Jenkins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 289 199 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 PHILLIP JENKINS DCA 220/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 14th day of September 1999 APPEARANCES: Mr A Hope, counsel for appellant Mr N Dentice, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE This is an appeal from two separate decisions of a Review Officer, both delivered on 30 April 1998, which involved the same issue, namely, whether the appellant has any ongoing entitlements in respect of a back injury suffered in February 1987 and for which he was granted cover. 2 The facts which are relevant to this issue are as follows. The appellant is now aged 45. In 1987 he was employed by New Zealand Railways as a shunter and had been so employed for some 12 or so years. On or about 8 February 1987 the appellant suffered an injury to his back when he fell from a wagon whilst shunting. It seems as though this injury did not result in time off work and he did not see a doctor until about a week later when he continued suffering back pain. The appellant lodged a claim for cover in or about June 1987 and certain costs of treatment were met by the respondent in respect of the physiotherapy and other treatment provided by his GP and others. At some stage, whether before or after the back incident, the appellant also suffered an injury to his elbow and this also involved a claim for cover. In January 1988 the appellant's GP, Dr Rooke, referred him to Mr I D Brown, Orthopaedic Surgeon, for his elbow which was continuing to give him trouble. Mr Brown's report of 1 1 January 1988 to Dr Rooke notes that the appellant has had a recurrence of pain associated with this tennis elbow and that it was Mr Brown's opinion that matters had reached the stage where it ought to be dealt with surgically. At this examination Mr Brown also noted the fact that the appellant had mentioned the problem of mid thoracic back pain which he had had for about eight or nine months. Mr Brown went on to state: It is intermittent usually associated with mechanical stresses although sometimes occurring spontaneously. He has tended to associate this with pain on the left side of his chest which occurs again without any obvious provocation, not necessarily associated with back pain. There is a slight tenderness in a localised segment in the middle third of his thoracic spine but he has free thoracic movements without producing pain. His x-rays show segmental wear changes at one level of the thoracic spine and this may be likely to be responsible for his back ache. I do not think there is any alternative to a very simple conservative programme for this. He has had some physiotherapy but has never been on a full programme of exercises. I will ask the physio at Braemar to get him onto a full back programme when he is up there having his elbow treated. In 1988 the appellant appears to have had certain psychological difficulties associated with stress in his job with New Zealand Railways and in November 1988 he was referred to a clinical psychologist, Trudy Leibbrand. She reported to New Zealand Railways on 23 November 1988, noting that in 1988 he had been a regular member of the stress management and relaxation class. She went on to state: Mr Jenkins presented with a whole series of stress-related symptoms such as chest pain, heart racing, pins and needles, dizziness, sleep disturbances, headaches, blurred vision and felt fatigued and lacked concentration at times. During the course of treatment it became clear that his work seemed to be the major stressor in his life. We could not identify any other definite reason for his multiple signs of stress apart from some minor distress within his family system. He indicated that the symptoms started to develop about two years ago at the time when he had a work accident resulting in an injury to his right arm. His 13 years of ongoing shift work definitely add to the persistence of his symptoms. I would recommend and support his idea to stop shift work and to alter his work time to normal hours. In November 1988 the appellant was examined by Dr R North at the request of New Zealand Railways and he had the report from Trudy Liebbrand for his examination. In Dr North's report of 21 September 1988 he stated: As requested I examined this man on 28 Novmeber 1988. He has suffered from a number of symptoms, detailed in a report, dated 23 November 1988, from Trudy Leibbrand Clinical Psychologist and described as being stress-related. He says that his symptoms commenced following an injury to his right elbow in October 1986 when he was struck by a wagon. He developed a 'tennis elbow' which required surgical treatment in February 1988 by Mr. I.D. Brown, Orthopaedic Specialist. I saw him in July 1987 because of a back problem, but there appears to have been no mention of his elbow at that time. His back is no longer a problem, although he still gets pain when he becomes 'tense' He has had considerable investigation by his doctor (now Dr. T. Rooke) and by Waikato Hospital, mostly of a general medical nature, but including endoscopy 4 because of gastric symptoms and a barium meal which showed hiatus hernia. A lax cardia was found but no findings of severe reflux. He was told to keep off cigarettes, to keep down consumption of beer and to chew properly. He was given a follow-up appointment at Waikato Hospital but did not keep this. On examination, his weight was 104 kg, and blood pressure 135/90. No other clinical abnormalities were found. Mr. Jenkins admits that shift work is the basis of all his problems. I have discussed this with Dr. Rooke who agrees that there is no organic background and that no further investigation or treatment is required. It would appear therefore that if any alternative day work is available this should be offered to him. " On 14 February 1989 Dr Rooke referred the appellant to Dr Graham Cliff, Consultant Psychiatrist. It is noted that the appellant identified the elbow accident as being the one which was the cause of his underlying stress and this is referred to by Dr Cliff in his report. Dr Cliff stated: The major impact of the accident was psychological rather than physical. Mr Jenkins had a severe fright, and within a few days was suffering from anxiety symptoms which amounted to panic at times. He developed a marked fear of his work when travelling goods wagons and even the thought of work would make him feel sick with fright. He began to suffer from typical somatized anxiety symptoms in terms of cardiac palpitations, sharp chest pain, faintness, nausea and stomach cramps, blurred vision and general weakness. Dr Cliff also identified the appellant's shift work as being possibly the cause of his stress. It was Dr Cliff's recommendation that a test be carried out to see whether the appellant did have a true phobic aversion to work with the railways rather than shift work per se. However it seems that his suggestion to carry out the test was never taken up. The medical notes of Dr Rooke record that in May 1989 the appellant was offered a janitor's job with New Zealand Railways but it seems that this position also caused him stress and ultimately, later in 1989, he obtained redundancy and thereupon went onto a sickness or invalid benefit, that sickness being associated with his stress and psychological condition. It seems that no further claim for entitlements were made to the respondent until 1997 when the respondent received a letter from Mark Franken, Osteopath. Mr Franken had been treating the appellant for mid thoracic pain and he noted that he had a structural shortening of his right leg of 6 mm and recommended that the appellant have his right shoe built up. It was for that purpose that the appellant sought payment of the orthotic costs from the respondent associated with that. It was this request which caused the appellant's file to be revisited but it seems that it had largely been destroyed and only a computer record of the fact of a claim remained. In June 1997 the respondent sought the opinion of Mr R V Jackson, Orthopaedic Surgeon, as Mr Jackson had recently seen the appellant at the direction of his GP. The respondent sought a report on the appellant's current condition and prognosis and for that report he had the benefit of x-rays taken on 13 May 1997, but not x-rays that had been taken in 1987 and 1988. Mr Jackson reported to the respondent inter alia as follows: In answer to the specific questions raised in your letter 29.5.97. Mr Jenkins continues to complain of pain throughout his spinal column. Clinical examination would suggest that he in fact has maintained excellent mobility in his spine, but xrays would suggest he has wide spread degenerative change throughout the spinal column. The prognosis is for the present situation to continue in the short term. In the long term the degenerative changes will increase in severity, he will almost certainly develop increasing symptomatology of increasing pain and stiffness and he may well develop significant nerve root symptoms affecting his lower limbs. Question -2- Are there any underlying medical conditions which could be contributing to Mr Jenkins' condition. Obviously on xray examination he has wide spread spondylitis change throughout his spinal column and in my opinion this is the cause of his present symptoms. Whether this relates to the incident of trauma of 1987 of whether it is part of a natural ageing process is uncertain. Without reference to previous xrays and notes extending back 10 years, it is impossible to be certain on this point. It may be that this man had relatively simple soft tissue injuries or possibly some minor damage to intervertebral disc etc., in 1987. The effects of 6 these conditions would long ago have ceased and the man's ongoing symptoms due to the underlying spondylitis change. It was on the basis of Mr Jackson's report that the respondent advised the appellant that his ongoing symptoms were not as a consequence of personal injury by accident for which he had cover and that therefore he would not be entitled to weekly compensation, transport costs or orthotic assistance as he had claimed. The appellant sought a review of those decisions but those decisions were confirmed by the Review Officer in two separate decisions, she basing her decisions on the advice of Mr Jackson that the effect of any back injury of 1987 had long gone and that the appellant's ongoing symptoms were due to the underlying spondylitis change. For the purposes of appeal to this Court the appellant produced a report from Mr J G Jones, specialist in Rheumatology and Rehabilitation Medicine, to the appellant's GP Dr Simpson. Mr Jones' report stated inter alia: On examination there was no pain related behaviours to speak of. He was a bit tender in the region of T4 on deep palpation. The spinal movements were perhaps a little limited but this was not striking. There was no neurological abnormality in the arms or legs. He brought his x-rays with them and these showed some central collapse of the upper aspect of T4 which was on his earlier films and therefore was long standing. There was also some quite florid osteophyte formation in parts of the lumbar spine and at the lower thoracic spine on the right. These are the early stages of Diffuse Idiopathic Skeletal Hyperostosis (DISH). DISH on its own does usually does not cause symptoms. Examination seems to center his symptoms on T4 which would explain the radiation around the chest wall. It is more difficult to explain why he should get paraesthesia in the left arm and on the left side of the face. I wonder if at one stage there was an element of hyperventilation. I explained his injuries on these grounds and went through his x-rays in great detail with him. I think it is important to try and get his health beliefs straight. I said that the injury to T4 would have healed by now and that the cause of his pain is probably postural. 7 The respondent sought clarification from Mr Jackson on the question of the injury to T4 and provided him with the earlier x-ray reports and previous specialist reports, it being noted that Mr Jackson had not had those reports when he had earlier reported to the respondent. Mr Jackson advised: It is my opinion that the spondylitis changes noted are on a constitutional basis ie age related and do not reflect the effects of Mr Jenkins' injury of 1987. Submissions Mr Hope, counsel for the appellant, submitted that the pain suffered by the appellant was caused by his back injury of February 1987 and/or the aggravation of that injury caused by the pounding of his right leg as he repeatedly jumped off wagons and not by degenerative changes. Counsel submitted there was a causative link between the shortening of the leg and jumping off the wagons. Counsel referred to the opinion of Mr Jones that DISH on its own usually does not cause symptoms and therefore the pain experienced by the appellant is not attributable to degenerative changes. Counsel further submitted that it was not incumbent on the appellant to diagnose the injury, but rather all he need do is provide the facts which he says give rise to an entitlement. It is for the respondent to investigate the facts as asserted. Mr Dentice, counsel for the respondent, submits that the appellant has failed to establish that his present condition is as consequence of personal injury by accident and that it is not a personal injury for which he had earlier been granted cover. Counsel further submitted that there was no evidence to suggest that stress, which may have been the reason for the appellant leaving his employment, was a consequence of personal injury. 8 Finally counsel submitted that there was no evidence of any causative link between the jumping off wagons while working for New Zealand Railways and the structural shortening of his leg. Decision The appellant's medical history indicates that he suffered a minor back injury in 1987 and, for him, a more serious injury to his elbow some months previously. The contemporaneous medical evidence regarding the appellant's injuries by accident are those contained in the reports of Mr Brown, Mr North, Trudy Liebbrand and Dr Cliff. In addition there are the medical notes of the appellant's GP. The clear picture that those reports paint is one of an elbow injury which required surgical intervention and which seems to have been the cause of psychological and stress related problems for the appellant in relation to his employment tasks as a shunter. Very much as a secondary matter was the question of pain in his thoracic spine and, at least by December 1988, it is the opinion of Mr Brown that the appellant no longer has a back problem although he still has some pain when he becomes tense. Dr Cliff identified the appellant's stress related complaints as coming from the elbow accident but the fact of the matter is that there has been no evidence adduced which would establish that the appellant is still suffering from any stress related condition associated with the personal injury by accident to his right elbow. As I understand the appellant's claim, it is solely for pain associated with his back and it is that which is the cause of his alleged disablement. Certainly it is that which has been certified as being the basis for him being on an invalid benefit for all these past 10 years. The more recent evidence from Mr Jackson and Mr Jones I find is not in conflict and certainly Mr Jones does not contend that the appellant's present condition of pain in his back is attributable to any injury by accident. In fact he is of the opinion that the 9 appellant's injury to T4 would have healed and the cause of his pain was probably postural. Mr Jackson, for his part, observes that the appellant has widespread degenerative changes throughout his spinal column and these are the cause of his present symptoms. Whilst it is noted that that opinion was given without the benefit of seeing the x-rays of 1987, Mr Jackson subsequently revisted that opinion following examination of the appellant's medical records, including x-rays, and confirmed that earlier advice. The distillation of the medical evidence I find does not identify any causative link between a minor trauma to the appellant's back in February 1987 with the diffuse pain which his back is now causing. Furthermore I find that there is no evidence to suggest any stress arising from any injury by accident as being a cause of his present condition and the report of Dr Cliff must be taken as being a report of the appellant's condition at that time and cannot be said to have applicability today, it being the case that the appellant has not had the source of the stress which Dr Cliff identified for the past 10 years. For the avoidance of doubt I dismiss stress as being a possible cause of the appellant's present condition. Finally I consider the appellant's claim or orthotic expenses. Whilst it is accepted on the evidence of Mr Franken that the appellant's right leg has shortened, there is no evidence to suggest that the cause of it has been due to jumping off rail wagons and landing repeatedly on one leg. To note that fact and then associate it with the shortening of the leg I find would be asking the Court to make a quantum leap and for which there is no evidence whatsoever, save for the juxtaposition of those two facts in Mr Franken's report. He did not, as I read him, assert cause and effect. The conclusion which the Court reaches is that there is simply no evidence that the appellant's present condition is attributable to the personal injury of February 1987, 10 that is personal injury by accident. This decision does not purport to decide in any way whether or not this appellant might have a claim for personal injury by gradual process arising out of his employment with the New Zealand Railways and relating to the jarring of his body by the constant jumping from railway wagons and any physical consequences that may have flowed from that. For the foregoing reasons therefore this appeal is dismissed. 13 th DATED at WELLINGTON this day of October 1999 Leathe M J Beattie District Court Judge 220.98.Jenkins.