident compensation would cover any accidental injury received from whatever cause and that as he incurred his problems while working he should be entitled to cover under the Act. Mr Fawcett submitted that in issues of this nature the Corporation and the Court must be guided by the specialist medical evidence. He submitted that the reports of Dr Weston and Mr Taine did not take the matter any further. He submitted that Mr Binns could not give a specific diagnosis of the cause and very thorough examinations undertaken by Mr Jones could not pinpoint trauma as being the cause of the appellant's problems. He submitted that while the appellant's submissions tend towards the suggestion that the appellant may have a claim under section 28 of the Accident Compensation Act 1982 for a disease arising out of employment, the appellant's claim has never been investigated on that ground and accordingly I have no jurisdiction to consider the question of whether or not the appellant suffers an industrial disease. I agree with that submission. I consider that having regard to the medical evidence and in particular that of Mr Binns's and Mr Jones's the appellant has been unable to establish that the cause of his continual back pain is trauma. In order to qualify for cover under the Act it is necessary for the appellant to show on the balance of probabilities that the cause of 8 his problems is personal injury by accident. As the medical evidence does not support this contention, the appeal must be dismissed. DATED at WELLINGTON this Th day of August 1996 Devinadubai A W Middleton District Court Judge dc264-94.doc (nr)