Baillie v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 68 Al 506/09 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN PAUL BAILLIE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 3 November 2011 DATE OF THIS DECISION 7 March 2012 COUNSEL Mr H Peart for appellant Ms F Becroft for ACC RESERVED DECISION OF JUDGE P F BARBER The issue [1] Was ACC correct on 14 May 2009 to suspend the appellant's entitlements on the basis that his ongoing symptoms were no longer causally related to an injury sustained on 16 October 2008? Background The appellant has cover for, inter alia, two back injuries sustained on 1 November 1997 (a disc prolapse) and 12 October 2008 (a lumbar sprain). [2] On 1 November 1997, Mr Baillie slipped and twisted his back while carrying a box on stairs. He recalls feeling at tearing sensation in his back. Overnight his lower back became stiff and painful. He had no significant experience of back pain prior to that accident. That injury of 1 November 1997 was recorded by ACC as a lumbar disc prolapse with radiculopathy. It led to discogenic, mechanical lower back pain. 2 [3] Mr Baillie's GP arranged physiotherapy and referred him to orthopaedic surgeon, Mr Gavin Farr, who treated the injury conservatively. [4] At that time, Mr Baillie was working as a social worker. He required time off work due to the injury, and then had a gradual return to full-time work over a period of nine months. (5] In late 1997 Mr Farr considered that the appellant had sustained a disc injury but to a disc suffering from degenerative disease. He opined "there is no place for surgical intervention in lumbar disc degenerative disease in the acute phase." [6] In August 1998, Mr Farr assessed the appellant again and the appellant advised that he was continuing to experience ongoing symptoms. Mr Farr obtained x- rays and, in a 13 August 1998 report, noted that these were normal with "no focal bone lesions or significant degenerative change". [7] In October 2000 the appellant was assessed by Mr Butler of the Auckland Regional Pain Service ("TARPS"). Mr Butler then reported diagnosing chronic post- traumatic low-back pain with a past history of episodic mid lower thoracic pain. The appellant underwent a full back-pain management programme in January/February 2001 and, around this time, reduced his work hours due to tolerance issues. He returned to fulltime work in September 2001. In a March 2002 follow-up report, it is noted that the appellant was managing "100% better". [8] In September 2003, the appellant was assessed by Mr Otto, Orthopaedic Surgeon. In his view, the appellant's chronic fatigue symptoms were not associated with his back pain problems. Mr Otto's report described a recent period in March and April 2003 where the appellant was on bed rest due to chronic fatigue. Subsequently, the appellant had only managed to return to 20 hours work per week. [9] Mr Otto determined that pain and symptoms correlated with a small annular tear in the disc with no major neurological changes. He noted that the radiological evidence did not support a clinical finding of any major change in the disc. He could find no association between the appellant's back condition and what he called a chronic fatigue syndrome. He indicated that the main incapacitating feature in the appellant's case was the chronic fatigue. [10] In October 2003 ACC suspended entitlements on the basis that ongoing symptoms were no longer causally related to the injury. This decision went to Review and was quashed, with the Reviewer directing ACC to consider the issue of chronic fatigue further and issue a new decision. [11] Dr Orr provided an opinion for ACC on 23 September 2003 and considered that the appellant had sustained joint dysfunction as a result of the 1997 incident. He treated the appellant and was confident that he would be able to relieve his back pain. He was unsure how this would impact on the appellant's "chronic pain fatigue syndrome". [12] In September 2004, ACC again suspended the appellant's weekly compensation. The issue went to review in March 2005. In a subsequent review decision, ACC's decision was quashed. The Reviewer accepted that the appellant's chronic fatigue syndrome was an outcome of his chronic back pain which was related to the covered physical injury. 3 [13] In 2005 the appellant was assessed once again by TARPS. Dr Large, Psychiatrist, reported on 11 November 2005 and considered the relationship between chronic pain and chronic fatigue and noted: "...there is no doubt that these two entities are related, just as there is also a relationship between chronic pain and depression. I suspect all of Paul's current symptomology harks back to his original chronic pain problem." [14] On 12 October 2008 Mr Baillie suffered a further injury, for which he also has ACC cover. He was pulling a washing machine up a staircase using a luggage trolley when he slipped backwards and fell onto his buttocks. He experienced an immediate onset of pain in the same previously-injured site in his lower back. The injury was recorded as a lumbar sprain. It was regarded as an exacerbation of his 1997 injury by the treatment providers who subsequently assessed him. [15] Mr Baillie had physiotherapy treatment and rehabilitation assistance from occupational therapists. His pain symptoms did not adequately resolve although, through careful management and financial necessity, Mr Baillie returned to work. This was initially part time, but building up slowly to full time hours. [16] Approximately two weeks after the injury, Mr Baillie was assessed by an occupational therapist, Leigh Stanbridge, who concluded in a 30 October 2008 report that "Paul has experienced an acute injury on top of having a chronic low back problem, when he slipped on stairs when moving a washing machine". [17] The appellant was then referred to Mr Kelman who, on 28 November 2008, reported describing the appellant's history of injury and diagnosing "mechanical back ache arising from L5/S1 disc disease." He recommended obtaining an up to date MRI scan. In his view the recent accident aggravated a pre-existing condition at L5/S1. [18] Mr Kelman provided a supplementary report on 18 December 2008 (the report is incorrectly dated 18 November 2008) after reviewing the results of the MRI scan. The scan report, dated 2 December 2008, concluded: "Diffuse and quite mild posterior bulging of the discs at all lumbar levels. No significant foraminal disc prolapse or extrusion but there are annular tears from L3/4 to L5/S1. No major central canal, recess or foraminal narrowing is seen. Background of minor facet joint osteoarthritis. Incidental note of a simple cyst like lesion (probably perineural root sleeve cyst) left extradural space at T12/L1.' [19] Mr Kelman concluded that there were widespread areas of disc disruption in the lumbar spine, and recommended treatment options on 18 December 2008. [20] Mr Kelman also reported back to the appellant's GP and indicated again that there were a number of reasons for mechanical back pain including wide spread lumbar disease [21] In early 2009, the appellant was referred to Dr Laubscher, Pain Specialist, for review. Dr Laubscher reported on 9 February 2009 and noted that the appellant suffered from recurrent post-traumatic low back pain, a degenerative condition, and from depression. He noted that the clinical picture was consistent with mechanical low back pain. 4 [22] Throughout early 2009 the appellant continued to receive assistance by way of a graduated return to work programme. Various reports noted continuing pain. The appellant was assessed by the Occupational Medical Unit in March 2009. Dr Aamir, Psychiatrist and Pain Specialist, authored a report on 23 March 2009. He could find no signs of depressive disorder, anxiety disorder, or pain disorder, although he did note a background of a strong familial history of major depressive disorder, anxiety, as well as a history of alcohol misuse. [23] Professor Gorman of the Occupational Med Unit reported on 30 April 2009. He reviewed the radiological evidence which showed multiple disc disease with no evidence of any cord compromise. He indicated that the appellant's best interests were served by being at work, and concluded that the appellant would be fit for work fulltime in the following months. [24] On 4 May 2009, Mr Kelman provided a supplementary report indicating that there was no evidence on the MRI of any physical injury related to the 12 October 2008 incident which, at best, aggravated a pre-existing pathology. He opined that the effects of the 12 October 2008 accident were now spent, and that any residual problems were secondary to the generalised lumbar spondylosis which had been present for a considerable number of years. [25] On 14 May 2009 ACC issued a decision suspending the appellant's entitlements on the basis that symptoms were no longer causally related to the 2008 injury. [26] On 24 July 2009 Professor Gorman provided a further report opining that the appellant's ongoing axial pain disorder was directly related to his "injuries", and the most recent exacerbation to an accident in October 2008. [27] A Review proceeded in September 2009 before Mr Hugh Sanderson, Reviewer. He issued a 12 October 2009 decision dismissing the review application and determining that ACC had sufficient information at the time it made its decision to suspend entitlements on the basis that it was "not satisfied that the injury causing the incapacity for Mr Baillie was the covered accident. [28] For the purposes of this appeal, two further reports have been filed, namely: a report of Dr Butler to the appellant's GP, and a report of Dr Butler to Mr Peart, both dated 14 September 2010. Mr Kelman has also provided a response dated 31 October 2011. Relevant Law [29] Section 26(1) of the 2001 Act provides that "personal injury" includes physical injuries, such as (but not limited to) a strain or a sprain. Pain syndromes caused by physical injury(s) are covered. Disease or degeneration caused by the initial physical injury(s) is covered. [30] Section 26(2) and (4) of the Act provide that "personal injury" does not include injury caused wholly or substantially by a gradual process, or the ageing process (except in specific circumstances not relevant to this review). 5 [31] Under s. 117 of the Act, ACC may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. [32] ACC must have a "sufficient basis before it is not satisfied that a claimant is entitled to continue to receive the entitlement". If the position is uncertain, "then there is not a sufficient basis. The "not satisfied" test is not met in these circumstances". Ellwood v ACC [2007] NZAR 205. The "not satisfied" test requires a positive decision equivalent to being satisfied that there is no right to entitlements. This test would not be met where the evidence was in the balance or unclear: Milner v ACC (187/2007). [33] Section 26 of the Act defines "personal injury" as physical injuries suffered by a person. Personal injury caused "wholly or substantially" by a non-work gradual process, disease, or by the ageing process is excluded. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered: McDonald v ARCIC [2002] NZAR 970 at 26. [34] There must be a causal nexus between the covered injury and the condition of the claimant for which entitlements were sought at the time of ACC's decision to suspend or decline entitlements: Milner. [35] Causation cannot be established by showing that the injury triggered an underlying condition to which the appellant was already vulnerable, or that the injury accelerated the condition which would have been suffered anyway: Cochrane v ACC [2005] NZAR 193. [36] The question is whether the evidence as a whole justifies a conclusion that there is a nexus between injury and incapacity: Cochrane. Discussion [37] The issue in this appeal is whether there is a causal nexus between the appellant's symptoms as at 14 May 2009, when ACC issued its decision, and the appellant's back injury sustained on 12 October 2008. [38] It is submitted for ACC by Ms Becroft that the weight of expert medical evidence available demonstrates that there is no such nexus. ACC relies primarily, but not exclusively, on the medical evidence/reports from Mr Kelman. [39] Mr Peart submits that it was incumbent on ACC to consider the 1997 injury and its effects when considering if it could suspend the appellant's entitlements in May 2009. He submits that ACC did not do that so, he puts it, a material cause and, in his view, the most natural and obvious cause, was excluded from the determination about causation. [40] He also submits that the weight of medical evidence shows that the effects of the appellant's injuries are not spent and are ongoing; but puts it as to the credit of the appellant that he has managed to return to full time work where he continues to struggle. 6 [41] Mr Peart accepts that, for legal purposes, the appellant is not "incapacitated" for work at present. However, he stresses his submission that, at the time of ACC's May 2009 decision, the appellant was incapacitated and that, in any event, this appeal concerns causation rather than capacity to return to work. Mr Peart submits that the evidence in respect of causation weighs in favour of the appellant. Mr Peart noted that, at Review, the appellant's evidence was that his pain condition has fluctuated in intensity but has never resolved. Mr Peart puts it that this case is best regarded as a significant index injury in 1997 leading to chronic mechanical lower back pain which was aggravated by further injury, notably on 12 October 2008. [42] Mr Peart submits that there is no specialist evidence to suggest that the covered condition and the consequences of the 1 November 1997 injury has resolved or healed so that ACC was incorrect to suspend the appellant's entitlements on 14 May 2009. [43] Mr Peart accepts that natural disc degeneration or age-related changes are excluded from being personal injury under s.26 of the Act; and that, if ACC can show that those things were the cause of Mr Baillie's presentation in May 2009, then ACC was justified to suspend entitlements. However, he submits that if ACC cannot prove that, or if there is uncertainty, then this appeal should succeed. [44] I must stand back and consider the matter afresh and identify whether the evidence establishes that the appellant was not entitled to continue to receive entitlements as at 14 May 2009. [45] Section 117 expressly provides that ACC must consider all the information in its possession when considering suspension. Such information must necessarily include prior covered injuries and long periods of incapacity (with weekly compensation paid) in respect of the same symptomology. Mr Peart puts it that such information has not been properly considered, nor were the correct questions put to Mr Kelman for his advice; so that ACC's decision is unsafe and should be quashed. [46] Mr Peart also submits that the evidence from the Pain Specialists, Drs Laubscher, Butler, and Large should be preferred to Mr Kelman for two reasons. Firstly, the former three doctors are experts in chronic pain and are best placed to diagnose the nature and cause of that condition. Secondly, Mr Kelman was significantly disadvantaged because ACC did not ask him the relevant questions in view of the 1997 disc injury and historical periods of incapacity, nor was he provided with all relevant material. [47] Accordingly, Mr Peart submits that the evidence establishes, on balance of probabilities, that Mr Baillie's incapacity in May 2009 was due to his covered personal injuries; and that the weight of evidence on file supports the most likely explanation being a causal relationship between his covered disc injury in 1997 which was significantly aggravated in October 2008 causing the main incapacitating feature of chronic mechanical lower back pain. The Medical Evidence [48] Mr Kelman completed his first report on 28 November 2008 and concluded that the appellant was suffering from "mechanical back ache arising from L5/S1 disc disease". At that time he did not consider that the effects of the 12 October 2008 injury had resolved and he confirmed a causal relationship between that injury and the appellant's ongoing symptoms. However, he also stated: "There is no doubt that this accident aggravated a pre-existing condition which I consider to be at L5-S1, it was previously symptomatic for which he has had previous exacerbations." [49] Mr Kelman revisited the issue subsequent to obtaining an up to date MRI on 2 December 2008 (refer his updated report 18 December 2008). He concluded that the scan showed widespread areas of disc disruption within the lumbar spine. [50] In a third report dated 4 May 2009, Mr Kelman again confirmed a diagnosis of mechanical backache without any neurological deficit and concluded that the effects of the October 2008 injury were spent. He put it: "The findings in the MRI scan are not causally linked to the accident of 16. 10.2008. I would suggest that the disc bulges which are present at all lumbar levels have been present for some considerable time and would predate the injury of October 2008. The pathology which occurred in 2008 would have been an exacerbation of lumbar backache aggravating the pathology which was already present and possibly causing some soft tissue, ligamentus and muscular injury. Under normal circumstances such exacerbation settled within 3 months of the injury with appropriate treatment of analgesia, anti inflammatories and a functional reactivation programme. I would consider that the direct effects of the accident of 16.10.2008 are now spent and his residual problems are secondary to a generalised lumbar spondylosis which has been present for a considerable number of years." [51] Accordingly, Mr Kelman confirmed that the appellant was suffering from mechanical backache related to a pre-existing degenerative condition so that the effects of the most recent injury in 2008 were spent. Mr Kelman does not raise the issue of chronic pain syndrome. Other Specialist Evidence [52] Other specialists who assessed the appellant leading up to ACC's 16 October 2008 decision seem to have similar views to Mr Kelman, namely: Mr Laubscher reported on 9 February 2009. He also diagnosed mechanical low back pain. He agreed that a discogenic source was most likely, and did not diagnose a chronic pain syndrome at that time Dr Aamir, Psychiatrist and Pain Medicine Specialist, reported on 23 March 2009. He also diagnosed non-specific musculoskeletal low back pain and did not diagnose a pain disorder at that time. Professor Gorman reported on 30 April 2009 and also agreed that the appellant was suffering from multiple disc disease with posterior bulging. in a further report dated 24 July 2009, Professor Gorman refers to the October 2008 injury as having exacerbated pre-existing symptoms. At the Review hearing, evidence was given by Dr Wilson, an ACC Branch Medical Advisor. She summarised the medical evidence and agreed that it 8 indicated that the appellant's current symptoms related to a pre-existing degenerative condition (as opposed to chronic pain). She considered that the pre-existing degenerative condition at multiple levels of the spine was clearly unrelated to any trauma, particularly, because it was situated at multiple levels as opposed to one level, which would have the potential to be in keeping with an acute pathology. [53] Accordingly, there is a general consensus that the cause of the appellant's ongoing symptoms, as at May 2009, was a pre-existing degenerative condition. There is no evidence that this degenerative condition was causally related to the 2008 injury (or any earlier injury). [54] ACC's 14 May 2009 decision suspended entitlements only in relation to the 2008 injury. If the appellant's position is that his symptoms are related to the earlier 1997 injury (and the medical evidence does not appear to indicate that that is the case), then entitlements could potentially still flow from that claim, but that is not an issue that falls within the scope of this appeal. [55] I understand that, prior to 2008, the appellant was suffering from a combination of chronic pain and chronic fatigue related to his 1997 injury. However, none of the specialist evidence leading up to ACC's 14 May 2009 decision indicated that the appellant's incapacity was in relation to either chronic pain or chronic fatigue. The appellant was assessed by TARPS at the time and no chronic pain was noted on their assessment. At review, the appellant gave evidence that his chronic fatigue was no longer an issue. Evidence for the Appellant [56] The appellant particularly relies on two further reports from Dr Butler of TARPS, both dated 14 September 2010, in which Dr Butler indicates that the appellant suffers from persistent post-traumatic low back pain syndrome and concluded: "I think the background pathophysiology of this man's difficult ongoing low back pain is likely to be fundamentally a central neuro sensitisation disorder, in association with disc degenerative and facet joint degenerative changes in the low back region. (See attached radiology reports)." [57] Ms Becroft did not seem to dispute Dr Butler's evidence as far as it went, but noted he is not commenting on the appellant's symptomology as at May 2009 and that he did not assess the appellant until mid 2010. She accepts that the appellant may well have been suffering from chronic pain in 2010 but notes that assessments leading up to ACC's 14 May 2009 decision did not reveal such a diagnosis. [58] Dr Butler indicates that the appellant's chronic pain is related to a degenerative condition but does not indicate that the degenerative condition is causally related to any particular covered injury. Further elaboration is found in Dr Butler's second report as follows: "Mr Baillie has persistent non-specific low back pain in the midline, the word non specific implying that the exact causation of his pain is uncertain, perhaps related to mechanical issues in relation to disc degenerative/facet joint degenerative changes in the low back, perhaps regional nerve sensitisation 9 based on a postulated central neural sensitisation disorder, and perhaps a culmination of these two pathophysiologics." [59] Although Dr Butler indicates that the 1 November 1997 injury is likely a material cause of the appellant's pain condition, he does not explain the causal nexus in light of the pre-existing degenerative condition. [60] I agree with Ms Becroft that, ultimately, Dr Butler's report raises more questions than it answers. It does not show that the appellant's symptoms as at May 2009 were causally related to the 2008 injury, which is the sole issue for my determination. Further Evidence from Mr Kelman [61] On 31 October 2011, Mr Kelman reported and considered Dr Butler's report. He agreed with Dr Butler's diagnosis of persistent non-specific low back pain related to mechanical issues and indicated that the appellant may well have gone on to develop a chronic pain syndrome with central neural desensitisetion in relation to that. In terms of the 2008 injury, he stated: "That an accident occurred is beyond doubt, however the injury which he sustained as a result of that accident did not produce any significant changes to the lumbar spine as the changes are widespread and reasonably uniform. I therefore postulated that he suffered a soft tissue muscular and ligamentus injury at the time of the second accident and I would consider that the specific effects of this injury would take 3 to 6 months to recover and are now spent. In summary therefore I would consider that Mr Bailey does have degenerative disease of the lumbar spine, I do not consider this to be traumatic in origin and I believe that out of this he has developed a central sensitisation pain disorder." [62] Mr Kelman confirms that, in his view, the appellant's symptoms are in relation to a pre-existing degenerative condition which is unrelated to either the 2008 injury or any earlier injury. With regard to Dr Butler's opinion, Mr Kelman agrees that it is possible that the appellant is now suffering from a pain disorder but (he puts it) that pain disorder would be in the context of the appellant's pre-existing degenerative condition, as opposed to being injury-related. My Conclusion [63] When I stand back and absorb the evidence, I find that on the balance of probabilities the weight of evidence supports ACC's 14 May 2009 suspension decision made on the basis that Mr Baillie's ongoing symptoms were no longer causally related to his injury of 12 October 2008. [64] Simply put, there was ample evidence as at 14 May 2009 for ACC to be not satisfied, on the balance of probabilities, that the appellant was entitled to continue to receive entitlements. I agree with the decision of the Reviewer Mr H Sanderson. 10 [65] Accordingly, this appeal is dismissed. r Judge P F Barber District Court Judge WELLINGTON Al 506-09.doc(aw)