Joslin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 167 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ROBYN JOSLIN of Whangamata Appellant (Appeal No. DCA 67/98) --- -- AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at TAURANGA on the 18th day of May 1999 APPEARANCES No appearance on behalf of the appellant Miss A H Cecil-Gibson, counsel for respondent RESERVED JUDGMENT OF M J BEATTIE The hearing of this appeal had been scheduled for 9 November 1998. The appellant duly appeared on that date but sought an adjournment on the basis that she had not received a copy of the respondent's submissions prior to the hearing date. The hearing was rescheduled for 18 May 1999 at 11.00 am but the appellant did not appear. Attempts were made to phone her without success. 2 Having considered this file I determined that the appeal be considered on the papers rather than simply dismissing it for want of prosecution and the appeal has accordingly been considered on that basis. The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlement to weekly compensation on the grounds that her present incapacity was not attributable to the personal injury by accident for which she had been granted cover. Background -- - -- On 9 July 1993 the appellant injured her back whilst pushing a car. The injury was described on the claim form as "bulge/prolapse of L5/S1 intervert disc with sciatica and neurological deficit (weakness)". The appellant received weekly compensation until she returned to work on 5 January 1994. In September 1995 the appellant's GP, Dr Miller, certified her as being unable to work and she again began to receive weekly compensation. Her inability to work was stated as being as a consequence of ongoing back pain. In June 1996 Mr Colin Hooker, Orthopaedic Surgeon, provided a report to the respondent following an examination of her. X-rays were taken at that time and in his report Mr Hooker advised that they showed "very gross and longstanding lumbo- sacral disc degenerative change with some indication of possible very early degenerative change also at the L4/5 level". In his report Mr Hooker noted that the appellant had first suffered a back injury in 1988. In his report Mr Hooker stated: 3 "Mrs Joslin is a 40 year old woman who, in my opinion, at the time of the initial event described above occurring in 1988, had significant low lumbar disc degenerative changes in her lumbar spine, inflicting injury on those changes at that time and then inflicting further injury, probably on the same degenerative disc in the further event described occurring in July 1993. She has not fully recovered from the effects of the second event and at this time continues to experience variable pain in her lower back and particularly her left leg. To address the particular questions you have posed in your request for this report, the following comments are offered: 1. Mrs Joslin's present condition is detailed above. The prognosis, in my - - - - - opinion, is that her condition is unlikely to significantly change in the future. There may be intermittent deterioration and improvement, but overall her condition is likely to remain essentially as currently noted, indefinitely in the future. 2. As far as I am aware, there was no injury sustained on 25 October 1995. Mrs Joslin's current condition is on the basis of longstanding degenerative change at the base of her lumbar spine with superimposed injury, as described to me, in 1988 and 1993. 3. As has been indicated above, there has been significant, pre-existing degenerative change at the base of the lumbar spine ante-dating the first of the events outlined above. In my opinion, this pre-existing, progressive degenerative change is now at the basis of Mrs Joslin's incapacity rather than the effects of any particular superimposed injury." For some reason the respondent did not act immediately upon the advice of Mr Hooker and continued to pay the appellant weekly compensation until October 1997 when it advised the appellant that on the basis of Mr Hooker's opinion her ongoing incapacity was due to her pre-existing condition rather than the effects of her 1993 injury and that her weekly compensation would cease. 4 Dr Miller wrote to the respondent on 11 October 1997 and noted: "This is to confirm that in conversation with Mrs Joslin, it appears that her back problems all date back to an accident that occurred in 1988, when she overbalanced and fell off her bike. She saw Dr Hardy of Waihi who manipulated her back on approximately the 12" September 1988. Her back problems then continued intermittently, but an acute exacerbation then occurred in June/July 1993 when she developed severe back pain after pushing a car eventually necessitating her admission to hospital. To her credit, she returned to her work and was experiencing continued pain but persisted with her employment until matters deteriorated too much for her to continue. She was certified as unfit for further work in September 1995. Her continued symptoms preclude her return to work as a postie at the present time. Despite the comments of Dr Hooker, I feel that her present back pain is as a result of accidents which have occurred to her during her employment as a postie dating back to 1988." The appellant sought a review of the respondent's decision and at the review hearing the appellant gave evidence of having suffered three falls off her bicycle and although the record does not indicate when those falls occurred, it does indicate that they did occur prior to the 1993 accident for which she was granted cover. In his decision the Review Officer noted that the respondent had no knowledge or record of any previous claims for earlier back injuries and that the first knowledge of a back injury was her claim for the July 1993 incident. The Review Officer relied on the opinion of Mr Hooker and ruled that the medical evidence supported the respondent's decision that she was no longer suffering from the effects of personal injury. 5 The appellant thereupon appealed to this Court and for the purposes of that appeal she produced a report from Mr C J Dawe, Orthopaedic Surgeon, dated 18 August 1998. That report is addressed to Dr Miller, the appellant's GP, and his report states as follows: "Thank you for referring Mrs Joslin, and for including the correspondence from Colin Hooker dated 12.6.96. The report from Colin Hooker outlines the events that resulted in development of Mrs Joslin's back and left leg symptoms, and it would appear that the two injuries, the first in 1988 which was in the nature of a strain to the lower back which Mrs Joslin suffered while she was delivering mail and she twisted her back. A third episode occurred on 20.7.93 in which Mrs Joslin felt acute pain in her low back with less sciatica which occurred when she was pushing a car. Quite clearly this is the most significant episode of back pain and subsequent to this Mrs Joslin developed increasing low back pain and left sciatica for which she need to be admitted to Tauranga Hospital, with treatment being undertaken with bed rest and later a steroid epidural injection. I have reviewed the Tauranga Hospital notes, and at that time Mrs Joslin was admitted with a left S1 radiculopathy, with the symptoms settling with conservative treatment at that time. The acute sciatica that Mrs Joslin had at that time did settle, but not completely, but Mrs Joslin was able to return to work and continued working until September 1995. During this period of time Mrs Joslin continued to have some low back pain and left sciatica, and she eventually stopped working because of these symptoms. At the present time Mrs Joslin has symptoms of mechanical low back pain with pain centred about the lower lumbar region and left buttock with some pain radiating down the lateral aspect of his (sic) calf and foot, but there is not any significant symptoms of sciatica. Mrs Joslin is quite limited in most of her day to day activities because of these continuing symptoms. Mrs Joslin sat and moved quite comfortably today and walked with a normal gait. There was tenderness generally about the lower lumbar spine, particularly the lumbosacral junction but there was tenderness also about the left sacro iliac joint and some left buttock tenderness posterolaterally. The back movements were very limited so on flexion Mrs Joslin could get her fingers only to the mid calf, and she did not extend past the neutral position. On lateral flexion to right and left Mrs Joslin could get her fingertips to the distal calf, but there was some discomfort on all of these movements. Straight leg raising was possible to 60 degrees bilaterally, the sciatic stretch test being negative bilaterally. There is altered sensation to light touch on the lateral aspect of the left calf and foot and the left ankle reflex was decreased but present. There is no motor weakness in the lower limbs. The Tauranga Hospital x rays of 25.7.93 were reviewed, these showing degenerative changes at both the L5 and L5-S1 levels, particularly the L5-S1 level. X rays of the lumbar spine and pelvis were done on 17.8.98 of which you will have received a report, but this is as follows: Lumbar Spine - There are five lumbar type vertebrae present. A very mild scoliosis convex to the left centred at L3 is noted. Marked disc space narrowing with a degenerative gas-containing disc is seen at L5-S1. Subchondral sclerosis and marginal vertebral body osteophyte formation is noted. There are also degenerative changes in the posterior facet joints at L5- S1. Above this the disc spaces appear satisfactory and bone alignment is normal. AP Pelvis - Both hip joints and sacroiliac joints outline normally. On the basis of the report from Colin Hooker, the ACC have declined an ACC claim for Mrs Joslin on the basis that she had a degenerative condition of her spine at the time of the injury on 20.7.93. While this is correct, the question arises as to whether these degenerative changes are due to injuries that had occurred previously, or whether they are changes that would have occurred 7 irrespective of a specific injury. Unfortunately this is impossible to answer, but I feel a fair compromise would be to say that at least some of the degenerative changes are due to the effects of previous injuries, but some are due to the effects of superimposed normal degenerative change." The appellant did not file any written submissions as such but introduced the report from Mr Dawe in support of her appeal. In written submissions counsel for the respondent submitted that the medical evidence was clear that the appellant's ongoing problems were substantially due to the degenerative changes in her back and that cover was thereby excluded by virtue of s. 10(2)(a) of the Act. Counsel submitted that the findings of Mr Hooker indicated that the degenerative changes were longstanding and significant and in those circumstances must be regarded as being the substantial cause of her ongoing -- -- incapacity. Counsel submitted that Mr Dawe accepted the appellant's degenerative condition existed but that some of those changes may have been as a consequence of the effects of previous injuries. Decision In this appeal the onus of proof is upon the appellant to establish on the balance of probabilities that there is a causal nexus between her present incapacitating condition and the personal injury by accident for which she was granted cover. From Mr Hooker's report it is evident that the appellant did suffer a trauma injury to a lumbo-sacral disc that was already severely affected by degenerative change. The medical evidence discloses that the circumstances of the injury were incapacitating for a period of some months but then the appellant was certified as being able to return to work which she did. It is 18 months later that the appellant begins again to display symptoms of back trouble which prevented her from working. Both orthopaedic surgeons have identified the appellant's back trouble as being in the L4/5 - L5/S1 area and x-rays taken at the time of the 1993 accident and again in 1996 and 1998 indicate that the appellant was suffering from degenerative change in that area which has progressed considerably in the ensuring years from when it was first identified. Mr Hooker does not identify any feature of the appellant's lumbo-sacral disc which identifies with any injury and I find that the inference can be drawn that the effects of the injury which she did suffer in 1993 were present for some time but then resolved enabling her to return to work. The onset of further back troubles some 18 months later I find cannot be attributable to the personal injury by accident in 1993 for which she received cover. It is the opinion of Mr Hooker that her pre-existing progressive degenerative change is now the basis of her incapacity rather than the effects of any super-imposed injury. Insofar as Mr Dawe is concerned, he at best would suggest that at least some of the degenerative changes may be due to the effects of previous injuries and some are due to the effects of super-imposed normal degenerative change. However the previous injuries that Mr Dawe refers to are possibly injuries that the appellant sustained prior to July 1993 and in fact may refer to the incident of falling off her bike in 1988 or thereabouts. The one matter of certainty in Mr Dawe's opinion is that the appellant's present incapacity cannot be said to be connected with the 1993 injury. Accordingly then, in terms of the issue in this appeal I find that the decision of the Review Officer was correct to find that there was no longer any causal connection between the personal injury which the appellant suffered on 9 July 1993 and her present incapacity. 9 This decision in no way seeks to find one way or the other whether or not the appellant might have some entitlement to cover in respect of some earlier injury. At the present time the respondent has no knowledge of any particulars of such injury or injuries or the accidents which caused them, and any determination of ongoing entitlement in respect of those would require firstly an application for cover to be made by the appellant and then an investigation of the present medical position in respect of those injuries. This is a matter for the appellant to address if she so wishes. However for the reasons given this appeal is dismissed. DATED at AUCKLAND this Ist day of July 1999 -- -- -- M J Beattie District Court Judge DCA67-98.doc(J9)