Richard N Wymer Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 106 / 95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN RICHARD N WYMER LIMITED of Hamilton Appellant (Appeal No. DCA 36/94) 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 August 1995 APPEARANCES Mr C T Gudsell for appellant Mr T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant's employee David Gera suffered a work injury. The facts which give rise to the appeal are that on 13 July 1993 Mr Gera attended the Accident and Medical Centre in Hamilton complaining of a sore neck and shoulder. A claim for cover was lodged with the respondent on 13 July 1993 in which Mr Gera stated that he had suffered a work related injury while working for the appellant and that the injury occurred when he was lifting the cab of a truck. He stated that the injury had occurred on 14 June 1993. The respondent advised the appellant that it was investigating a work injury claim and requested information from the appellant. On 19 July 1993 the appellant advised the respondent that it did not accept that Mr Gera had suffered a work injury. 2 However, after it had received a report from Dr Keegan of the Accident and Medical Centre dated 11 August 1993, the respondent accepted that Mr Gera had suffered a work injury. The appellant was notified of this decision on 1 September 1993. The appellant applied for a review of that decision which resulted in the Review Officer confirming the Corporation's decision on 24 January 1994. This appeal follows from that decision. As s.93 of the Accident Rehabilitation and Compensation Insurance Act 1992 requires the Judge to sit with two assessors if a medical question is raised, a judicial conference was held before Judge Imrie who gave certain directions regarding the manner in which the appeal should proceed. The result of the conference was that it was accepted that a medical question could arise which resulted in various medical reports being obtained before the hearing. In the meantime s.93 has been revoked as a result of which I have been able to sit without the assistance of assessors and have had the benefit of the further medical reports. In order to complete the background a report from Accident and Medical Centre of 14 October 1994 sets out details of Mr Gera's first attendance at the centre and the report states: "Mr David Gera approached myself at Accident & Medical today, to inform me of Court proceedings that were in progress concerning his ACC claim. I wish to confirm the following. Mr Gera presented to our Centre on 13/07/93 at 13:30. One of my Reception staff was able to assist Mr Gera in the completion of an ACC form, as he informed her that it was an injury he had sustained at work. My reception staff know the requirement of an ACC claim, in that an M46 form has to be completed in full, as a submission to their department for consideration of claim. To this end, the date of the injury is one requirement. Mr Gera presented in an acute condition of pain, and found it difficult to oblige the receptionist with details. When discussion was needed to the exact date of injury (as per the form) Mr Gera was hesitant, and informed that it had happened several weeks ago at work, but had gradually got worse. On this day he was in excruciating pain. My staff are trained to assist with the patients where-ever feasible, and obtaining this date was obviously difficult. So both parties agreed on four weeks prior to the day of this visit. This date has not been entered in frivolously, and would think that if there was any contradiction to it, Mr Gera would have voiced this. It would be difficult for me to try and trace who particularly the Receptionist was, considering the great time spans. I employ at least three receptionist, each shift of the day. In my opinion, Accident & Medical have completed the form, to our best ability as per standard formality to ensure Mr Gera's injury has been recorded through ACC. Should there be further query you wish to discuss, please contact the undersigned." 3 Mr Gera was examined by Mr R J Kyd an Orthopaedic Surgeon whose report states: "This man was referred to me on 22.12.93 by his general practitioner with a history of having jarred his neck some six months previously while lowering down the front cab of a truck he was working on. He experienced sudden pain at the left side of the neck with radiation to the left scapular region and although symptoms were not severe initially, there was a gradual deterioration over the following four to six weeks. He was seen some six weeks from injury and physiotherapy given but without benefit. Injections about the neck were also ineffective but a further course of physiotherapy did help relieve his pain considerably. He returned to work in early December 1993 but because of gradual deterioration was unable to continue. He complained of intermittent pain at the base of the neck with radiation to the scapular region on the left. There had however been no radicular pain into the upper limbs although he had been aware of intermittent numbness to the tips of his fingers. PAST HISTORY Neck pain had not been a problem in the past. ON EXAMINATION (22.12.94) He did walk with a normal gait. There was no muscle spasm but he did have tenderness over the mid and lower cervical spine. There was a good range of neck motion but with pain at the extremes of extension, lateral flexion and lateral rotation bilaterally. Power and reflexes in the upper limbs were normal. Movements of the shoulders were normal. X-RAYS (22.12.93) There was early narrowing of the C5-6 level but no syndesmophytes. This man's neck pain appeared to be related to disc degeneration of the cervical spine with nerve root irritation. Although symptoms had obviously improved with physiotherapy, unfortunately pain recurred when attempting to resume his previous job as a mechanic. In view of this he was advised to wear a soft collar for the following four weeks or so and a course of anti-inflammatory medication given. Unfortunately there was no improvement over the following three months. When seen on 22.03.94, he complained of ongoing neck pain with intermittent numbness to the whole of the left hand. The latter tended to be worse when sitting and on occasions there had been associated radicular pain. Clinically lateral flexion to the left and forward flexion were painfully restricted but other movements free. Power and reflexes in the upper limbs were normal. 4 In view of ongoing symptoms, which were not being helped by conservative measures, I referred him to Mr G Cowley, orthopaedic surgeon, who specialises in some aspects of spinal surgery, for his assessment. I have not seen him again since the referral. In answer to your specific questions: 1. This man's symptoms appear to be related to disc degeneration of the cervical spine with nerve root irritation. I suspect that the disc degeneration is long standing although prior to his injury, neck pain had not been a problem. I suspect that the injury aggravated the pre-existing degenerative process. 2. As stated in answer to question 1. 3. The symptoms Mr Gera describes would be consistent with his explanation of the accident. Unfortunately he has subsequently developed chronic neck pain which has been resistant to treatment." A report from Dr Friedman of the Rehabilitation Institute dated 13 November 1994 states: "Thank you for your letter of 28 October. Enclosed is my medical report dated 7 July 1994. As stated in that report David has a complex medical history. He told me that he had no neck or shoulder pain until the accident on 14 June 1993. Lowering the fron (sic) cab of a truck is capable of causing a cervical strain. I believe that the accident either caused degenerative arthritis in his neck or aggravated previously existing but insignificant arthritis." Mr G L Cowley an Orthopaedic Surgeon reported on 28 October 1994: "Thank you for requesting further information on the above named who has been seen by myself on several occasions concerning persistent problems with his cervical spine. 1 & 2. In my opinion Mr Gera's neck problems have been caused by an accident which has aggravated underlying degenerative disease in the cervical spine. That opinion is supported by his MRI scan which revealed mild cervical spondylosis at C5/6, without signs of focal disc herniation. No evidence of nerve root sleeve distortion nor of spinal stenosis 3. In my opinion Mr Gera's neck pain is consistent with his explanation of the accident. That explanation being that he jarred his neck while lowering down a front cab of a truck he was working on." Dr Chin whose report is dated 20 December 1994 states: "In reply to your letter of 28 October concerning Mr David Gera, your first question, 'was Mr Gera's neck pain caused by a degenerative disease or by an accident?'. Well, when I first saw Mr Gera on 7 April 1994, it was some ten months after he injured his shoulder so it is extremely difficult for me to say whether or had (sic) he had any existing degenerative disease at the time. He was however seen by Mr Bob Kyd, the Orthopaedic Surgeon at the Hospital, quite some time before and he felt he had existing degenerative disease in his spine. Your second question, 'was Mr Gera's condition caused by an accident which aggravated and (sic) underlying degenerative disease?'. Certainly if he had existing degenerative disease in the spine, such an accident could certainly cause further damage in aggravation. Question three, 'is Mr Gera's neck pain consistent with his explanation of accident i.e. the lowering of a front cab of a truck?'. Yes the front cab of a truck certainly weighs quite considerable and if sitting down and striking one over the shoulder then it would do so with quite a lot of force and I feel that the cab of a truck falling onto the back of one's shoulder would result in some sort of damage." Mr Gera was also examined by Mr P Robertson an Orthopaedic and Spinal Surgeon whose report of 7 November 1994 states: "Thank you for your letter of 28 October, I have reviewed my handwritten notes and summary of David's case to the general practitioner dated 15 September 1994. I have also reviewed the referral letter dated 12 September 1994 from the general practitioner, Dr Mike Bowen. In all of these documents it is clear that David's original symptoms came on on 13 July 1993 when he dropped the cab of a truck at work. At that time he noted an injury to the neck and left shoulder and subsequent to that time has had ongoing trouble which, as you are aware, has been diagnosed as cervical disc degeneration and disc prolapse at the C5/6 level. There is no evidence that he had any symptoms or problems with his neck prior to this In view of this history I would recommend that Mr Gera's neck and arm pain be considered as a consequence of the injury. There is MRI proven evidence of C5/6 degenerative change, disc prolapse and left-sided Co nerve root compromise. These problems were not a clinical concern prior to the injury. The question of whether any degenerative change existed prior to the work accident is unclear as, for obvious reasons, no radiological or other investigations had taken place. 6 We recognise that asymptomatic spondylosis, which is sometimes referred to as degenerative change, occurs in the broad spectrum of the population. In these patients it is often totally asymptomatic until some injury converts it from asymptomatic spondylosis to symptomatic spondylosis. As I indicated, the situation in Mr Gera's case was unknown prior to the injury. It is also recognised that the injury itself causes the ' degenerative spiral' leading to the spondylosis. It has been my observation in the past that such patterns of injury and subsequent disability have been fully covered by the ACC as they are clearly related to an accident. I hope this clarifies the situation in Mr Gera's case." At the hearing of the appeal Mr Gudsell called evidence from Mr J P Wilson the contract manager for the appellant, from Mr P Piper a painter/ panelbeater employed by the appellant, from Mr K Felgate a senior mechanic and from Mr G Radford a senior driver employed by the appellant. The effect of their evidence is that between 27 January 1993 and 5 May 1993 the appellant's staff were in the process of converting their truck no. 45 to a left-hand drive vehicle. That was the only vehicle being converted to left-hand drive. Mr Gera has stated that his injury occurred when he was lifting the cab of a truck which was in the process of being converted to left-hand drive. The evidence satisfied me that it would not have been possible for Mr Gera to lift the cab of the truck until after the torsion bars had been fitted but Mr Gera in his evidence had stated to the Review Officer that he had been able to lift the cab. However at the time he apparently suffered the accident the torsion bars had not been fitted. When Mr Gera became aware that the work had been completed on truck 45 by 5 May 1993 an explanation was obtained from the Accident and Medical Centre as to how it came to record that the accident had apparently occurred on 14 June 1993. The respondent has accepted that Mr Gera has neck problems which have been caused by an accident which has aggravated an underlying degenerative disease in the cervical spine as is set out in the medical reports. The only question is whether Mr Gera suffered an accident at work on 14 June 1993 or during the period that truck no. 45 was being modified. This raises the question of credibility. When Mr Gera first lodged his claim for cover he indicated that the accident was caused when he was "lifting a cab" and suffered strain to the shoulder and neck. All the medical reports are therefore based on Mr Gera's statement to the various specialists that that was the manner in which the accident had occurred. The appellant was concerned that no record had been made of the accident in its accident record book although Mr Gera was aware of the need to do that having previously so recorded an accident. Furthermore the evidence establishes that in spite of the close working relations between the persons employed in the workshop no comment was made by Mr Gera to his companions of having suffered such an accident nor would it have 7 been possible for him to have raised the cab without the assistance of a hoist. None of the persons who gave evidence before me were aware that the cab of truck 45 had ever been lowered during the course of the conversion and had it been lowered they all agreed it would have required the use of a hoist to lift it back. The evidence also showed that during the period of conversion of truck 45 Mr Gera was able to carry out his duties in the workshop without difficulty and his first attendance for medical assistance was not made until 13 July 1993. I am satisfied on the evidence produced at the appeal hearing that Mr Gera's explanation lacks credibility as was submitted by Mr Gudsell. I am satisfied that the injury sustained by Mr Gera could not possibly have occurred in the manner in which he alleges it occurred and accordingly the appeal must be allowed. I hold that Mr Gera has not suffered a work injury and accordingly the appellant will be entitled to costs on the appeal. Counsel is invited to submit a memorandum on the quantum of costs involved in bringing the appeal so that I can have some guide as to the time and expense involved. A copy of the memorandum is to be supplied to the respondent for its submissions. DATED at WELLINGTON this 7 day of September 1995 A W Middleton District Court Judge DCA36-94.doc(J9)