Jones v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 251/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ROBERT TIHEMA JONES of Pokeno Appellant (Appeal No. AI 275/03) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 28 June 2004 APPEARANCES/COUNSEL Appellant in person F. Becroft for respondent RESERVED DECISION OF JUDGE J.CADENHEAD The Course of Hearing [1] On 10 June 2004 I made the following directions order: [i] Appellant is to file written submissions within 21 days of 10 June 2004; [ii] The respondent is to file written submissions within ten days of receipt of the appellant’s submissions; [iii] Respondent will file a bundle of documents; https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/251- 2004.doc AE [iv] Thereafter the matter will be set down for a hearing. The Issue [2] At issue is a decision by the Accident Compensation Corporation (“the Corporation”) dated 23 January 2003 suspending the appellant’s entitlements pursuant to section 117 of the 2001 Act on the basis that the appellant’s ongoing symptoms were no longer causally related to the covered injury. Narrative of Facts [3] The appellant has cover for a lumbar strain sustained on 7 June 2002 at work. Dr Macedo described the injury as arising, when the appellant was hit on the upper thigh/buttock region by a fork hoist. The appellant regarded this as a minor hit, and initially did not seek medical attention. He poured cold water on it and coached a rugby team the following day, but on the Sunday he could not get out of bed because of the pain. The next day he saw his general practitioner. [4] He was certified unfit for work by his general practitioner, Dr Rees, and began receiving weekly compensation. In September 2002, the Corporation referred the appellant to Dr Macedo, specialist physician and rheumatologist for review. Dr Macedo completed a report on 18 September 2002. Dr Macedo noted in his report that the appellant showed evidence of degenerative spondylosis as a result of long-term wear on the spine. He also noted that there was a secondary element of widespread myofascial pain such as fibromyalgia, or chronic musculoskeletal pain syndrome. Ultimately, Dr Macedo recommended that the appellant’s work as a lumberman, was not suitable given his back condition. [5] A workplace assessment report was completed by Kirsty Powell & Associates on 28 September 2002. This report also concluded that the appellant’s heavy work was unsuitable given his back condition. [6] Shortly thereafter, Dr Rees forwarded the appellant’s clinical notes and other medical reports to the Corporation. One of the reports forwarded was a report from Dr Speedy, sports physician, who had been treating the appellant. In a report dated 10 October 2002, Dr Speedy also noted that the appellant suffered from widespread pain and fibromyalgia. [7] On 20 November 2002, Dr Ruttenberg, Branch Medical Adviser, reviewed the appellant’s file and noted that while post-traumatic fibromyalgia exists it is only 251-2004 2 described in cases of whiplash injury, which was not consistent with the injury sustained by the appellant in this case. He recommended a referral to an occupational specialist for further comment. [8] Dr Dryson completed a report for the Corporation on 9 January 2003. He weighed the various factors in the appellant’s case and ultimately concluded that his fibromyalgia was not post-traumatic. He referred to the alternative possibility of a pre-existing spinal pain condition exacerbated but not caused by the accident. [9] Dr Speedy reviewed Dr Dryson’s opinion shortly thereafter and in a report dated 16 January 2003, indicated that he disagreed with Dr Dryson’s conclusion, and felt that the appellant’s fibromyalgia was injury-related. [10] Dr Ruttenberg reviewed the appellant’s file once more on 17 January 2003 and relied on Dr Dryson’s opinion. With reference to the opinion of Dr Speedy, Dr Ruttenberg noted that he had not ventured any references to support his opinion. [11] On 23 January 2003, the Corporation issued a decision declining the appellant’s entitlement to weekly compensation on the basis that his condition at that time appeared not to be in relation to the personal injury of 7 June 2002. [12] On 24 January 2003, the appellant applied for a review of the Corporation’s decision. [13] The review was heard on 4 April 2003 a decision on 7 May 2003, dismissed the application on the basis of the medical evidence, which suggested that the appellant’s ongoing symptoms were no longer due to the injury for which he had cover. The Review Decision [14] The reviewer concluded at page 6 of her decision, as follows:- “When the medical evidence is viewed as a whole, the weight of the evidence suggest that Mr Jones’ ongoing symptoms of incapacity are no longer due to the injury for which he has cover. In reaching this finding, I prefer the opinion of Dr Macedo, who is a consultant in Rheumatology. He has diagnosed degenerative spondylosis, which he does not attribute to injury. Nor does he attribute Mr Jones’ widespread myofascial pain to injury. Similarly, Dr Dryson has not found Mr Jones’ fibromyalgia to be post traumatic. While Dr Dryson has not examined Mr Jones, he has undertaken a literature review to support his findings. As stated at the outset, the onus is on the Applicant to establish an ongoing causal connection between his covered injury and his current incapacity. I believe that in the present case, Mr Jones has failed to discharge the onus required of him. 251-2004 3 Accordingly, I conclude that ACC’s decision is correct. The application for the review is therefore dismissed. This application is unsuccessful.” Legal Principles [15] Section 117 of the 2001 Act 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. (2) The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date. (3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to— (a) comply with any requirement of this Act relating to the claimant's claim; or (b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or (c) agree to, or comply with, an individual rehabilitation plan. (4) This section does not limit or affect any other power of the Corporation to decline or end an entitlement.” [16] Pursuant to s.117 of the 2001 Act, an insurer may suspend or decline to provide a claimant’s statutory entitlements if it is satisfied that a claimant is not entitled to receive such entitlements. [17] The appeal has to be considered against the provisions of s.26(4) of the Injury Prevention, Rehabilitation, and Compensation Act 2001, where it is provided that a claimant is not entitled to receive statutory entitlements where his or her personal injury is caused wholly or substantially by a gradual process, disease, infection or the ageing process. [18] In a recent High Court decision Cochrane (CIV 2003–485-2099 W ellington 2 June 2004) Justice Miller said, while confronting a causation issue under the 1982 Act: “The question ought to have been whether he could show that his incapacity was caused in some degree by the injury for which he was granted cover. Had he been able to do so, it could not have been said that his condition was caused exclusively by factors such as age or disease. An appellant may not establish causation simply by showing that the injury triggered an underlying condition which was already 251-2004 4 vulnerable ('the egg shell skull principle') or that the injury accelerated a condition that would have been suffered anyway ('the acceleration principle'); McDonald [2002] NZAR 970. The question is simply whether the necessary causal nexus continues to exist between the injury and the condition…In some cases an injury in a person who suffers from degeneration will produce symptoms in circumstances where that person may otherwise have remained asymptomatic for ever. In such a case it is the injury, rather than the degeneration, that is the cause of the incapacity. The onus is on the appellant to show the necessary degree of causation on the balance probabilities, but the court has cautioned against placing too much emphasis on the onus; Wakenshaw [2003] NZAR 590. The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between injury and incapacity exists. This point is important in a case such as the present, because evidence shows that it is in the nature of back injuries of this kind that medical evidence frequently cannot establish clear cause and effect. For that reason, I consider that the District Court was wrong to dismiss the appellant's claim by pointing to the onus of proof and the inconclusive nature of the clinical evidence. At the end of the day, causation is a question for the Court. Temporal considerations may enter into it, as may questions of credibility that cannot be delegated to the experts.” [19] The issue in the present case is whether there is a nexus as at 23 January 2003 between the appellant’s ongoing symptoms and the personal injury sustained by the appellant on 7 June 2002. [20] The approach taken by the District Court to deciding this type of issue was summarised in Shaw (17/00). Beattie DCJ held at pages 13 and 14:- “Looking at the situation and addressing the principle of law which must apply for the appellant’s entitlement to continue under the Act, it must be shown that the appellant is still suffering from the effects of that personal injury by accident even though it may be identified that there are other causes or contributors to that condition. At best the evidence is that it is impossible to say with any certainty one way or the other but that it is certainly consistent for the appellant still to be suffering from the effects of the injury by accident. In circumstances such as the present case where the appellant has been granted cover for a specific injury and is seeking continuing entitlement in respect of that injury, there is an ongoing onus on a claimant to establish that the particular entitlement being claimed is one which the Act allows. In some cases this may require establishing a specific criteria for a particular type of entitlement such as, say, home help or a modified motor vehicle, but on other occasions it requires going back a step further and asking the question whether the particular symptoms or injury which the claimant is displaying and which is the reason for the need that is claimed, is causally connected with the personal injury by accident for which the claimant was granted cover. It is when that question needs to be asked that I find that the fundamental concepts contained in Sections 8 and 10 of the Act need to be addressed and, contrary to Mr Sara’s submission, I find they need to be addressed on an ongoing basis throughout the time that a person is continuing to seek entitlements under the Act. The basic concept of section 8 is that cover under the Act is granted to persons who suffer personal injury by accident. When cover is granted for such a personal injury by accident I find that it is more than simply a gateway provision as Mr Sara would have it, in that there is an ongoing requirement that a person who has been granted cover for a particular personal injury, must establish that it is for that particular injury that he is seeking entitlement… 251-2004 5 It is the situation however that section 10 need not to be resorted to when cancellation of entitlements is contemplated because, as I have indicated, it is implicit in the granting of cover that the cover is granted for a qualifying personal injury subsists that cover can continue. If injury is found to be no longer by accident but from some other cause, then there can be no ongoing cover because the basis for it no longer exists. The ongoing symptoms or malady is something other than the personal injury that originated in the accident. I find that section 10 is a provision which simply reinforces that concept, stating as it does for the avoidance of doubt that certain conditions are excluded from cover.” [21] I think that passage sets out admirably the core principles of the Act. [22] I set out hereunder some of the principles that have developed around a construction of the suspension or cancellation provisions: [i] The onus is upon the appellant to show that he is entitled to continue receiving compensation. This onus is satisfied on a probability basis. The substantive law that applies is that subsisting at the date of cover. [ii] The first step is a causal issue: an appellant to have a continuing entitlement for weekly compensation has to satisfy the respondent on the balance of probabilities that the current incapacity is presently a substantial and effective cause of the original injury, for which cover was granted. This issue will generally involve a consideration of the type of injury suffered, the initial x-rays, and medical reports evaluating the present symptoms against what were the reasonable consequences to be expected of the original injury. [iii] If the appellant can demonstrate on a probability basis that the symptoms complained of are still and an effective cause of the accident, then the appellant must go on and demonstrate that the present injury giving rise to entitlements is not 'exclusively caused by the ageing process'. The onus of proof of this step is upon the appellant upon a balance of probabilities. What is necessary is a critical analytical assessment of the original injury in the light of the medical reports. This step, while intertwined in many cases with the causation step, is nevertheless an independent step and has to be satisfied by a claimant once the first issue of causation is hurdled. In this respect the 1982 legislation has to be contrasted with the later legislation, where the word 'exclusively' was substituted by 251-2004 6 the lesser test of "wholly or substantially". This distinction was referred to in Gray v ACC [2003] NZAR 289 by France J. [23] On the issue of an injury igniting a condition that had previously been asymptomatic in McDonald v ARCIC [2002] NZAR 970 Panckhurst J referred to another dictum of Beattie DCJ in Hill (189/98) as follows: “[But] the provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature.” [24] Earlier in his judgment Panckhurst J adopted the reasoning of Judges Willy and Beattie in the respective decisions of Margaret Smith v ACC [2002] NZAR 1 and Hill (supra), when both Judges rejected reasoning on the basis of the so-called eggshell cases as being applicable to the accident compensation legislation. It was unhelpful to import common law principles relating to damages and foreseeability in this area of statutory compensation. [25] From these cases the issue that arises for consideration is the assessment of the relevant statutory definition of personal injury, against the medical evidence and the correct onus of proof, and whether the symptoms complained of are causally linked to the injury suffered in the accident for which cover was initially granted. Inevitably it will be necessary to consider, in each case, what is the medical status of the claimant prior to the accident, together with any changes over the years intervening between the time of the accident and the date at which the Corporation sought to determine the entitlements. [26] These principles have been reaffirmed by Beattie DCJ in Papistock (150/2002), where he rejected the submission that, but for the injury the claimant’s pre-existing cervical spondylosis, which up to that event had been asymptomatic became symptomatic, and therefore was the present cause of the incapacity. [27] The above dicta reflect the situation that is commonly encountered of a degenerative condition that was asymptomatic, but whose symptoms were ignited by the injury suffered. While these propositions of principle impact on the second step concerning a consideration of the ageing process, they, also, may be an important analytical tool on the first step of causation. 251-2004 7 [28] The issue, here, is whether the appellant can show that the present symptoms are still substantially causally related to the original injury. The appellant on these facts must show that his present symptoms were caused or substantially caused by the accident for which he has cover. Generally speaking, if that accident merely rendered symptomatic an underlying condition and the effects attributed to the accident have subsisted that would not be sufficient. The appellant must show that that his present symptoms are substantially caused by the physical injury caused by the accident for which cover was originally given. Medical Evidence [29] The appellant sustained a soft tissue injury in June 2002. There is no other clinical or radiological evidence of injury. His treating practitioner, Dr Rees, referred him to sports physician, Dr Speedy for review. Dr Speedy has provided a number of reports on file and was the first physician to diagnose the appellant as suffering from fibromyalgia. The Corporation then referred the appellant to occupational physician, Dr Dryson for a review. [30] Dr Dryson completed a clinical audit of the appellant’s file on 9 January 2003, specifically considering the question of causation in relation to the appellant’s chronic pain syndrome. Dr Dryson considered the leading literature in the area of post-traumatic fibromyalgia, summarising the results of those studies as follows: “1. There is good research evidence to show that fibromyalgia may follow a whiplash-type injury involving the cervical spine. 2. Traumatic episodes are reported more frequently by fibromyalgia sufferers than those who do not have fibromyalgia, but whether the trauma has caused the condition is so far underdetermined. 3. There appears to be no relationship between the trauma and severity of symptoms.” [31] In considering the appellant’s case, Dr Dryson concluded:- “It is not going to be easy deciding whether Mr Jones has post-traumatic fibromyalgia or not. Points in his favour are the following: 1. His fibromyalgia does seem to be related in time to the blow from the fork- hoist. 2. There appears to be no other plausible reason why he might have developed fibromyalgia at the time. 3. The general practitioner case notes indicated limited range of movement in the neck 18/06/02 (which might indicate some form of mild whiplash injury) but does also note ‘no focal signs’. 251-2004 8 Points against his claim are: 1. If leg fractures do not cause fibromyalgia, it is difficult to see why a blow to the hip and buttocks might do so. 2. Mr Jones reported a jarring of the neck; Dr Macedo’s letter indicates the accident has ‘been a minor hit’ and it is not likely that the jarring of the neck was sufficient to equate to a whiplash-type injury. 3. Mr Jones does have widespread spinal disease which may be significantly contributing to his pain. On balance, I believe that the medical research findings against Mr Jones’ claim for post-traumatic fibromyalgia. The alternative possibility of a pre-existing spinal pain condition exacerbated but not caused by the fork-hoist accident, is probably more likely.” [32] Dr Macedo, specialist physician and rheumatologist, completed a report for the appellant’s general practitioner on 18 September 2002 following a clinical examination. In that report, Dr Macedo diagnosed the appellant as suffering from degenerative spondylosis. He concluded as follows: Mr Jones has evidence of degenerative spondylosis and with relative preservation of disc spaces, and the spur that is of the type that we see with idiopathic hyperostosis, that can equally be seen as the long-term results of wear and tear on the spine. I do not think that he has ankylosing spondylitis or other form of inflammatory spondylarthropathy. There is a secondary added element of widespread myofascial pain as seen with fibromyalgia or chronic musculoskeletal pain syndrome.” [33] In Dr Macedo’s opinion, after clinically examining the appellant shortly after his injury, the appellant’s symptoms were in relation to a combination of degenerative spondylosis and chronic pain syndrome. [34] The appellant relies on evidence from sports physician, Dr Speedy. Dr Speedy has provided a number of reports in which he considers that the appellant’s ongoing symptoms are in relation to fibromyalgia. In a report of 16 January 2003, Dr Speedy particularly considered the issue of causation providing:- “Robert has recently had a review of his file done by Dr E Dryson, occupational medicine specialist, organised by Laura Day, case manager at ACC. Dr E Dryson concluded that it was not easy to decide whether Mr Jones had post-traumatic fibromyalgia or not, but on balance believed that he did not. I disagree with his conclusions and believe that Mr Jones’ symptoms are the result of personal injury by accident.” The Submissions of the Respondent [35] The onus is on the appellant to establish, on a balance of probabilities, that there is an ongoing causal nexus (refer to unreported High Court decision of Fowlie (AP 50/00, Wellington, Hanson J, 4 October 2000)). 251-2004 9 [36] Dr Dryson, an expert in the area of chronic pain syndrome, considered the appellant’s claim with reference to leading research in the area of fibromyalgia, and concluded that on a balance of probabilities, the appellant’s fibromyalgia was not related to the covered injury. More likely, in Dr Dryson’s opinion, the appellant’s symptoms are in relation to a pre-existing degenerative condition evident on radiological examinations of the appellant’s spine. [37] It is submitted that the medical evidence in this case, particularly reports from Dr Macedo and Dr Dryson, indicate that there is no longer a causal nexus between the appellant’s ongoing condition and the covered injury. The appellant’s ongoing symptoms appear to be a pre-existing degenerative condition, in combination with spontaneous fibromyalgia. Notwithstanding that submission, it is noted that it would only be necessary for the medical evidence to show that the appellant’s fibromyalgia or degenerative condition was the substantial cause of ongoing symptoms, rather than the whole cause. [38] Although Dr Speedy has continued to opine throughout the appellant’s case that his fibromyalgia is related to the covered injury of June 2002, he relies on no medical reasoning or literature in support of this view. In fact, he provides no more a considered opinion as to causation than the statement that the appellant’s symptoms are caused by personal injury. It is submitted that such a lack of reasoning is insufficient in this case to satisfy the onus on the appellant to show, on a balance of probabilities, that his symptoms are related to the injury he sustained in June 2002. [39] It is submitted that the weight of medical evidence in this case indicates that the appellant’s symptoms are not in relation to the June 2002 injury. [40] The evidence from Dr Macedo and Dr Dryson would suggest that the appellant’s symptoms are in relation to a pre-existing degenerative condition unrelated to the June 2002 injury. Although he suffers from fibromyalgia, the onset of which followed the accident in June 2002, Dr Dryson, occupational specialist, is unable to rely on any medical evidence to suggest that the appellant’s fibromyalgia could be related to the covered injury. More likely in Dr Dryson’s opinion, the appellant’s symptoms continue as the result of the pre-existing degenerative condition. 251-2004 10 The Submissions of the Appellant [41] The appellant said that he had lost his job since the accident and, also, his family. He still had a sore back. The appellant has survived on pain killers. He said that four doctors backed his claim and that one Accident Compensation doctor did not see him, but nevertheless commented on his claim. [42] Dr Speedy disagreed with the conclusions of Dr Dryson and he believed that the appellant’s symptoms were caused as a result of personal injury by accident. He was of the view that the appellant’s symptoms were the result of post traumatic fibromyalgia. Further, the elbow pain was likely to represent a manifestation of this condition. Decision [43] I have sympathy for the plight of the appellant. Unfortunately weight of the medical evidence is against the opinion of Dr Speedy. I accept that Dr Dryson may not have seen him, but he is a recognised expert in the area of fibyomyalgia, and he had before him materials that would enable him to make a diagnosis. His opinion was against the probability of post traumatic fibromyalgia. He thought that there was an alternative possibility of a pre-existing spinal pain condition exacerbated but not caused by the forkhoist accident. [44] Dr Macedo noted that the initial injury could not have been that severe as the appellant coached a rugby team the following day. He, also, noted that the appellant had back pains about every two years for which he could have a week off work. There was evidence of degenerative spondylosis that could be seen as the long term wear and tear on the spine. [45] I am of the view that on a balance of probabilities that appellant cannot show that his present symptoms are substantially caused by his covered injury. For the reasons that I have given the appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this ……23rd...… day of ……August……. 2004 (J. Cadenhead) District Court Judge 251-2004 11