Prince v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH WELLINGTON REGISTRY Decision No. 161/2005 AI 250/02 UNDER Accident Insurance Act 1998 IN THE MATTER of an appeal against Review Decision No. 2469 BETWEEN RATA RIWAI PRINCE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 September 2004 at Palmerston North Interim Decision Herein: 12 January 2005 Date of this Final Decision: 24 May 2005 Appearances: Mr A R V Rowlett, advocate for appellant Mrs S Gillies and Ms J Maslin, counsel for respondent FINAL DECISION OF JUDGE P F BARBER [1] In my 12 January 2005 Interim Decision herein, I emphasised that the correct question is whether the appellant is able to show, on the balance of probabilities, that his ongoing symptoms are in any way caused by the personal (neck) injury of 15 April 1990, which I described in that Interim Decision and for which he has cover. This is because there is now no dispute between the parties that the 1982 Act applies to this case, so that the appellant’s ongoing symptoms need to be “exclusively” caused by the degeneration before entitlements are lost. 2 [2] In this case, there is a significant amount of evidence that the causes of the appellant’s present condition are significant cervical spondylosis, which is a degenerative joint disease, and his regional pain syndrome. [3] I see little point in detailing matters which I comprehensively covered in my said Interim Decision (which include references to applicable law), but my final three paragraphs of that Interim Decision read: “[42] It is submitted for the respondent that the appellant is unable to show that, on the balance of probabilities, his ongoing symptoms are in any way caused by the neck strain he suffered almost 15 years ago; and, rather, it is the appellant’s significant cervical spondylosis, a degenerative joint disease, and his regional pain syndrome, which are the only causes of his present condition. If that is the case, the respondent’s 3 April 2001 decision to suspend the appellant’s entitlements was correct. [43] However, until commencement of the appeal hearing before me, the parties seemed to be applying the wrong test, as explained above, of whether the present condition of the appellant is wholly or substantially caused by degeneration. The correct test in this case is whether that condition is exclusively caused by the appellant’s degeneration. I accept that this is a de novo hearing which can overcome the previous application of the wrong test. However, it concerns me that medical reports may have been sought on the wrong premise i.e. of the test in the 1998 Act; although the respondent’s 9 November 2000 referral letter to Mr Turner is expressed appropriately. [44] It seems to me that counsel should respectively obtain short supplementary reports from at least one of their respective medical witnesses on the correct issue i.e. are the present symptoms of the appellant in any way caused by the accident of 15 April 1990? I direct accordingly and that those reports are to be paid for by the respondent. I reserve leave to apply on any aspect of these directions. Meanwhile, I withhold making a formal finding on this appeal.” [3] The question is whether the appellant’s April 1990 neck injury is still a cause of his ongoing symptoms in any respect or to any degree. The appellant may have continuing entitlements unless his degeneration is now the exclusive cause of his ongoing condition of injury or suffering. He need only show that, on the balance of probabilities, his condition is still caused by the April 1990 injury to some degree. 3 [4] As I said in my Interim Decision, all the medical experts who have assessed the appellant concur that he was already suffering a longstanding and significant degenerative condition in his cervical spine before the April 1990 injury occurred. Dr White and Messrs Saunders and Grayson agree that the 1990 injury aggravated this underlying condition. There is no other evidence that the appellant’s ongoing symptoms are in any way caused by the April 1990 injury except for the medical evidence from Mr Grayson. Dr Turner is unequivocal in his findings to the contrary. I expanded on that theme in my Interim Decision where I also expressed concern that the parties seemed to have been applying the wrong test i.e. whether the present condition of the appellant is wholly or substantially caused by degeneration instead of whether it is the exclusive cause. I sought further supplementary medical reports from at least one medical witness for either party on the correct issue, and I appreciate counsel having facilitated that. [5] Accordingly, I first received a further comprehensive report dated 21 March 2005 from Mr W E D Turner, the well-known occupational physician. Mr Turner categorically confirms and emphasises that he has no hesitation in concluding that the appellant’s current health symptoms are in no way caused by the accident of 15 April 1990. I now set out in full his reasoning for that conclusion as at 21 March 2005, namely: “• The accident described on 15/04/90 was incidental and of insufficient severity in terms of the intensity of trauma involved, to have caused significant injury to the cervical spine to the extent that he would be suffering from severe disabling pain 14 years later. The historical statement that he was simply ‘culling metal plates from the top of a shelf of the filing room’, which involved constant reaching above his head to reach the plates, in no way represents an acute episode of strain to the neck. For example, there was no acute acceleration or de-acceleration force either in a side to side or anterior/posterior direction as does for example occur with whiplash. He was simply raising his arms above his shoulders, which is an activity regularly undertaken in the wider work environment generally with impunity. The fact that Mr Prince developed sudden onset of neck pain ‘as though he had been electrocuted’ does not in any way correlate with a sprain or strain incident. • Mr Prince was subsequently shown by various specialist assessors, in particular Mr J. Saunders, orthopaedic surgeon, to have evidence of decreased joint space with anterior osteophytes at the C5/6 and C6/7 levels consistent with longstanding degenerative changes. Mr Saunders 4 opined that he had longstanding degenerative changes in the cervical spine and that his symptoms were consistent with aggravation of his condition by work on 15/04/90. Clearly Mr Saunders was of the view that the episode of trauma was of minor severity/intensity and that the predominant pathology was the cervical spondylosis or non traumatic degenerative changes. It is of interest that Mr Saunders carried out his examination in June 1992 and that Mr Palmer, orthopaedic surgeon, had the benefit of examining Mr Prince in November 1993. Mr Palmer noted that in a cervical spine x-ray carried out on 26/01/93 that there were ‘advanced spondylitic change at C5/6 and C6/7 with loss of disc height irregularity, facet joint changes in foraminal encroachment’ clearly pointing towards an ongoing advancing degenerative change which was occurring completely independently of the nominated incident on 15/04/90. • My examination failed to show any evidence of an underlying injury lesion that was consistent with his pain symptoms. Rather he manifested the typical findings of a chronic regional pain syndrome with myofascial trigger points evident in the paraspinal, cervical and posterior shoulder and shoulder blade musculature. I therefore concluded that Mr Prince had a chronic regional pain syndrome contingent upon an underlying pre- existing cervical spondylosis which was the basis for his ongoing symptoms. I discounted injury as being the cause of his pain and disability. Clearly the incident on 15/04/90 unmasked his pre-existing primary osteoarthritic cervical spondylosis condition. The fact that Mr Prince had had a previous episode of cervical pain that occurred some two years before the onset of symptoms in 1990 which, by his own admission had ‘occurred without any cause being evident’ at a time when he was working for Felicity Cards, clearly indicates a predisposition to neck pain. Clearly he woke up one morning with a stiff sore neck without any history of prior trauma, the problem resolving in two weeks with treatment. Nevertheless he continued to experience recurrent headaches which he believed were cervicogenic in origin. This clearly points towards an ongoing pre-existing pathology in his cervical spine, which had given rise to spontaneous pain and his cervicogenic headaches. I have little doubt that this incident was in no way dissimilar to the incident in 1990 apart from the fact that one occurred at home when ‘waking in the morning’ and the other one occurred at work. The degree of trauma involved was exactly the same there being no episode of strain, sprain or contusion. Clearly in the 1990 incident Mr Prince were merely carrying out work duties without any change in working technique or work process. • It may well be of interest to Judge Barber that the natural history of whiplash [bearing in mind that the quantum of trauma experienced by Mr Prince on 15/04/90 could in no way be compared with whiplash] is for general improvement of pain levels, however Maimaris C. et al in Nov 1988 carried out research indicating that pre-existing degenerative changes in the cervical spine are a significant factor in the development of chronic pain or the chronic whiplash syndrome.” [6] However, I also have a further response from Dr P C Grayson dated 20 March 2005 (an orthopaedic consultant) which is also succinct enough for me to set out its substance in full: 5 “This is the supplementary report as requested by Judge Barber in his decision of 12 January 2005. The question asked in this decision: ‘Are present symptoms of the appellant in any way caused by the accident of 15 April 1990?’ My answer: ‘Yes’ 1. It is well known that a cervical spine exhibiting degenerative changes is more prone to injury. In this case there seems to be no dispute over the facts of the injury of 15 April 1990 – excessive strain leading to symptoms not noticed beforehand, viz a) Pain and paraesthesia down right arm to hand – typical of an acute disc derangement causing nerve root irritation. This is not typical of a chronic condition such as cervical degeneration. b) These symptoms have continued unabated since and have given rise to a chronic pain syndrome, not present before the accident and making it impossible for Mr Prince to return to work. Symptoms from a chronic disc degeneration tend to be intermittent in nature, usually controllable by analgesic medication and patients can work as long as they can avoid undue strain to their necks. 2. All orthopaedic surgeons who have examined Mr Prince are agreed that he has a permanent disability resulting from injury: Mr Palmer 1993 – 15% WPI Mr Saunders 1992 – 7.5A% WPI My assessment would be – 15% WPI It appears ACC accepted PIBA and ‘upped’ his disability payment under Section 78 on 11 February 1994, on the basis of reports received from Mr Saunders and Mr Palmer. Reading their reports Mr Prince’s medical condition has continued to deteriorate. Mr Saunders and Mr Palmer have had extensive experience in dealing with cases such as Mr Prince’s and would have used the Second Schedule of the ACC Act in making their calculations for permanent loss or impairment of bodily function arising from PIBA. The Schedule states: ‘Cervical spine a) Persistent muscle spasm, rigidity and pain substantiated by loss of anterior curve revealed by x-ray. Although no demonstrable structural pathology, moderated referred shoulder/arm pain. – 10% 6 b) In cases similar to those mentioned in the immediately preceding paragraph, but with gross degenerative changes consisting of narrowing of intervertebral spaces and osteoarthritic lipping of vertebral margins – 20%’ In Light of the Above: Dr Turners’ Report a) He agrees there is marked restriction of neck movement and b) Loss of sensation in the fingers, i.e. evidence of nerve root involvement in cervical spine. c) He has not seen the x-rays, but if it is accepted that there has been PIBA in this case, I would have expected his assessment of WPI to be at least 10%. Dr Shirer’s Report 19 February 2001: He has not apparently seen or examined the patient or seen x-rays. Mr Martin’s Report 20 June 2001: The first paragraph is an important statement: ‘This is a good account of a disc prolapse in his neck, and the posture was one of those known for producing trouble.’ My Response: Mr Martin agrees that there has been a disc derangement compressing a nerve root. In this case the distribution suggested is C6-7 disc. But then he states in the last paragraph: ‘The disc protrusion would have produced spinal cord or nerve root pressure, which was absent.’ My Comment: But we have continuing evidence of severe, constant, unremitting pain in the neck radiating into the right arm and hand with loss of sensation in the fingers of the right hand, all indicative of continuing nerve root irritation in the neck. None of the symptoms or clinical findings were present before the accident on 15 April 1990, and are evidence therefore of an ‘underlying injury process’, occasioned by the accident, and which has caused permanent disability to the extent Mr Prince can no longer work, or expect to do so, in his profession in the future.” [7] In terms of Dr Grayson’s last paragraph above, the issue is whether any part of the appellant’s symptoms are still connected with, or caused by the 7 April 1990 injury; not whether they were present prior to that injury. Their non- existence, pre-injury, does not prove anything of relevance at this point. [8] On the balance of probabilities, from the overall medical evidence the appellant’s ongoing suffering must be substantially caused by the said degeneration. However, despite the overall medical evidence, I am not confident that the appellant’s current suffering is exclusively caused by his degeneration. While a very strong body of medical evidence says the latter to be so, another reputable professional medical expert is firmly of the view that there is still some linkage between the April 1990 accident and the appellant’s present condition. For the appellant to succeed in this appeal, it is only necessary that there still be the merest connection between the April 1990 accident and the appellant’s present condition. [9] I can accept that it does seem unlikely, when one stands back and looks at the evidence overall, that there remains any such causal connection; but the appellant is only required to show on the balance of probabilities that there remains some meagre connection. If so, then his current suffering is not “exclusively” caused by his present degeneration. A reputable medical practitioner (Dr Grayson) with much experience and expertise in these type of matters, is adamant that the appellant’s present condition is not exclusively caused by his degeneration and that there is a firm connection still between the April 1990 accident and the present suffering of the appellant. I do not think that I can ignore Dr Grayson’s opinions. [10] The issue is whether there is a nexus as at the date of suspension of entitlements (31 May 2001) between the appellant’s ongoing symptoms and the said personal injury sustained on 15 April 1990. That is a causal issue. The onus is on the appellant to show that, on the balance of probabilities, he is entitled to continue receiving compensation. [11] My interim decision details the conflicting medical evidence and shows that Dr Grayson considered on 29 May 2001 that the accident had caused ongoing nerve root irritation. He still does. His report of 25 June 2001 is 8 troubling in that it seems to adopt the “but for” test which, as I explain in paragraphs [40] and [41] (also set out below) of my interim decision herein, is insufficient to establish the necessary causal nexus. I now set out my paragraphs [36] to [41] inclusive of that interim decision, namely: “[36] All the medical experts who have assessed the appellant concur that the appellant was already suffering a long standing and significant degenerative condition in his cervical spine before the 1990 injury occurred. Dr White, and Messrs Saunders and Grayson agree that the 1990 injury aggravated this underlying condition. [37] There is no evidence that the appellant’s ongoing symptoms are in any way caused by the 1990 injury except for the medical evidence from Mr Grayson. In fact, Dr Turner is unequivocal in his findings to the contrary. In his report, Dr Turner noted that the appellant’s condition had worsened, but the predominant problem was that of pain in the absence of any underlying injury process. This diagnosis was strengthened by the fact that the appellant had developed chronic pain in his neck and between his shoulder blades event though he had not been working. Dr Turner expressly states that there is no actual evidence of ongoing injury in the tissues of the appellant’s cervical or thoracic spine, or any localised inflammation while there is certainly evidence confirming the appellant’s osteoarthritic cervical spondylosis condition and regional pain syndrome. Dr Turner considers it “biologically implausible” that the 1990 injury could still be causing the appellant’s symptoms so long after the 1990 injury occurred. Messrs Shirer and Martin agree with Dr Turner. [38] In the respondent’s submission, Mr Grayson’s reports reinforce the respondent’s case and support the hypothesis that the 1990 injury aggravated an underlying asymptomatic condition and made it symptomatic, and it is that condition which is now the cause of the appellant’s symptoms. I do not interpret Mr Grayson’s reports that way, but he does note the appellant’s “well-marked” degenerative changes in his cervical vertebra and related changes in the posterior fact joints, and that those conditions first caused the appellant’s neck pain in 1988 and were then significantly aggravated by the 1990 injury. [39] While Mr Grayson opines that the 1990 accident caused “traumatic degenerative changes”, he offers no evidence to counter Dr turner’s statements that there is no indication of ongoing injury in the appellant’s tissues. Mr Grayson suggests that the appellant may have suffered a derangement of hernia of a cervical disc, but none of the medical professionals who examined the appellant in the early 1990s noted any such derangement or hernia. Indeed, Mr Saunders stated that there was no evident deformity in the spine, and neither he nor Messrs Saunders, Tregonning or Palmer noted any neurological abnormalities. Mr Martin also noted that there is no evidence to indicate that any ”disc protrusion” is the cause of the appellant’s ongoing symptoms. [40] Mr Grayson states in both his reports that “but for” the injury, the appellant might still be working. However, as Papistock and De Vos 9 show, the “but for” test is insufficient to establish a causal nexus between the appellant’s ongoing symptoms and the 1990 injury. Actually, with regard to the effect of the appellant’s degeneration, in his report of 25 June 2001 Mr Grayson seems to have applied the whole or substantial cause test, rather than whether it is the exclusive cause test; the latter being the correct test in this case and much more favourable to the appellant. However, Mr Grayson’s opinions are still favourable to the appellant’s stance. [41] As Judge Beattie found in Gazzard, the fact that the appellant’s asymptomatic degenerative condition was rendered symptomatic by the 1990 accident is insufficient for it, by itself, to be personal injury. By itself, the condition is not a physical injury, but is merely an incidence of having the degenerative condition.” [12] I must deal in probabilities. It seems to me to be quite probable that there is still some linkage between the appellant’s 15 April 1990 injury accident and the present injury/suffering condition of the appellant. As I have said above, I should not ignore Dr Grayson’s opinions in this case. [13] Accordingly, this appeal is hereby allowed. Costs follow the event and I leave it to each party to submit a succinct submission on costs for the appellant in the usual way. The appellant should file such a memorandum within 21 days and the respondent in reply within a further 21 days. Unless either party indicates to the contrary, I shall then deal with costs In Chambers on the papers. P F Barber District Court Judge WELLINGTON AI250-02-PrinceFinal.doc (md)