McGarva v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 224 /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN PAMELA ANN McGARVA of Lower Hutt Appellant (Appeal No. Al 585/00) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 23rd day of July 2001 DATE OF DECISION: 21 st August 2001 APPEARANCES M Hubble for appellant A Barnett for respondent RESERVED JUDGMENT OF JUDGE A A P WILLY Background [1] This is a notice of appeal dated 28 November 2000 against a decision of a reviewer given on 2 November 2000. [2] The reviewer upheld the Corporation's decision suspending the appellant's entitlements pursuant to s. 116(1) of the Accident Insurance Act 1998. [3] The grounds of the appeal are that the reviewer's decision errs in fact or in law in that: "1 . The medical evidence is not properly considered and weighed; 2 2. The case referred to is not on point and other cases in which the diagnosis of chronic pain has not precluded continued entitlement are not referred to; 3. Such other grounds as may be advanced at a later date." [4] The appellant seeks that the review decision be quashed and that the insurer be required to reinstate weekly compensation with effect from the date of termination of 3 July 2000. The appellant also seeks costs. The matter at issue [5] The question between the parties is whether or not the Corporation was entitled on the facts of the case to suspend the appellant's entitlements on the grounds that it is no longer satisfied that there is a causal association between the original injury for which cover was granted and the appellant's medical condition as at the date that cover was suspended. [6] This appeal raises yet again what is becoming an increasingly difficult question, both for the Corporation and claimants centring upon sharply divergent medical opinion insofar as it touches upon the Corporation's powers conferred by s. 116. The statutory provisions [7] Section 116 provides that: "1. An insurer may suspend a statutory entitlement if it is not satisfied on the basis of the information in its possession that an insured is entitled to continue to receive the statutory entitlement. 2. The insurer must give the insured written notice of the proposed suspension within a reasonable period before the proposed starting date." [8] This provision had been carried over from s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992, and is in substantially the same terms as the previous legislation. Of that provision Judge Beattie said in Hyde v ACC (14/98): "In terms of the aims and objectives of the Act, if a person suffers personal injury by accident, the Act grants that person various entitlements. If that person no longer suffers from that personal injury by accident, that person ceases to be eligible for a continuation of those entitlements. That is what section 73(1) is about." [9] In his decision, the reviewer canvasses a number of cases in which cover had been suspended and there are, as the appellant points out in support of this appeal, other cases in which on appeal such suspensions have been overturned. That serves to highlight that determination of questions which arise in cases such as this are primarily a matter of statutory interpretation and careful attention to the facts, including of course the medical evidence. The facts [10] The appellant suffered an accident in April 1991 while putting up curtains in her new flat. She was standing on a stool fitting a curtain on an elastic cord to the side of 3 a window frame when she lost her balance and fell heavily, striking her left shoulder against the wall. At that time she was aged 49 years with three grown-up children. [11] A claim was lodged with the Corporation in respect of this accident (no. 652524). In the claim form which is dated 12 April 1991, in response to the question "what were you doing when the accident happened", the appellant answered "put up new curtains, stretching expanding cord". In answer to the question "describe how it happened", the appellant says "as above - no. 15". To the question "what were your injuries", the appellant answered "shoulder sprain". [12] At that time the appellant was fully employed as a personnel officer with the Wellington City Council. She continued to work after her accident but required increasing amounts of time off because of pain in her shoulder. Unfortunately later in 1991 the appellant suffered a further injury when she tripped at work and injured her right ankle and tendon. This accident was also the subject of an Accident Compensation claim but did not feature in the Corporation's decision to accept cover for the accident which occurred on 6 April 1991. [13] The original medical certificate is no longer held on the Corporation's file. However in an evaluation report done by the Corporation on 2 November 1992, it is noted that the appellant's "original diagnosis was of capsulitis of the left shoulder". [14] It is clear from a report by Dr Treadwell dated 20 November 1992 that he first saw the appellant at the request of her General Practitioner, Dr Watson, on 17 July 1991. He there records that: "She told me that seven months previously she had developed pain in the left shoulder whilst driving. Symptoms gradually settle in a few weeks but three or four months later she developed a severe recurrence of pain in the left shoulder when pulling a cord energetically. Pain was sudden and had persisted. She denies previous problems with the shoulder." [15] Whatever may be the position regarding the absence of the original medical certificate, the Corporation did accept cover. [16] The appellant's shoulder condition continued to worsen during 1991 and 1992. In July of 1991 Dr Treadwell formed the opinion that her symptoms "were due to a lesion of the left rotator cuff with an associated subdeltoid bursitis". He injected the subdeltoid bursa with "local corticosteroid". The doctor noted: "She had had physiotherapy previously which had not helped. This was discontinued." [17] The appellant returned to see Dr Treadwell on 22 April 1992, having been referred back to him by her General Practitioner. At that time the doctor noted: "Improvement following the injection had been relatively brief. At this time examination of the shoulder was difficult as all movements were resisted and associated with pain." 4 [18] Dr Treadwell fitted the appellant with a "montreal sling" and gave her a four week course of Prednisone. The appellant stopped the course after some ten days because she felt unwell. [19] Dr Treadwell saw her again on 13 May 1992 and at that time he records that: "Her shoulder was still painful and waking her at night. She appeared to have a frozen shoulder with marked pain on all movement." [20] The doctor reinjected the subdeltoid bursa with a further corticosteroid. [21] The appellant returned to see him on 27 May 1992. She indicated that the injection had not helped and that the "marked pain persisted". [22] She was admitted to the Rheumatology Unit of Wellington Hospital in June 1992 and had a course of hormone cortizone therapy and in addition her shoulder was supported with a sling. The doctor records: "Various other manoeuvres were attempted to assist her but there was no response." [23] She was referred to an Orthopaedic Surgeon in the hope that some surgical procedure might assist, but the doctor records that: "After further assessment it was decided that surgery would be inappropriate." [24] In a further attempt to improve the appellant's condition she underwent what is described as "a prolonged course of relaxation" but the doctor records that the "response of the shoulder was unsatisfactory". As at 20 November 1992 Dr Treadwell records that the appellant was complaining that "pain is constant and severe". He notes that she was still working but that "is forced to have time off from time to time". The doctor also recorded that the appellant was unable to drive her vehicle and was taking Panadol at times and "suffers from insomnia". The appellant was given a prescription to assist with the insomnia. She was encouraged to use a sling regularly and concentrate on her relaxation exercises for the shoulder. [25] The report continues with a recommendation from Dr Treadwell that the Corporation give the appellant assistance in obtaining a motor vehicle "with automatic gears and power steering". [26] On 10 May 1993 the appellant saw Mr Hunter, an Orthopaedic Surgeon. He had read a letter from Dr Lewis who is described as the appellant's GP and several reports from Dr Treadwell. He also sighted a "discharge summary from the regional Rheumatology Unit where she was investigated last June". [27] Mr Hunter describes the accident which caused the initial injury as follows: "She stated that on 4 April 1991 while stretching hanging some curtains an accident occurred when she was pulling hard on a cord and she fell forward twisting her left shoulder and she felt something give way in the joint and root of her neck." 5 [28] Pausing at that point in the medical chronology, it is relevant to consider the circumstances of the accident as described by the reviewer. He begins his decision by saying: 'Mrs McGarva has an accepted claim for cover relating to an injury sustained in April 1991 when putting up new curtains." [29] That with respect does not do full justice to the circumstances of the accident and the complaints which the appellant made about the consequences of it as recorded in Mr Hunter's report set out above, or that of Dr McNaughton. He also records that the appellant: "fell against a wall causing direct trauma to her left shoulder. She did not fall to the ground." [30] In Dr Keir Howard's report of 25 June 1999 he records the appellant as telling him that "she sustained a fall in 1991 as a result of which she injured her left shoulder and also her neck". Dr Turner, on the basis of whose report the Corporation discontinued cover, records the circumstances of the accident as described by Mr Hunter. [31] It is clear from the foregoing that, notwithstanding the paucity of information in the original claim form, the appellant did suffer a significant fall and I am satisfied that the consequences of that were as described to Mr Hunter in May 1993, being "twisting her left shoulder and she felt something give way in the joint and the root of her neck". [32] As at the date of the examination on 10 May 1993 Mr Hunter records that the appellant's left shoulder "remains a continual problem to her, being stiff and painful and interfering with her work and day to day activities" (my emphasis). [33] Mr Hunter also records that the appellant described her shoulder as "sensitive to touch" with the pain spreading to the side of her neck and down the outer side of the arm and occasionally gets pins and needles in the fingers. [34] He then goes on to record how this severely limits the appellant's recreational and normal daily life, commenting of her then employment that: "As a personnel officer she finds difficulty in moving the shoulder causing problems with the use of a computer and handling files and she is concerned as to whether she will lose her job." [35] On examination there was 20 degrees of flexion and 20 degrees of abduction in the left shoulder, movements being described as "limited by pain". [36] Neck movements were then restricted by 50% when turning to the left. The left forearm was measured as being 1 centimetre smaller than the right which Mr Hunter notes as "consistent with differences between dominant and non-dominant arms". [37] Reflexes in the arms were normal but Mr Hunter noted that there "appears to be a generalised sensory deficit in the left arm". 6 [38] Significantly, Mr Hunter records that he then viewed some x-rays which it seems were taken in June 1992, or possibly August 1992, which "were negative apart from some minor degenerative changes consistent with her age". [39] On the basis of that factual description of the appellant's condition, which Mr Hunter clearly accepted as being genuine, and his own examination, he gave the following opinion: "It appears that this patient has damaged the tendonous cuff around her left shoulder and this was followed by a chronic pericapsulitis or frozen shoulder syndrome." [40] This experienced Orthopaedic Surgeon concluded that the appellant had lost a 'great deal of movement in the left shoulder" and he assessed a permanent disability at 25% of total body incapacity. He also found some "limitation of left neck movement". In the light of those findings Mr Hunter was of the view that "an assessment under section 79 is clearly justifiable to the maximum for continued pain, suffering and loss of amenity of life". As to the future, Mr Hunter is "very guarded". He says: "Pericapsulitis usually starts to settle after a year or 18 months but this case is protracted and progress I think will be slow. There are no clear measures of treatment to help." [41] In particular he says that manipulation of the shoulder in this case is "likely to be unpredictable and could exacerbate her symptoms at the expense of some increase of movement and I do not think is indicated at this stage". [42] On 7 November 1994 Dr Devane of the Wakefield Joint Replacement Institute reported on the results of another accident which the appellant had had at that time involving her right ankle. Clearly this had nothing to do with the previous injury to her shoulder. Similarly in the case of a further accident in June of 1996. [43] In March of 1996 the Corporation enquired of the appellant's then medical practitioner Dr Lewis, as to her medical condition. He responded saying, among other things: "The outlook as you will know from the earlier records is not at all good and Pamela is in pain all day and every day." [44] He was asked if there was any other medical condition which could prevent the appellant from full recovery, to which he answered "no". He summarised her then condition as "she has a shoulder problem and she is quite unable to move the shoulder to get any relief from medication so she is severely limited in what she can do". [45] Dr Lewis considered that as at that time there was no "type of light work and hours that she will be able to manage with her present capacity". He concluded by saying that as the matter had "gone on for quite some time" he was prepared to refer her to an Orthopaedic Surgeon to see if there was some procedure which might assist with pain relief. 7 [46] On 18 September 1996 Dr McNaughton gave a report and opinion at the request of the Corporation. He saw the appellant. He deals specifically with the incident involving pain to her shoulder prior to the accident of 6 April 1991 and notes the appellant as saying that in relation to that incident that "pain in her left arm was short lived and did not return". [47] He sets out the details of the accident as previously discussed. He notes the appellant as having told him that the "pain gradually got worse over time with increased stiffness and pain and stiffness spreading to her neck, back and to the point now where it is over her whole body". Dr McNaughton reviews the history of treatment which the appellant had undertaken including intervention by Mr Krause, an Orthopaedic Surgeon, who prescribed a course of injections which "made no difference". [48] Dr McNaughton clearly did not find the appellant easy to examine. He noted a 'severely restricted voluntary movement of the neck" and that he was "unable to assess passive movement of the neck because of pain". [49] He concluded: "This woman has a chronic pain syndrome. It is possible that the initial trigger for the symptoms was her fall although there was no conclusive evidence for this apart from the history." [50] He goes on to say: "I think it is just as likely that the onset of the symptoms was around the time of the fall and that this simply brought her attention to the symptoms. Certainly the extent of the current symptoms bears no connection to the original incident." [51] He notes that the appellant is "severely disabled". He considers that the appellant: "expresses a lot of psychological risk factors for poor recovery from chronic pain including a tendency to catastrophice, a combination of passivity and hostility, a dependence on medication and limited education". [52] Dr McNaughton considers that the appellant's "symptoms will continue long term and I do not believe that she will ever return to work". He says that the appellant "shows a lot of the features common in people with chronic pain syndromes with a lot of distress and anger". He is pessimistic about the appellant's willingness to undergo psychological counselling which he evidently thinks is necessary. [53] It is again helpful to pause in the medical narrative to record what the appellant said in evidence before the reviewer concerning the circumstances of this interview and report. She points to inaccuracies contained in the report, for example where Dr McNaughton says that she was in hospital for ten days in June 1996 whereas in fact it was in 1992, points to the fact that she is puzzled by the doctor's references to her being "hostile throughout the interview and then saying she was both passive and hostile", notes that he says she cannot stand or sit, in response to which she says "now that's ridiculous because of course I can stand and of course I can sit but it 8 causes me pain if I do either for too long". As to the remark about her lack of education, she says that this: 'really really upset me for a long long time because all those things from Dr McNaughton's report I went over with my case manager at the time Paula Higgins and I explained it all to her. Now he says I've got limited education. Now the only question he asked me about my education was how long did you go to school and I said I went through to the end of my 6" form year." [54] The appellant is confused and puzzled as to why the standard of her education should have anything to do with her injury and subsequent pain and suffering, but says that in any event she got School Certificate in the 5" form, did a year in the 6th form and then left to start work. She says "I've educated myself right through and I've worked all my life except a few years I was off looking after my family". She notes that she has got qualifications in dancing, music, bible studies, was a Sunday school teacher and has her typing examinations. [55] In addition to that, she also held what can only be described as a responsible job with the Wellington City Council. [56] I share the appellant's puzzlement as to why the doctor would have made the wounding comment he did, given that it was inaccurate and of marginal relevance. [57] In August of 1996 the appellant was interviewed by Mr O'leary, an Occupational Therapist. He notes that: "Pam's neck and left shoulder are constantly in pain. She describes her shoulder pain as continuous burning pain with a dull ache. She has sharp stabbing pain on movement of the left shoulder. Her left shoulder's movement is very limited. She gets headaches from neck and tension." [58] He noted that the appellant presented as: 'being flat and unhappy, bitter about previous services and feeling stuck in her situation. There were times when she was nearly crying and she expressed frequently how frustrating her life is, how useless she feels and how life is a struggle with her pain and financially with not being able to work. She states 'sometimes it takes me all day to get around to doing one thing'." [59] The therapist makes some recommendations for changes to her house and car which might assist [60] On 24 June 1999 the appellant was seen by Dr Keir Howard. He records the circumstances of the appellant's fall as described earlier in the judgment. He notes that "at the present time her major problem is that of constant pain which is mainly in her neck and left shoulder and arm". On examination the doctor found: "extensive tenderness in all soft tissues and pain was elicited by relatively light palpation. Movement of all joints were restricted although particularly that of the left shoulder. She was able to abduct her left arm almost to horizontal but any attempt to move it beyond that met with strong resistance due to the level of pain." 9 [61] The doctor goes on to say, significantly in my view, that: "The features of her shoulder however would suggest that she has had rotator cuff damage at some stage in the past." [62] The doctor is less certain as to whether or not she has "a true painful arc syndrome" [63] By this time the doctor also notes limitation of movement in the right arm because of pain, also pain of the neck and shoulder region in all the soft tissues extending into the back. [64] In answer to specific questions to which he was asked to direct his attention by the Corporation, Dr Howard answered as follows: "1. The clinical findings are detailed above and in my opinion the diagnosis remains as it was in 1996. That is of a generalised chronic pain syndrome. It is difficult to say that this is specifically related to the injury sustained in 1991 or subsequent injuries although I would judge that these were the triggering causes and set the process in motion. I disagree with Dr McNaughton in that I am of the opinion that pain syndromes do not arise de novo but are associated with some triggering mechanism and in this case I believe the trigger was the set of injuries which occurred starting in 1991. The existing pain however is of a generalised nature and is thus not related specifically to the injuries sustained in 1991 or subsequently." [65] As to what is the cause of the present pain suffered, the doctor considers that: "Whether there is a direct link to the injury or whether the link is more complex and circumstantial would be a matter of debate. I would be prepared to say only that the initial injuries acted as the trigger to the development of her present chronic pain syndrome." [66] Somewhat paradoxically the doctor then goes on to express an opinion that "the primary reasons for her existing incapacity relate to the chronic pain syndrome rather than the specific injuries which occurred in the early 1990s". He goes on to observe inaccurately "there is some clinical evidence of an ongoing right shoulder problem". Counsel are prepared to accept that this is an error and the doctor intended to refer to the left shoulder. [67] He comments that she has "very little if any capacity for work" and considers her to be "essentially unfit for employment". He does not think she will ever return to full-time employment, although with "good pain management she may be able to return to part-time work in a period of something like 12 months". [68] The doctor considers that there is "unlikely to be any progress without a significant psychological input" and recommends that she see a psychologist with good training in "cognitive therapy" [69] Dr Howard's qualifications are MAMD (Edinburgh) PhD and he has two qualifications in Occupational Medicine, one from London and another. 10 [70] Some time in or about June 1999 the Corporation then referred the appellant to Or Edwin Whiteside, who is described as a Medical Adviser in Occupational Medicine. He does not otherwise state his particular medical qualifications. [71] It is difficult to know whether or not Dr Whiteside actually saw the appellant. Certainly he had referred to him reports from Dr Treadwell, Mr Hunter, Mr Devane, Dr Lewis and Dr McNaughton, also the ACC evaluation report from Ms Chambers of 2 November 1992. [72] He was apparently asked to make an assessment and an impairment rating. He finds that the left shoulder range of movement is impaired to a combined value of 16% of whole person impairment. [73] On 31 March 2000 the Corporation made an appointment for the appellant to see Dr Turner. His qualifications are MB, ChB. He also has two qualifications in Occupational Medicine. He saw Ms McGarva on 19 April 2000 "in order to provide an opinion regarding current diagnosis, work capacity and further treatment and/or rehabilitation needs in respect of her left shoulder pain disorder". [74] He apparently had access to the Corporation's file and reviewed the correspondence, including the reports from Dr Treadwell, Mr Hunter, Dr McNaughton, Dr Howard, Dr Whiteside, Dr Lewis and Mr Devane. He notes that the original diagnosis of her condition was left shoulder rotor cuff syndrome. He notes Dr McNaughton's view that when he examined her there was "no conclusive evidence for initial trauma as a trigger for her chronic pain syndrome". [75] Dr Turner records the appellant's description of her April 1991 accident as "contusion to the left shoulder at a time when she was standing on a stool pulling a cord, she lost her balance, the stool went from underneath her and she crashed against the window frame contacting her shoulder and neck against the frame". [76] Dr Turner notes that the appellant "denied any prior history of injury to her neck and shoulders, nor could she recall any episode of pain in either shoulder or neck before the incident in 1991". That is surprising given that on a number of previous occasions the appellant had readily disclosed to doctors to whom she was sent for examination and report that she did have the earlier incident of pain in her shoulder while driving her motor vehicle but that it had completely cleared up. It is also contrary to what he later says - see para. [87] [77] As to her general health, Dr Turner notes that "there is no history of arthritis, psoriasis, diabetes, gout or an inflammatory bowel disease". [78] By the time of Dr Turner's examination the appellant was 59 years of age, at a weight of 85 kgs and a height of 162 centimetres. She accepted that over the past eight years or so she had increased in weight but largely because of the fact that she was unable to exercise. [79] On palpation Dr Turner notes that there was "little to find in the way of tender points in her forearm musculature at the elbows". He says that examination of her shoulders revealed that there was "marked hyper algesic tenderness with multiple tender points involving the anterior, lateral and posterior left shoulder soft tissues". 11 [80] He also found that her "neck had marked superficial hyper algesic tenderness of the cervical spinous process and also in the paravertebral tissue". [81] On testing the range of movement he found that at the left shoulder she could: "only manage 70 degrees of abduction, 80 degrees of forward elevation and 10 degrees of extension. External rotation was markedly limited at 30 degrees in the left shoulder" (compared with 80 degrees in the right shoulder) [82] He records the appellant as saying that "she was in agony with the testing of active shoulder mobility". [83] The doctor then responds to some specific questions put to him by the Corporation. He says the appellant "has a chronic pain syndrome affecting her neck, her right shoulder and her right arm". Quite why Dr Turner should make the same fundamental error about the shoulder he was examining, as did Dr Howard, is difficult to understand, but counsel are agreed that the doctor intended to refer to the appellant's left shoulder and arm. Although one accepts that in a long report typing errors and the like will creep in, to confuse the particular part of the body in respect of which opinion is sought, does not invest one with great confidence in the accuracy of the opinions expressed. However that may be, the doctor goes on to note that the appellant's condition has failed to respond to treatment and ventures the opinion that "the pain is associated with non-restorative sleep and sleep disturbance, she is chronically fatigued and there has been major psychological impact with mood disturbance, injury focus, catastrophicing and passivity through fear avoidance behaviour". [84] Against that background the doctor notes that there are on examination "no signs of tissue damage or inflammation due to disease or injury". He considers that there is evidence of "marked deconditioning through passivity and disuse" and that in his opinion "there is no evidence for a specific treatable localised diagnosable lesion, rather her condition can be explained in its entirety on the basis of her chronic pain syndrome"(my emphasis). [85] He considers that on clinical examination the appellant "did however reveal that she has a frozen shoulder which has arisen through guarding and disuse" [86] The crux of Dr Turner's opinion is that: "The effects of the shoulder strain in 1991 can now be considered to have completely dissipated. I do not believe that she has any ongoing chronic injury in her shoulder, nor do I accept that this has given rise to her current symptoms." [87] He goes on to say that he agrees with Dr McNaughton in that "the initial incident was a triggering event only and is not primarily the cause of her current symptoms". He mentions that Dr Treadwell had recorded the sudden onset of pain some months before the April 1991 injury and he goes on to say "and three to four months later developed a severe recurrence of pain in her left shoulder when pulling the cord" [88] This is a puzzling reconstruction of events. It is simply inaccurate, as will be apparent from the foregoing narrative. The doctors who examined the appellant 12 close to the time of the April 1991 injury were well aware of the previous incident while driving the car and none of them have expressed the view that it is in any way related to the consequences of the April 1991 event. More significantly however, it is simply factually wrong to say that she developed a severe recurrence of pain in her left shoulder when "pulling the cord". The fact of the matter is while pulling the cord she fell off a stool into a wall or window frame, causing what Dr Treadwell unhesitatingly described at the time as "a lesion of the left rotator cuff with associated subdeltoid bursitis". [89] From that inaccurate description of the April 1991 accident, Dr Turner goes on to say "in my opinion this event (by which he is referring to the April 1991 incident) would not have provided sufficient antecedent trauma to account for a direct relationship with her current symptomology". To the contrary he expresses his view that there are other reasons why the appellant is suffering the pain and disability which she undoubtedly was when he examined her. He says: "Alternatively there was evidence for innumerable psychological stressors which are a much more biologically plausible cause of her ongoing chronic regional pain syndrome. It would appear that she was under significant stress through relationship disharmony culminating in a marriage break-up in 1999. Furthermore there was evidence in existence of faulty pain perceptions that her work was harmful and unhealthy." [90] He also says that she: "manifested passive pain behaviour leading to a desire to have her painful tissues cured by hands-on physical therapy and evidence of catastrophicing beliefs which in turn has lead to fear avoidance behaviour, passivity, weight gain and deconditioning." [91] These somewhat surprising assertions, based as they clearly are on inaccurate appreciation of the facts of the accident of 1991, were accepted by counsel for the Commissioner as going rather further than was available on the facts and significantly overstating the non-medical circumstances of the plaintiff's life since the date of the 1991 accident. [92] It is also interesting to note the appellant's responses to Dr Turner's interview of her, as is drawn from the notes of evidence before the reviewer. She says: "Dr Turner said I fully understood the purpose of the assessment of the need for me to undertake and report on the full injury history, the past social and family history. Now that is not true. I never at any stage fully understood because I asked him throughout the interview. I said to him 'why are you asking me all these questions about the ages of my children, when I was divorced, my education I referred to, what has that got to do with my injury? You know its this report is a total invasion of my privacy as far as I'm concerned. You know its not my occupational and injury history, its my past social and family history. Now can you tell me why?" [93] The reviewer of course could not respond to that question, but essayed the view that "maybe its standard procedure that these are the kind of things that a medical professional will do when he's carrying out an examination and assessment'. To 13 which the appellant responded "but that's if ACC asked him to do it". She said that she asked him why he was seeking all this information and he "said it was his job". [94] As to her work record after the accident, she says: "I had a good job and I didn't want to give it up. I fought it for two years not to give up." [95] The appellant was clearly upset at the tenor of her interview and examination with Dr Turner and a number of inaccuracies in his reporting of information which she gave him concerning matters such as the amount of alcohol she drinks. She says "/ think I've had one drink in a year, whereas he describes her as being "a moderate drinker". She makes similar comments about how he reported information she gave him concerning her smoking, her weight, her interest in aerobics, her attitude to work and the like. [96] Clearly the appellant was distressed at the way in which this interview had proceeded and the construction put upon it in the report supplied to the respondent. [97] That is of significance in the context of the opinion which Dr Turner gives as to the reason for the symptoms which the appellant displayed at the time of the examination. He says: "Her present symptoms and therefore incapacity have predominantly arisen as a function of her cognitive behaviours and thoughts that have perpetuated her condition through activity avoidance, lost strength and musculoskeletal deconditioning." [98] He goes on to say, in relation to her injury of April 1991, which he describes as 'a new injury": "I am inclined to agree with Dr Treadwell that this episode in fact represents a recurrence of pre-existing underlying pathology. I would suggest retrospectively that she had trigger point pathology in her neck and left shoulder and that the incident in question triggered those tender points from some underlying latent state." [99] He goes on to express the view that once triggered, those tender points became spontaneously painful, resulting in self-sustaining and progressive state of heightened pain sensitivity. He says: "Thus the incident in 1991 was not primarily causative and therefore cannot be seen as a cause of her present incapacity. Rather it was but one minor trigger in a person with an underlying biological and psychosocial susceptibility to develop chronic pain syndrome." [100] Dr Turner is a professional specialist in the area of Occupational Medicine and of course his views and opinions must be given weight and balanced against those of the doctors who express markedly contrary opinions. They are in that sense questions of fact for the Court to weigh. In doing so the Court needs to be satisfied that any professional opinion advanced is soundly based on demonstrably accurate reporting of facts. 14 [101]I do not under-estimate the difficulty which medical practitioners have, being asked to comment on circumstances which arose nine years before, and therefore while bearing in mind that it is the appellant who has the onus of proof, I think it is safer to rely upon the recollections and recording of lay persons and medical specialists taken nearer the time. [102] Viewed in that way, I am satisfied that the appellant did suffer an accident on 4 April 1991 which properly entitled the respondent to grant her cover pursuant to s.26(2) of the 1982 Act. [103] Entitlement to weekly compensation was properly established in my view, under s.40 of the 1992 Act, relying upon the then test for incapacity to be found in s.37 as it was prior to its amendment in 1996 which was "whether or not the person is by reason of his or her personal injury for the time being unable to engage in employment in which the person was engaged when the personal injury occurred". [104]I am further satisfied that the Corporation properly continued her entitlements through the transitional provisions of s.421(1) of the present Act, which provides that "a person is deemed to have cover under Part Ill if a claim for cover for that person has been accepted before 1 July 1999 for personal injury covered by the former Acts". [105] Noting also the provisions of s.419 "a former Act or a section in a former Act applied by or under any of sections 420 to 453 applies as if the Act or section had not been repealed" [106] The combined effect of these transitional provisions is that: (a) The appellant's weekly compensation was preserved for the purposes of the present Act; (b) I am satisfied that the medical evidence establishes beyond any doubt that in the accident of April 1991 the appellant suffered a lesion to the left rotor cuff associated with subdeltoid bursitis; (c) That physical injury resulted in the onset of immediate pain and discomfort in the appellant's left shoulder and neck which, by 20 November 1992, was described by Dr Treadwell as "marked pain on all movement"; (d) The evidence establishes that this loss of movement and onset of pain continued unabated down to the time of Dr Turner's examination, and continues to exist at the present time; all of which illustrates the appreciation of Dr Hunter when he said in his report as early as 10 May 1993: "The progress for this joint appears to be very guarded. Pericapsulitis usually starts to settle after a year, 18 months but this case is protracted and progress I think will be slow and uncertain. There are no clear measures of treatment to help." That view, expressed by a very experienced Orthopaedic Surgeon, has been aptly borne out by the regrettable course of events in the intervening years. The disability and pain associated with the accident of April 1991 has continued unabated. It has got progressively worse until is as described by Dr Turner in his report of 20 April 2000. 15 (e) I can see no basis in fact to support Dr Turner's opinion that the disability and pain from which the appellant currently suffers is unrelated to the accident of April 1991. There is simply no factual basis for the thesis advanced by him that the pain and discomfort and disability from which the appellant currently suffers is in some way caused by "innumerable psychosocial stressors". Certainly the appellant has had her share of misfortunate and domestic upset, but there is no basis in fact for concluding that these not unknown misfortunes should now be substituted as the cause for the appellant's current suffering. To the contrary, I am satisfied that there is a direct causal link between her present predicament and the injuries suffered in the accident of April 1991. [107] Counsel have helpfully referred me to a number of relevant authorities and unsurprisingly the respondent relies heavily upon the observations of the High Court in Fowlie v ARCIC (AP 50/00 unreported Wellington Judgment 4 October 2000) which cited with approval a passage from a decision of Judge Beattie in Finnemore v ARCIC. In that passage Judge Beattie said: "In the circumstances such as the present case where the appellant has been granted cover for a specific injury and is seeking continuing entitlement in respect of that injury, there is an ongoing onus on the claimant to establish that the particular entitlement being claimed is one which the Act allows ... It is implicit in the granting of cover that the cover is granted for a qualifying personal injury by accident and it is only whilst that qualifying personal injury subsists that cover can continue. If injury is found to be no longer by accident but from some other cause then there can be no ongoing cover because the basis for it no longer exists." [108] Of that decision and a related one of His Honour Judge Middleton, the Court in Fowlie said: "As was observed by His Honour Judge Middleton in the decision of Bell and which has been followed by other decisions in this Court, the fact that a personal injury by accident causes previously asymptomatic pre-existing conditions to become symptomatic does not entitle a claimant to ongoing entitlements under the Act when the effects of the injury have dissipated and all that is left is a continuing now symptomatic pre-existing degenerative condition. When that stage is reached entitlement must cease." [109] Counsel for the respondent submits there is no distinction in principle between those cases involving a pre-existing symptom which simply gets worse with the passage in time, and cases where there is no pre-existing symptom, but the appellant's medical condition at the time cover is withdrawn by the Corporation is related to other causes. [110] That may or may not be so, it is not necessary for me to decide the point in this case, because I accept Mr Barnett's related submission that "it will always be a question of fact whether the claimant can establish on the balance of probabilities an ongoing causal association between the injury which is covered and the current incapacity". I further agree with Mr Barnett when he submits that "proof of the association will largely be dependent upon the medical opinion", but of course one must be careful to have regard to the primary facts relating to the circumstances of 16 the accident itself and the way in which those circumstances are understood and reported by the various competing medical practitioners [111] Specifically on the facts of this case I can find no persuasive evidence that the appellant was suffering from any pre-existing disease or degenerative condition, the deterioration of which is the cause of the pain and disability currently suffered by her. Decision [112]I am therefore satisfied that the respondent's decision to suspend the appellant's entitlements pursuant to s. 116 was wrong, because the appellant is still suffering from the effects of the personal injury by accident in which she was involved in April 1991. There is a direct causal link between the two. The appeal is therefore allowed and the decision of the reviewer is quashed and I direct the Corporation to reinstate weekly compensation properly payable to the appellant with effect from 3 July 2000. Costs [113] The appellant is entitled to costs. If the Corporation wish to contend otherwise, or the parties cannot agree on the amount, then the appellant may file a memorandum within 10 working days of the date of receipt of this judgment and the respondent may reply within 10 working days of receipt of the appellant's memorandum. A A P Willy District Court Judge A1585-00.doc(J9) IN THE DISTRICT COURT AT WELLINGTON Decision No. 224/2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an Appeal pursuant to section 152 of the Act BETWEEN PAMELA ANN McGARVA of Lower Hutt Appellant (Ref: AI 585/00) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON COSTS Having considered the submissions of counsel I agree with Mr Barnett that a contribution towards the appellant costs of one thousand five hundred dollars ($1,500.00) is reasonable having regard to the matter involved and the length of the hearing. DATED at WELLINGTON this 26 " day of October 2001. Arthur Willy . Judge A.A.P. Willy District Court Judge