Brouwers v Accident Compensation Corporation

IN THE DISTRICT COURT AT NEW PLYMOUTH [2016] NZACC 64 ACR 70/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN PAUL BROUWERS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 12 February 2016 Appearances: P Brouwers in person P McBride for the respondent Judgment: 15 March 2016 RESERVED JUDGMENT OF JUDGE JH WALKER [1] The appellant in these proceedings is Paul Brouwers and the respondent is Accident Compensation Corporation (the Corporation). [2] The appeal is pursuant to s 149 of the Accident Compensation Act 2001 (the Act). Background "3] The appellant obtained cover for a back injury for a work related accident which occurred on 29 May 2010 when he was lifting a heavy roof truss. Cover was granted for a lumbar sprain. [4] On 25 July 2013, following an MRI on 19 February 2013, Dr Boheimer applied to the Corporation for funding of a right L4/5 foraminal steroid epidural for pain management. [5] The Corporation obtained a report from Mr Peter Hunter, orthopaedic surgeon on 3 September 2013 which stated the MRI described a degenerative disc disease at L4/5 and that a causal link to fund the IPM had not been established. The Corporation made a decision dated 3 September 2013 which was forwarded to the appellant declining to fund the pain management costs. A review was sought. [6] Dr Haldane, chiropractor, by letter dated 12 October 2013 expressed views about foot and toe symptoms being initiated by the back injury and supported the treatment requested by the appellant. [7] A review hearing occurred before Reviewer K Howell on 23 January 2014 and a decision was issued on 27 January 2014 (although misdated 2013). The reviewer found the ACC decision was correct and the review was dismissed. [8] The appellant filed a Notice of Appeal on 20 February 2014. [9] The appellant filed a number of documents prior to the appeal hearing and spoke to them. [10] The Corporation filed a bundle of documents and filed written submissions and also spoke to them. Position of the Appellant [1 1] In his Notice of Appeal the appellant relied on historical advice given to him at the time of an earlier back injury, approximately 24 years before, covered by the Corporation when he stated he was advised by his GPs that he was, and would always be covered by the Corporation for any further ongoing treatment that may be required. [12] In addition to the evidence of Dr Boheimer he also referred to his present health professionals: [a] Dr Neil Haldane, a chiropractor who had stated "I have no doubt that Paul's right foot and toe symptoms were initiated by the accident on 29 May 2010"; and [b] Mr Simon Hadlow, orthopaedic surgeon stated "His symptoms do date to his injury lifting of 29 May 2010". [13] At the hearing the appellant also produced a letter from Ms Munro, the occupational health nurse at his place of employment Fitzroy Engineering dated 24 June 2014. This letter states that: Paul shall have intermittent pain and discomfort in his lumbar spine that involves predominantly his right leg and foot with sciatic like symptoms. The Respondent's Position [14] The Corporation's counsel referred to the applicant having made six previous claims of spine/strain injuries in respect to the same area of his back. His submissions state that the MRI disclosed degenerative disc disease at L4/5 that had not been caused by the single event trauma of 29 May 2010, and indeed was a gradual process condition. [15] The respondent's counsel referred in particular in the report provided by Mr Peter Hunter, orthopaedic surgeon of 3 September 2013 which noted that the MRI described a degree of degenerative disc disease at L4/5, that the injury was not caused by a single trauma on 29 May 2010 and was a gradual process condition. In addition Mr Hunter stated a causal link to fund IPM had not been established. The Medical Evidence [16] Subsequent to the accident in 2010 the appellant's doctor Dr Boheimer filed ARTP (Assessment Report and Treatment Plan) dated 25 July 2013. [17] Under the heading 'Consultation' the ARTP states: This patient was referred to me by Mr Simon Hadlow for a L4/5 foraminal steroid epidural. The original injury occurred on 29/5/2010 at work at Fitzroy Engineering when he was lifting a truss frame from a bending position. Since that time he has suffered from pain in both legs right worse than left. Currently the pain is most predominant in the right foot. He is aware of the pain most days. Initially he sought treatment with chiropractor Neil Haldane who eventually referred him to Simon Hadlow. [18] Dr Boheimer also referred to a copy of communication that he had from Mr Hadlow dated 26 February 2013. This stated: Diagnosis: L4-5 disc bulge with annular tear, with right L5 root irritation. I'd be grateful if you could consider this pleasant 56 year old patient with right radiculopathy for a right L4-5 foraminal epidural steroid. There is no compression of the right L5 nerve root, but disc bulge at L4-5 is more to the left side, but he does have a fairly extensive annular tear which could conceivably be transmitting some chemical irritation to the L5 root on the root. [19] Under the heading 'Diagnostic Tests' Dr Boheimer includes a copy of the report sent to Mr Hadlow which states: MRI L spine nil GAD, 19 February 2013. INDICATIONS: likely right L5 root irritation. FINDINGS: conus terminates naturally at L1. T12/L1 and L1/L2 discs are normal. L2-L3 shows minimal desiccation but no evidence of protrusion or root compression . L3/L4 shows generalised bulging with some desiccation but no evidence of other abnormality. L4/L5 shows desiccation with a predominant central annular tear (2/7) and a moderate central and left-sided disc bulge. (4/12) this is causing early lateral recess impingement of the L5 roots bilaterally. Vertebral foramina remains patent. [20] He does not include the last two lines of the report from the radiologist Dr Feltham which states: L5/S1 disc remains relatively normal. No evidence of a right sided foraminal abnormality at this level. CONCLUSION: L4/L5 annular tear and centre disc protrusion. [21] The ARTP also confirms Dr Boheimer's physical examination of the appellant. [22] The next document chronologically is the report from Mr Peter Hunter, orthopaedic surgeon, CAP member dated 3 September 2013. This states in full: I have not interviewed or examined the client. I accept the examination findings and diagnosis of the specialist who prepared the ARTP. Comments are made on the basis of the consensus that the Clinical Advisory Panel has reached and which the individual members used to guide the advice. My comment is limited to whether I consider that the information provided to me has established the causal link between: The current injury covered by ACC and The condition for which the surgery is requested. Consideration of previous claims is limited by the information provided for the current claim. ACC Medical Comment DOI 27 May 2010 cover for lumbar sprain, side not applicable. Same area previous claims. MRI describes a degree of degenerative disc disease at L4/5. This has not been caused by a single event trauma on 29/5/2010 and is a gradual process condition. A causal link to fund IMP cannot be established. [23] A decision letter of the same date was forwarded by ACC to Mr Brouwers which states: Boheimer Provider Services have applied to ACC on your behalf for help with the cost of your pain management procedure. After careful consideration, we're sorry to say your application has not been approved. WHY WE CAN'T APPROVE YOUR APPLICATION Before we can fund your pain management procedure, we need to ensure the procedure is required to treat the injury we have agreed to cover, and not an unrelated or pre-existing health condition. After reviewing all the information available to us, we consider that the need for the procedure is not primarily due to your injury on 29/05/2010. [24] In the decision letter the Corporation refers to the medical comment provided by Dr Hunter. [25] Subsequently, there is a report provided to the appellant from Mr Simon Hadlow from the New Plymouth Orthopaedic Centre dated 30 September 2013 which states: This patient injured his back 29/5/10 lifting a roof stress with subsequent pain from the back radiating down the right leg through the buttock, thigh and calf to the top of the foot consistent with an L5 radiculopathy. When assessed on the 15/1/2013 he showed good lumbar motion with normal straight leg raising and normal lower limb neurology, the only mild abnormality being a diminished right medial hamstring reflex. His MRI scan showed loss of signal lower four lumbar discs with associated posterior building, with a left central bulge and annular tear at L4-5 but no frank right sided lower lumbar nerve root compression from any of these bulges. The presumed diagnosis was of annular tear of the L4-5 disc giving him a chemical irritation of the L5 nerve root although this has not been clearly imaged in his recent MRI scan. Based on his clinical presentation a referral was made to Dr Boheimer for a right L5 foraminal epidural steroid. His symptoms do date to his injury lifting in 2010. [26] The appellant's chiropractor Dr Haldane has also provided two reports. The first is dated 12 October 2013. This states that Mr Brouwers consulted Dr Haldane on 31 May 2010 following the lifting accident on 29 May 2010 which resulted in immediate onset acute lower back pain and right sided L5/S1 distribution sciatica. [27] Dr Haldane states: ... he still has ongoing numbness and paraesthesia in the right L5 dermatome (mainly the dorsal foot and great toe), now of three and a half years duration, since lifting heavy roof trusses which in a bent/flexed position on the 29/5/10. I have no doubt that Paul's residual right dorsal foot and great toe symptoms were initiated by the above injury, and this is substantiated by both the plain film x-ray findings of 29 August 2012 and the MRI of 19" of February 2013. I would strongly support the x-ray guided cortisone treatment plan as proposed. [28] Dr Haldane's further report dated 18 March 2014 states: TO WHOM IT MAY CONCERN Further to my letter of 12 October 2013 this is reiterate that: 1. Lumbo-pelvic plain film x-ray examinations were performed on 28/10/98, 09/10/1995, and 08/05/2000 all show no or only very minimal degenerative change in the lower lumbar spine. 2. I have no doubt that Paul's current symptoms stem from the injury sustained on 29 May 2010. 3. Lumbo-sacral plain film x-ray performed 29/08/2012 demonstrates a significant increase in degenerative change, consistent with the 27 month timeframe from the date of injury. 4. MRI of the lumbar spine performed 19/02/2013 demonstrates L4/5 disc annular herniation and prolapse, again, consistent with the injury as described. 5. I consider it to be abundantly clear that Paul's current symptoms stem from the right L5 nerve root impingement by the L4/5 disc. 6. I therefore consider it to be absolutely incongruous to consider that Paul's current symptoms stem from some absolutely minimal pre- existing degenerative changes, rather than the discogenic damage that has been clearly demonstrated to have occurred at or since the injury on 29th of May 2010. [29] The final medical evidence is from Ms Munro, occupational nurse, of 24 June 2014. She states: On assessment day, he [Mr Brouwers] stated in the past four years he has seen doctors and specialists for x-rays, MRIs and other health assessments with no avail until very recently when he was advised his symptoms were due to 'degenerative causes". Paul still has intermittent pain and discomfort in the lumbar spine that involves prominently his right leg and foot with sciatic like symptoms. Paul believes that his ongoing back issues are a direct result of this injury in 2010 as the immediate symptoms never resolved. The Law [30] A "personal injury" is defined in s 26(1) of the Act to include: 26 Personal injury (1) Personal injury means- the death of a person; or physical injuries suffered by a person, including, for example, a strain or a sprain; or [31] Subsection (2) however states: (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). [32] The exceptions in s 20(2) (e) to (h) include work related gradual process injuries which are not the basis of this decision. [33] It should be noted however that the review decision the reviewer stated: I note that Mr Brouwers works in an engineering firm. I do not know how long he has worked there, but he may meet the criteria for work related gradual process. This may be something he may wish to pursue in consultation with his GP. [34] In his submission counsel for the Corporation also sets out the approach of the District Court to appeals, citing the Court of Appeal decision of Wildbore v ACC.1 [35] The submissions state: 29. For the Appellant to succeed, he must show on the balance of probabilities that the accident is causative of the injury for which he [2009] 3 NZLR 21 applied for cover; and that the injury is not caused wholly or substantially by a gradual process, disease, or infection. THIS CASE 30. In this case, the specialist medical evidence is that of Mr Hunter, Orthopaedic Surgeon, and Mr Hadlow, Orthopaedic Surgeon. Mr Hunter is definitive as to the MRI and the statement of (lack of) causation. Discussion and Analysis [36] It is accepted that the issue that is pivotal to the determination of these proceedings is whether the appellant's pain was a condition caused by the accident of 29 May 2010. [37] The mechanism of the accident in 2010 in fact get scant mention. It would seem that the appellant regarded this injury like the others he experienced where chiropractic attention was all that was required and there is no evidence to support that his chiropractor, Dr Halane, also thought otherwise until several years later. 38] There is no medical evidence at the time which suggests it was anything other than a sprain or that there was likely to be any serious outcomes. [39] Accordingly the cause of the 2010 accident is now viewed, particularly by the appellant and his medical advisors, through a retrospective prism. Given that no further injury has occurred, the appellant concludes that this is the cause of symptoms which were noted in 2013 and led to the present claim for treatment. [40] It is acknowledged that the appellant historically had six events of earlier spinal injuries in the same area and that the earlier x-ray information (not produced to the Corporation or the Court) indicated an increasing deterioration, including the x-ray in 2012. [41] Counsel for the Corporaation in his submission relating to causation states at paragraph 21: 21. In Ambros v ACC', the Court of Appeal dismissed its ability to draw robust inferences of causation where medical evidence provided a possible connection between events and injury. It stated at [67]: A Court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture. 22. And further at [70]: It must however, always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a Court to draw even a robust inference on causation. Risk of causation does not suffice. 23. Further, the High Court in Johnson v ACC HC Wellington CIV-2010- 485-424, 12 April 2011 found that Ambros has not changed the test of causation and confirmed that "... on-going ACC coverage for incapacity depends upon the present incapacity being linked to an injury caused by the accident". [42] Counsel for the Corporation in his oral submissions referred specifically to the medical reports. With the exception of Mr Peter Hunter's report the health professionals of the applicant do not address the issue of any causal nexus between the injury in 2010 and the symptoms in 2013 when treatment was sought. [43] Counsel for the Corporation in his submissions has succinctly dealt with situations of cover in cases where there is pre-existing degenerative conditions. He submits: 25. The leading authority regarding pre-existing degenerative conditions remains the High Court decision of McDonald v ACC' [2002] NZAR 970. In Mcdonald, the question at issue was whether an accident that rendered symptomatic a pre-existing degenerative condition that had not been symptomatic resulted in cover under the Act. 26. Pankhurst J held: An accident remains causative until such time as disease (or other excluded conditions) is causative of the relevant injury to at least a substantial degree. ACC v Ambros [2008] 1 NZLR 340 Actually reported as McDonald v Accident Rehabilitation and Compensation Insurance Corporation [2002] NZAR 970 27. Furthermore at [26], His Honour cited with approval the following passage from the decision of Hill v ACC [1998] NZACC 189: [But] the provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. 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. The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter the basis principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature. [44] It is accepted that the symptoms displayed by the appellant for which treatment is sought are not questioned by the ACC and it may well be that they have been present since the accident in 2010. This however is not to say that the injury in 2010 caused the symptoms. [45] There is no medical evidence to refute Mr Hunter's report that the MRI displayed a degree of degenerative disc disease at L4-5 and the injury was accordingly not caused by a single evident trauma in 2010 but is a gradual process condition. [46] The appellant's chiropractor is of the view, referring to x-rays on 28/10/88, 09/10/1995 and 8/5/2000 (10 years prior to this injury) that there was minimal degenerative change, although acknowledging a plain x-ray of 29/8/2012 showed significant increase in degenerative change. The Court has been provided with a letter Dr Haldane wrote to the applicant post the review hearing. Although he accepts Mr Hadlow's presumed diagnosis of an annular tear of the L4/5 disc giving the appellant chemical iridium of the L5 nerve root, he is adamant that the current symptoms stem from the injury in May 2010,. Actually reported as Hill v Accident Rehabilitation and Compensation Insurance Corporation [1998] NZACC 189 This however does not establish a causal link between the covered injury and the symptoms now presenting. [47] As referred to in ACC v Ambros [2007] NZCA 304, (2008) NZL 340, what is very clear is that a temporal connection per se, is not proof of a causal connection. [48] Mr Hunter is an orthopaedic specialist and his evidence is definitive based on the MRI findings that there is degenerative disc disease at L4/5, which could not have been caused by a single event trauma on 29 May 2010. Nor is his statement that there is lack of evidence of causation challenged by the other health professionals. [49] It is noted that Mr Hadlow, in his report of 30 September 2013, also records on the basis of the MRI, significant deterioration. [50] Mr Hadlow's response to Mr Hunter's opinion in his report of 30 September 2013 is that he attributes commencement of symptoms to the lifting injury in 2010 but does not state the injury was the cause of these symptoms. [51] It is stated by counsel for the Corporation in his submissions at paragraph 31: ... The question in this case is properly one of cause of the condition, and not triggering of symptoms. McDonald and Cochrane. [52] Counsel for the Corporation was somewhat critical in respect to the evidence as to Dr Haldane and questioned him referring to himself as a doctor with lack of qualifications which would support this in the New Zealand context. In addition he questioned Dr Haldane's level of expertise which led him to definitively attribute the appellant's symptoms in 2014 to an injury sustained in May 2010. [53] It would seem Dr Haldane attributes the appellant's pain to discogenic damage which occurred at or since the injury, however discogenic pain also originating from a damaged vertebra disc may be attributable to a degenerative disc disease. Cochrane v Accident Compensation Corporation [2007] NZACC 112 [54] As to the appellant's own view, it is of course subjective and may well be associated in his mind with the undertaking he received from his GPs some 25 years ago. An ACC claimant is able to give evidence of symptoms, but not of the cause of those symptoms. Sound reasoning is necessary for the medical evidence to reach the necessary standard. [55] It is noted that the Reviewer and counsel for the Corporation also referred to a potential gradual process work related claim which the appellant acknowledged he had not pursued. Nor as the appellant acknowledged, has he subsequently obtained any further treatment for the pain referred to. [56] Taking into account the differences in the medical opinions I find that Mr Hunter's report as to the MRI findings (disc disease at L4/5, concluding that the 2012 symptoms are not the result of a single event trauma on 29 May 2010 but a gradual process condition) is compelling, and effectively unchallenged. [57] The radiology shows longstanding degeneration which has been commented on by the health professionals involved in his care and even noted by Dr Haldane as early as 1988. [58] I accept the reviewer's conclusion that: There is no disagreement that the 2010 accident has made these changes symptomatic, but the medical evidence does not show that the 2010 or any other accident is the cause of the need for the epidural. Conclusions [59] Having given consideration to all the medical evidence now before the Court, including the additional evidence supplied by the appellant, while it is accepted the appellant has suffered back pain I do not find it is causally linked to the 2010 accident. 6 See Anderson (59/06) and olive (100/99 [60] There is consistent evidence in the radiology of longstanding degenerative changes which would occur naturally with age. I accept the medical evidence of Dr Hunter that the 2010 accident is not the cause for the need to obtain the epidural in 2013. [61] The symptoms however are consistent with the identified degenerative condition. [62] Accordingly I find that the cause of the injury in 2010 does not give rise to a treatment entitlement to fund pain management costs and that the ACC decision of 3 September 2013 was correct. [63] Accordingly the appeal is dismissed. [64] In respect to costs they are to lie where they fall. Judge J H Walker District Court Judge Solicitors: McBride Davenport James, Wellington for the respondent ACR 70-14-Brouwers