Collison v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 59 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN PAUL COLLISON DCA 381/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of February 1999 APPEARANCES: Mr A R V Rowlett advocate for appellant Mr L T Davies counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlement to weekly compensation on the grounds that his ongoing back injury is 2 caused wholly or substantially by disease and/or the ageing process and is thereby excluded pursuant to section 10 of the Act. BACKGROUND The appellant is now aged 56 years. He has had a history of back injury and complaint dating back to 1963 when aged 21 and in the army he suffered a back injury whilst carrying a heavy pack on a route march. He continued to experience lower back pain thereafter and was in fact invalided out of the army 9 months after that injury. Medical reports indicate that the appellant continued to experience intermittent back pain thereafter and in November 1985 he suffered a back strain at L4/L5 with referred pain to the left knee following a lifting incident. He was granted cover for this accident and was referred to the back programme at the Medical Rehabilitation Unit Palmerston North Hospital. He obtained employment as a farmhand in late 1986 and continued that employment until March 1989 since which time he has been in receipt of weekly compensation until that was cancelled by the decision of the Corporation delivered on 14 May 1998. The decision to cancel was stated as being made on the basis that medical records and x-rays indicate a long standing, pre-existing degenerative condition in his back as now being the major cause of his incapacity. The appellant sought a review of that decision and in her decision dated 4 September 1998 the Review Officer found that the medical evidence was clear that the trauma of the 1985 accident had not caused the degenerative changes and that it was now the degenerative changes which had occurred in the appellant's back which were the ongoing cause of his disability. She therefore confirmed that section 10 of the Act applied and that continued cover was excluded. As counsel for the parties recognised, the determination of the issue in this appeal relies largely on the medical evidence. The evidence before this Court is the same 3 that was presented at the review hearing and neither party has sought to adduce any further medical evidence. THE MEDICAL EVIDENCE: The first report is that of Dr Alan Farnell, Specialist in Anaesthesia and Pain Relief, dated 20 May 1986 to the appellant's GP, Dr Yee. That report stated inter alia: "I don't feel that a steroid epidural injection is indicated at the present time. Certainly should things deteriorate I would be happy to reconsider this. His major pain currently is located to a wide spread region throughout his lumbar spine and relates to his activities. He has restricted these to a sensible degree and is coping to a better extent. He is not requiring any analgesic medication. I feel he would benefit from a work assessment at the Rehabilitation Unit at Public". The next report is that from Dr Wigley, Director of Medical Rehabilitation Unit at Palmerston North Hospital and dated 10 July 1986: "I saw him today with Dr Shilston. I haven't seen his x-rays yet but it looks as if he has straight forward back strain at the lumbosacral L4/L5 area with referred pain to the left knee rather than sciatica, with persisting pain since then, aggravated by work. He has got rather weak back muscles and there was a possibility of a forward slide of L4 on L5." The next report is that of Dr Cockerell, Orthopaedic Surgeon, who examined the appellant on 12 August 1993. In his report Dr Cockerell noted: "X-rays of the lumbosacral spine taken on 12 August 1993 show minor degenerative changes, but no other significant abnormality. " He then stated: 4 "Mr Collison has a history of an initial attack of low back pain commencing in 1963 while route marching with a heavy pack. He was discharged from the Army nine months later on account of continuing back disability. Although difficult to obtain a history of how much disability his back continued to cause, it appears he did experience intermittent back pain. He was admitted to the Rehabilitation Unit for treatment of back disability in 1974. He was apparently able to do labouring work until 3 years ago when he stopped doing farm work on account of back disability. He experienced an attack of more severe back pain following the lift of a heavy water valve on 25.11.85 and he was then off work for approximately one year. Despite ceasing work 3 years ago he states he has continued to experience back pain aggravated mainly by bending and also by long sitting and walking. Examination shows painful limitation of back movement and of straight leg raising. His disability appears genuine and is probably attributable to disc degeneration. Disability commenced 30 years ago and appears to have been present intermittently since then. The only further injury which aggravated his back pain was the lifting strain in November 1985. It is difficult to state what part this played in his present disability, but probably only relatively minor one. I would assess present disability from his back at 15 percent and allow 30 percent of this, or a permanent total disability of 4.5 percent attributable to the lifting strain on 25.11.85." The appellant was examined by Christopher Williams, Orthopaedic Surgeon, at the request of the respondent on 23 December 1997 and his report dated that day states inter alia: "In his current situation he reports ongoing and progressively worsening lower lumbar back pain... X-rays AP and lateral of the lumbosacral spine confirm multi level degenerative osteoarthritis with particular narrowing of the L5/SI disc space. There is no identifiable pathologic process present, and no demonstrable instability between spinal segments. Mr Collison has ongoing progressive degenerative arthritis affecting multiple levels in his lumbosacral spine. With ongoing musculoskeletal back strain and discomfort secondary to this. I could find no evidence of an underlying pathologic process, or spinal instability or neurogenic impingement today. Mr Collison has now been on full ACC support for his back discomfort for seven years. Symptoms are progressively worsening with time, and I am doubtful that he will be able to return to any manual lifting job or work that requires bending or carrying the future. At this stage, it would be impossible to determine what proportion of current back symptoms relate to his injury in 1985, and what proportion preceded this event. I note that Mr Cockerell's medical report from 20.9.93 suggested that the majority of his back symptoms probably related to his original injury in 1963. I could find no evidence of conditions or defects which might have been present prior to his original injuries. I think that treatment should remain conservative, and would be doubtful that ongoing manipulative therapies, bracing supports, or further rehab assessment would provide significant ongoing benefit for him at this time. " It is noted that it was as a consequence of that report that the Corporation resolved to cancel the appellant's weekly compensation entitlement. Mr Williams was asked for further clarification of his opinion by the appellant's advocate and in the letter dated 31 July 1998 to Mr Rowlett, Mr Williams stated: 6 "As stated in my letter to ACC on 23.12.97, there is no objective way of stating with any degree of accuracy the relative contributions to Mr Collison's current back disability, generated by previous injuries. He now has a history of back discomfort extending for the past 35 years back to 1963, with a known further event in 1985. Whether this latest documented injury has irretrievably worsened the natural history of his condition, would be the subject of pure conjecture, and I am unaware of any validated examinatory process which could elucidate this further. I would be therefore unable to defend in a Court of Law any percentage figure given at this time. The conclusions within my original letter must stand, which are that Mr Collison has long standing presumed post-traumatic degenerative arthritis widespread within the lumbar spine, for which no current surgical solution is available, in the absence of any demonstrable pathologic pre- existing conditions." I regret being unable to provide further assistance here, and believe ultimately the success for any review will come down to a decision on the documented aspects of Mr Collison's history. SUBMISSIONS: Mr Rowlett, advocate for the appellant, submitted that the appellant's condition was post traumatic degenerative arthritis and that two incidents of trauma had been identified, the first in 1963 and the second in 1985. He stated that the evidence was that the appellant's condition and degree of disability had significantly worsened since the 1985 accident and that the estimated 30% of permanent disability given by Mr Cockerell was sufficient for it to be held that the ongoing disability could not be said to be "substantially " due to pre-existing degenerative disease. 7 Mr Rowlett questions whether section 10 of the Act is applicable in view of the fact that the evidence is that the arthritis was caused by trauma and that the appellant's condition is not one caused wholly or substantially by the ageing process. Mr Davies, counsel for the respondent, submits that there is no evidence of any continuing features of the physical injury of 1985 and that the appellant's present condition is overwhelmingly caused by the progressive degenerative arthritis. He submits that the proper inference is that there is no residue of the trauma injury of 1985. Counsel further submits that the evidence establishes that there has been a considerable further degenerative change to the appellant's back since 1993 when Mr Cockerell gave his opinion and that, having regard to the advice of Mr Williams, the disabling features must be attributable to and have their origin in the 1963 injury. Counsel submits that in any event it is not possible to rely on percentages as being accurate and that the body of medical opinion is that any ongoing affects of the 1985 injury are small. DECISION The appellant's medical history indicates that he suffered quite a severe injury to his back in 1963. The injury was sufficient for him to be invalided out of the army and it appears that that injury continued to be a source of concern for him thereafter. When he suffered his second injury in November 1985, it was the opinion of Mr Cockerell who examined him in 1993, that the disc degeneration which was evident by that time, dated back to that first injury. It is to be noted that Mr Cockerell considered that the lifting strain of November 1985 probably only played a relatively minor part in his then present disability. That relatively minor part he assessed as being 30% of that disability. 8 Some four years later when the appellant is examined by Mr Williams the minor degenerative changes which had been noticed by Mr Cockerell in 1993 had become considerably worse and x-rays revealed multi-level degenerative osteoarthritis and that the appellant did have ongoing progressive degenerative arthritis affecting multiple levels of his lumbosacral spine. Mr Williams advises that the appellant has long standing presumed post-traumatic degenerative arthritis, that is that the degenerative changes have been caused by trauma not simply disease or the ageing process. He further advises that it would be impossible to determine what proportion of his current back symptoms relate to the 1985 injury and what proportion preceded that event. Mr Williams' assessment of Mr Cockerell's opinion is that the majority of his back symptoms probably related to the original injury of 1963. There appears to be nothing further in the medical evidence to further clarify the line of demarcation between the two accidents and their ongoing consequences and this Court is left therefore with the two assessments, one that there would be a 70% - 30% division and the other, which talks of the majority of his symptoms being outside the ambit of cover under the Act. Counsel for the respondent has relied entirely on the provisions of section 10 and contends that the evidence establishes that the appellant's present disability is caused wholly or substantially by disease or the ageing process thereby excluding cover. Having regard to the medical evidence I find that that submission cannot be sustained and that section 10 does not even apply in this particular case. The medical evidence is that the osteoarthritis condition was established by trauma, not by natural causes or the ageing process, and the difficulty has been with the specialists trying to determine how much of that condition could be said to have pre-dated the injury for which he had cover under the Act. There is no suggestion that the appellant's osteoarthritis has been caused by the ageing process, it certainly is described as degenerative, but in the case of this appellant the cause of that degenerative condition, which is continuing on, is the trauma of the two injuries. In those circumstances I find the question of whether his condition is "wholly" or "substantially" caused by disease or the ageing process does not apply and that for so long as there is medical opinion establishing that part of the appellant's disability is being caused as a direct consequence of the personal injury by accident for which he had cover, his entitlement to cover continues. There can be no dividing up of responsibility. The disability is indivisible and, as in this case, it is a determination of causation between two injuries as opposed to an injury and a natural disease or the ageing process. In the former, substantial causation is not an issue whereas it is in the latter because it is in the latter case that the provisions of section 10 apply. If the medical evidence was that his present symptoms were wholly attributable to the 1963 injury there would be no dispute but the appellant would not be excluded by S.10, rather by the basic tenet that his incapacity was not due to personal injury by accident for which he had cover. Accordingly then, I find that the respondent was wrong in its decision to hold that the appellant's ongoing symptoms were wholly attributable to the 1963 injury. As was stated by Mr Williams in his letter of 31 July 1998, to hold so would be the subject of pure conjecture. For the reason therefore that the medical evidence favours the opinion that some part of the appellant's present disabilities are due to the 1985 injury, he is entitled to continued cover. 10 Accordingly then, the Corporation's decision is revoked. This appeal being successful the appellant is entitled to costs which I fix at $800.00 DATED at WELLINGTON this 10TH day of MARCH 1999 M J Beattie District Court Judge Collison.doc(gm)