Branson v Accident Rehabilitation and Compensation Insurance Corporation

Decision NO 175/ 99 IN THE DISTRICT COURT DCA 45/99 HELD AT AUCKLAND BETWEEN ROBERT BRADLEY BRANSON Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Date of Hearing: 2 June 1999 Date of Decision: 5 July 1999 Counsel: MS F Hack For Respondent Appellant in Person RESERVED DECISION OF JUDGE J.D. O'DONOVAN Solicitors: [AUCK_DC_10\VOL1\GROUPS\JUDICIAL\ODONOVJ\DECISION\Branson.doc s] 2. Background This is an appeal by Mr Branson from the decision of Review Officer, Ms Kay Lethbridge, given at Thames on 17 December 1998. Mr Branson's application for review of a decision of the Corporation was considered by the Review Officer and dismissed. The background to the matter is helpfully set out in the Review Officer's decision, as follows:- "Mr Branson was involved in a motor vehicle accident on 20 October 1989. He was diagnosed with bruised ribs but no specific back injury. A further medical report of 13 November 1989 recorded back pain. A Corporation file note of 17 October 1990 records a reoccurrence and exacerbation of a previous back injury. No specific event was identified, but it was noted there had been back problems since October 1989." Mr Branson had sought reimbursement for medical and other expenses, and was aggrieved by the Corporation's refusal to pay these. That refusal was based upon the Corporation's view that it had not been shown that there was any relationship between the current symptoms and the injuries suffered in the accident in 1989. The Corporation took the view that no objective evidence existed to relate the later onset of lower back symptoms to an injury sustained in the accident in 1989. It was noted that the appellant had degenerative disease involving two lower intervertebral disc spaces. The ACC branch medical adviser, previously an orthopaedic specialist, wrote on 27 October 1998:- 3. "The claimant has degenerative disease involving two lower intervertebral disc spaces. This has been progressive, as would be expected with this condition over time, and as evidenced by Mr Calder's recommendations now calling for a surgical fusion and stabilisation to control symptoms. There is however no evidence that the accident in 1989 was causative of this two disc level degenerative disease. Had these two disc spaces been involved in a significant injury in that accident, the clinical course followed would have been quite different, and the symptoms from the mid-dorsal injury would have been quite the lesser. It is of note that the symptoms in the lower lumbar spine appear to have become prominent or have arisen months later, and are consistent with degenerative disease and not with the injury as described and recorded at the time." The Review Officer concluded:- "There is no clear causal link established by the medical reports between the pain in the thoracic region and the pain in the lumbar region. The request for surgery is for the lower lumbar region, and thus it appears that that surgery is required as a result of degenerative changes." In the absence of sufficient evidence to link the requirement for treatment with any personal injury suffered in the accident, the appellant's application for review was declined. The Appeal In support of his appeal, the appellant provided some literature relating to "Degenerative Disease" in which he said it was stated that this was the result:- "... of injury or ageing process above 40 years of age. Since I was only 22 years of age at the time of the accident I see it relating to injury of my back problems not the ageing process. Also I note that J Calder's recent letter (13 January 1990) agrees that my back injury relates to the accident." At the hearing before me Mr Branson said that he had been aged 20 at the date of the accident. He had not had any previous back injuries, and prior to the accident had been undertaking heavy manual lifting work at a dairy factory. 4. The reference in his submissions by the appellant to a letter from Mr Calder relates to a letter written by Mr Calder, an Orthopaedic Surgeon, dated 13 January 1999 addressed to the appellant, the contents of which are as follows:- "This is to confirm that in your car accident of 1989 you suffered fractures of T7 and T9 in the thoracic spine and it is my belief that you also suffered damage to the L4/5 and L4/5S1 discs at the same time." The letter contains no reference to evidence on the basis of which that opinion is offered, and Mr Calder himself was not available at the hearing to provide evidence. As counsel for the Corporation said:- "This evidence from Mr Calder is the sole piece of medical evidence showing any linkage between the lower lumbar symptoms and the original accident As will be seen from the comprehensive range of medical opinion obtained both by Mr Branson's GP and the Corporation over a period of years (1990-1998), no other practitioner has at any time been willing to conclude that the lower lumbar pain is definitely linked. Mr Calder gives no reasons for his conclusion and has not previously expressed that opinion in his more detailed letters of 2 September and 9 October 1996. The overwhelming weight of medical opinion, therefore, is that the surgery is required as a result of degenerative changes, and not as a consequence of the 1989 accident." Decision It is clear that the numerous medical opinions received by the Corporation have been to the effect that no link between the appellant's symptoms and the injuries suffered in the accident has been established. 5. The onus is upon the appellant to satisfy the Court on the balance of probabilities that such a link exists. Apart from the letter from Mr Calder to which I have referred, no evidence has been offered by the appellant and, with respect, I do not find Mr Calder's letter helpful. In the circumstances I must find that the appellant has failed to discharge the burden of proof to the required standard, and the appeal must accordingly fail. The appellant is entitled to travelling expenses at the highest rate. (J.D. O'Donovan) District Court Judge