Witehira v Accident Compensation Corporation

IN THE DISTRICT COURT AT HAMILTON WELLINGTON REGISTRY [2012] NZACC 1 ACR706/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF an appeal pursuant to s 149 of the Accident Compensation Act 2001 BETWEEN RENEE FAITH WITEHIRA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 8 August 2011 Appearances: Mr A J Hamblett for Appellant Mr R Cahn for ACC Date of Decision: 12 January 2012 RESERVED DECISION OF JUDGE PF BARBER Issue [1] Was ACC correct on 25 March 2010 to suspend the appellant's entitlement to weekly compensation on the basis that, by then, the appellant's symptoms were no longer caused by her accident injuries of 16 April 2008? ACC's position is that the appellant's symptoms are caused by pre-existing degenerative conditions. JONATHON BROOKS V ACCIDENT COMPENSATION CORPORATION DC DUN AI 148/07 Background [2] On 16 April 2008, in the course of her employment as a recycling collector, the appellant, then aged 39, was riding on the back of a recycling truck which braked suddenly, and she was thrown to the pavement suffering a lumbar sprain injury and multiple abrasions. [3] On 6 May 2008 ACC wrote to the appellant, and advised her that her injuries resulting from the accident were covered. [4] On 10 October 2008 Gavin Parr, an orthopaedic surgeon, provided a report stating that the appellant was suffering a lower lumbar disc injury and a neck sprain which were, probably, caused by the accident. [5] On 20 October 2008 the appellant underwent an MRI scan, which showed a minimal annular bulge at L4/5 and a right paracentral annular tear at L5/S1, neither of which had any protrusion or root compression. [6] On 13 March 2009 Dr Chris Milne, a sport physician, saw the appellant and reviewed the 20 October 2009 MRI scan, He reported that the appellant was affected by a lower back strain which was primarily and substantially caused by the accident. [7] On 24 June 2009 Dr Milne saw the appellant again and reported that the appellant still had lower back strain, causally linked to the accident, which he expected to be spent in six to eight weeks. [8] On 14 October 2009 the appellant underwent an MRI scan which Dr Kevin Gilbert, radiologist, recorded as finding that facet arthropathy (a degenerative disease) was advanced and the minor fissure of the lumbosacral disc margin was incidental. [9] On 19 October 2009 Dr Milne again saw the appellant and reviewed the 14 October MRI scan. He diagnosed the appellant's symptoms as being caused by a mix of a back strain, and pre-existing degenerative condition. He recommended CT- guided injections and said that, if those did not improve her condition, he would be inclined to ascribe the majority of her symptoms to the pre-existing degenerative change. [10] On 23 November 2009 Dr Milne again saw the appellant, and his diagnosis was similar to that of his 19 October 2009 report. [11] On 2 February 2010 Dr Milne saw the appellant again. He said the cause of her back pain had altered since his 23 November 2009 report. He diagnosed her as suffering from a low back strain caused by the accident, and a degenerative disease of the lower lumbar spine. His view was that the effects of the lower back strain, caused by the accident, could be expected to be spent by mid-March 2010, and any remaining symptoms would attributable to the degenerative disease. [12] On 9 March 2010 Dr Milne again saw the appellant. By this time the appellant had received the CT guided injection. Dr Milne advised that the covered component of the appellant's injury was by then spent. [13] Accordingly, on 25 March 2010 ACC made a decision to suspend the appellant's entitlements. The appellant applied to have the decision reviewed. [14] On 21 June 2010 the appellant was seen by Richard Sommerville, an orthopaedic surgeon, who provided a report and did not speculate as to the cause of, the symptoms. However, on 4 August 2010, after reviewing a further MRI scan of 24 June 2010, Mr Sommerville commented that the scan was unchanged from the 20 October 2008 scan, and that the appellant's discomfort relates to her fall. [15] The Review was conducted on 21 September 2010. On 22 September 2010 the Reviewer (Mrs N R Coddington) dismissed the Review application on the basis that the cause of the appellant's injury was the degenerative changes in her spine, which were present prior to the accident. [16] On 7 June 2011 Dr Milne, following a review of Mr Sommerville's reports, and the MRI scan report dated 24 June 2010, wrote a further report on the appellant. He confirmed that his opinion was that as at 9 March 2010 the appellant's injury was spent and "degenerative change is wholly or substantially responsible for her ongoing symptoms". Discussion [17] For a person to be eligible for cover under the Act for a personal injury, that personal injury must have occurred by one of the means listed in ss20(2) of the Act which provides for cover for a personal injury caused by an accident. [18] Section 26 of the Act provides that a personal injury is a physical injury suffered by a person, including for example, a strain or a sprain. Ss 26(4) of the Act further provides that personal injury does not include an injury caused wholly or substantially by the aging process. There is no cover for an injury caused by a pre- existing degenerative condition. [19] The issue before me is whether ACC's 25 March 2010 decision stopping entitlements was correct. ACC could only do so if it is "not satisfied" on the evidence on file that the appellant had further rights to entitlement on this claim. (Ellwood v ACC [2007] NZAR 205 HC). [20] The relevant section of the Act is Section 117 which provides: 117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation 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... [21] In Ellwood, the High Court said: If the ACC / the Reviewer / the District Court is "not satisfied", then the evidence has not persuaded them that there is a right to entitlements. That may occur where the evidence on the balance of probabilities establishes no right to entitlements. Or it might also occur where the claimant has not established on the balance of probabilities that there is a right to entitlements. In that situation (if the evidence was imbalanced or unclear) the ACC would not be satisfied that there was a right -it would be uncertain. . . . In the situation where the evidence is unclear or imbalanced, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a Reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. [Counsel's] proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect terminated) is a reasonable one, If there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied' of the right to entitlements." [22] The onus is on ACC to establish, on the balance of probabilities, that the entitlements should be suspended. Did ACC correctly apply the "not satisfied" test in respect of ACC's decision to suspend cover under s. 117 of the Act; in particular the test as formulated in Ellwood v ACC? [23] While under the Act ACC need only be "not satisfied" that a claimant is entitled to continue receiving entitlements, I accept that ACC has to make reasonable decisions which, in this context, requires a sufficient basis to suspend entitlements. Accordingly, the "not satisfied" test cannot be met if there is an insufficient basis on which to suspend entitlements. [24] The appellant submits that the medical evidence should be interpreted in one of the two following ways: (1) The appellant had no pre-existing degeneration of her spine prior to her injury, but degeneration of her spine has developed as a result of her injury and was caused by her injury; or (2) The appellant had a pre-existing degenerative disease of the spine which caused her injury to have far more serious consequences for her than would otherwise have been expected. [25] As to the first scenario, there is no medical evidence to support the proposition that the degenerative condition was caused by the accident. None of the medical experts who have examined the appellant have made such a suggestion. However, Dr Milne referred to a "background of degenerative change" and to "pre- existing degenerative change" in his 19 October 1009 report, and a "background of degenerative disc change" again in his 23 November 2009. The medical evidence is that the degenerative condition pre-existed the accident. [26] As to the second scenario, this is again unsupported by the medical evidence. [27] In his report dated 9 March 2010 Dr Milne stated: Her lack of response to a CT-guided facet joint injection at each of these levels suggests to me that the inflammatory component that may possibly have been linked to injury is minimal and primarily we are dealing with a degenerative issue. I explained all of this to Renee, but she did not agree with me. I explained that it is quite reasonable adult behaviour to agree to differ on an issue, but that my medical opinion was of degeneration causing the vast majority of her symptoms. I tried to use an analogy of a submerged rock on the seashore that became exposed when the tide went out, pretty much analogous to what would have happened to the previously unrecognised degenerative joint changes in her back being exposed by the injury in 2008... She requested referral to another specialist. My view is that another specialist is likely to come to pretty much the same conclusion as myself ... I have made no plans for a routine review and believe that the ACC component of her condition is now spent. [28] Dr Milne confirmed his view in a further report dated 7 June 2011, where he stated: With these two pieces of information, (1) statistics showing the vast majority of people recover fully within one year,' and (2) the clinical and MRI findings of a non-injury pathology with severe degenerative change seen on imaging, I think we have the basis to make a recommendation with regard to the aetiology of her condition. Drawing these two pieces of information together; it is my view that we have an adequate and sufficient explanation for her ongoing symptoms; that is, wear and tear change that is most likely to have been present prior to the injury of 16-04-08. [29] Dr Milne's evidence is unambiguous that the accident merely exposed the appellant's pre-existing degenerative condition, and that the symptoms caused by the 16 April 2008 accident were spent. [30] The appellant relies on Mr Sommerville's reports and, in particular, Mr Sommerville's comments that ".... while it is almost certain Renee's ongoing discomfort relates to her fall, I do not think there is a simple answer in terms of treatment ...". However Mr Sommerville does not make any comment on the cause of the symptoms. Although he reviewed Dr Milne's 9 March 2010 report, he did not provide any comments critiquing it or disagreeing with it. As the detail of Mr Sommerville's reports is not inconsistent with Dr Milne's, there is no particular need to consider which is more reliable. [31] Dr Milne's evidence is clear and unambiguous. He stated that the appellant's symptoms from the accident were spent, and that her continuing symptoms resulted from a pre-existing degenerative condition. There is no clear evidence from a medical expert that the accident remains the cause of the appellant's symptoms. [32] It is also submitted for ACC: (1) The appellant has not shown on the balance of probabilities that the appellant's symptoms were caused by an injury suffered in the accident. (2) The evidence is that the appellant's symptoms were caused by a pre- existing degenerative condition. (3) The appellant's condition is not due to a covered personal injury, and accordingly this appeal must be dismissed. [33] However, there is no onus on the appellant. As mentioned above, ACC must show on the balance of probabilities that the appellant's entitlements should have been suspended as at 25 March 2010 and that ACC was then able, on the evidence, to be "not satisfied" that she was entitled to continue to receive entitlements. [34] It is common ground that the appellant suffered an annular tear at L5/S1 and that this injury was causally linked to her accident on 16 April 2008. [35] I do not think it necessary to refer to of the case authorities cited by counsel other than Ellwood v ACC. [36] Inter alia, Mr Hamblett submitted that the MRI scans of the appellant's spine were taken some two years apart and, according to Mr Sommerville, do not show any changes over those two years. Accordingly, Mr Hamblett puts it that if the appellant had a degenerative disease of the spine, then one would expect to see some further degeneration over that two-year period, but there was none, yet the evidence of the accident injury remained and, he put it, that injury has not healed. He also put it that Mr Sommerville did not refer to degenerative disease in any of his reports, but only to an accident injury from which the appellant had not recovered. Mr Hamblett also submitted that it is at least arguable (he put it) that if the appellant suffers from a degenerative condition of her spine, then that degeneration began from the time of her accident injury and so was caused or initiated by it. [37] Mr Hamblett referred to the eggshell skull principle and I accept that ACC must take the appellant as it finds her. However, the issue in this case is simply one of causation as to whether the appellant's 25 March 2010 injury state was still caused by the accident of 16 April 2008. Both parties seem to think that there is an onus of proof on the appellant. In fact it is clear from Ellwood v ACC (supra) that the onus is on ACC to establish, on the balance of probabilities, that the appellant's entitlements should be suspended. ACC needs to be "not satisfied" that the appellant is entitled to continue receiving entitlements. [38] Mr Hamblett put it also that, prior to the accident of 16 April 2008, the appellant was a fit and healthy 39-year old woman who had been working as a recycling collector for the previous two years and enjoyed that work. I understood that she went back to it for a time after the accident, but could not sustain working at it due to pain. She feels her quality of life has deteriorated since the accident; she feels depressed and unable to do "the normal everyday things that she used to do"; she has lost her focus that work used to provide for her and this has led to a loss of confidence on her part; and she needs to take analgesics for her daily bouts of excruciating pain. She has difficulty walking up and down the stairs in her two- storey rented accommodation and has been unable to find a single level flat without stairs. She can no longer play sport. She emphasises that since ACC withdrew her compensation in March 2010, she has experienced considerable financial difficulties. All that is very sad. [39] Mr Hamblett submitted that there is no convincing or compelling evidence that the appellant's injury state has been wholly or substantially caused by a gradual process, disease, infection or by the aging process. However, the medical evidence from Mr Milne is clear that the cause of the appellant's symptoms as at 25 March 2010 is her degeneration, and the detail of Mr Sommerville's evidence is consistent with that opinion. [40] Accordingly, this appeal is dismissed. Judge P F Barber Wellington