King v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2012] NZACC 325 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ROSS ALEXANDER KING (ACR 781/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 17 September 2012 APPEARANCES Ms C L Hollingsworth, Counsel for Appellant. Mr L Barrington, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 14 January 2010, whereby it declined to grant cover to the appellant for left hip and low back pain which were contended as being secondary to physical injuries suffered by the appellant in March 1984, being the occasion on which he did indeed suffer significant physical injuries in a motor cycle accident. [2] The reasoning given by the respondent in its decision declining cover was as follows: In order for ACC to provide assistance for your back and hip symptoms, there must be a clear link between a covered personal injury and the current symptoms. Professor Theis has clearly stated that he did not believe the hip pathology is traumatic in origin, and the most likely cause of the condition of your hip is age-related degeneration. While your back pain could be related to your leg length difference, there is no identified injury to your back. ACC can only provide cover for physical injuries caused by accident 2 and because there is no demonstrable back injury, we are unable to provide cover for your back pain. [3] The relevant background facts maybe stated as follows: On 1 March 1984, when the appellant was aged 18 years 8 months, he was involved in a motor vehicle accident when as a motor cycle rider he was in collision with a car. He sustained a severe transverse fracture of the left tibia and fibia, a wound to the left ankle and multiple abrasions around the left ankle and foot. It is also of significance that he also sustained bruising in the left loin and the iliac blade area. The appellant was taken directly to Oamaru Hospital and he spent approximately four weeks in hospital receiving treatment for his injuries. . The appellant was granted cover under the 1982 Accident Compensation Act for the physical injuries he sustained, particularly the fracture of his tibia and fibia and the lacerations to his left ankle. Whilst the appellant was in employment at the time of this accident, he was not physically capable of returning to employment until the end of 1984. The appellant remained in full-time employment until mid-2006 by which time he had begun to experience progressive worsening of low back, groin and heel pain. The appellant was of course covered for the physical injuries he had suffered in 1984 and was in receipt of treatment in accordance with that cover. In the course of the next three years, namely from 2006 to 2009 various medical assessments were carried out to identify whether the appellant would be suitable for alternative work-types. [4] The Court has not been advised exactly when it was that the appellant lodged his claim for cover for his left hip and back pain, but it is likely that it was in the latter part of 2009 after he had undergone an Initial Medical Assessment in June 2009 with Dr lan Bell. His medical report did identify the appellant's ongoing problems of pain in his hip and back. 3 [5] In October 2009, ACC at Timaru requested Associate Professor J C Theis, Orthopaedic Surgeon, to provide a medical report on the appellant, and he examined the appellant for that purpose on 16 December 2009. 6] Mr Theis provided a report to the respondent dated 22 December 2009, and it is to be noted that he had reference to some earlier medical reports, and also the notes of the appellant's time in Oamaru Hospital after the accident event; he also had a recent MRI scan taken in August 2009. (7] Mr Theis gave his opinion as follows: . . . Having assessed Mr King I feel that he presents with symptoms and signs consistent with a chronic pain syndrome having been off work and on earnings related compensation for the last 4-5 years. His motorcycle accident in 1984 resulted in a fractured tibia but there is no record that he suffered any lumbar spine, pelvic or left hip bony injuries. The MRI scan of his left hip has shown early degenerative changes which are most likely to be age related rather than secondary to the injury in 1984 which did not result in an intra-articular hip injury. His main problem is the fact that he is deconditioned and has not worked for 4-5 years. Her has a chronic pain syndrome and has been assessed for this in the past. I could not detect any significant abnormality on clinical examination apart from some minimal stiffness of the left hip. Mr King is suffering from a chronic pain syndrome and he has very minor degenerative changes in the left hip as shown on MRI orthrography. As indicated above, there was no recorded intra-articular injury of the left hip following the motorcycle accident on 1.3.84 and therefore I do not believe that the hip pathology as identified on MRI orthrography is age-related degeneration. [8] As earlier noted, it was as a result of Professor Theis' report that the respondent issued its decision of 14 January 2010 declining cover for the appellant's low back and hip symptoms. [9] On 20 February 2010, the appellant underwent a comprehensive pain assessment by Dr M Anderson, Occupational Medicine Specialist. Dr Anderson was aware that the appellant was going to contest ACC's decision declining cover. In relation to the 1984 injury event, Dr Anderson noted as follows: .. There is written evidence of injury involving severe bruising to the left hip at the time of the accident. In the surgeon's report there is comment made about involvement of his iliac crest region. On the ambulance sheet there is comment made about involvement in the left hip region. On the admission form to A & E at Oamaru there is reference to the right iliac fossa being involved [the ed [there was no involvement of the right iliac fossa and this may have been a misprint and meant to have been left iliac fossa]. 4 Dr Anderson identified the appellant's present pain situation as follows: Groin - present all the time - described as a heavy ache. Left lateral flank pain, hip pain, left thigh pain left knee pain - describes this as debilitating. Left ankle pain - describes this as stabbing, shooting and intermittent swelling. Dr Anderson then stated that the factors contributing to the appellant's ongoing pain were as follows: Ross's pain is arising from multiple regions as described and is of a: Mechanical nociceptive origin Neuropathic origin Myofascial origin [10] In March 2010, the respondent sought further advice from Mr Theis and for which he had been provided with a copy of a letter from Mr Rees to ACC dated 20.5.85 and a copy of the ambulance officer's report on the appellant's admission to Oamaru Hospital on 1.3.84. He then stated as follows: . .. Mr King claims that he injured his left hip and lower back in the accident dated 1.3.84 and there is mention of bruising in the left loin and iliac blade area in the letter by Mr Rees to the ACC on 20.5.85 as well as documentation of pain in the symphysis pubis area in the ambulance officer's report on admission to Oamaru Hospital the day of the accident. However, there is no evidence that Mr King suffered any intra-articular hip fracture or spinal fracture and as a result it is not possible to establish a direct link between his current hip symptoms which are consistent with early osteoarthritis and the bruising in the left loin and iliac blade as described in the letter by Mr Rees I can confirm that the additional information you provided does not change my opinion expressed in my report dated 22. 12.09. .. [11] In April 2012 the appellant was seen and examined by Mr J A Rietveld, Orthopaedic Surgeon, at the request of Counsel for the Appellant. He stated, inter alia, as follows: .. I believe this gentleman has got significant femoral acetabulum impingement on the basis of the abnormality in that left leg. I believe on the balance of probabilities that this gentleman's hip pain is a direct result of this. I believe that the extent of the injury contributing to Mr King's current diagnosis is the only reason he has his symptoms is because of the injury, if he didn't have this injury he would not have presented with this problem. In relationship to Associated Professor Theis opinion, I do not understand where he is coming from to state that this is a aged related degenerative process. This gentleman s total asymptomatic on his other side and it is purely on his left side where he's got the leg length discrepancy and the abnormality of rotation and alignment of his femur where 5 the impingement is occurring and hence he's only symptomatic on the one side. This really makes the whole argument of Professor Theis completely invalid. His main argument being that he didn't sustain a direct injury or fracture to his femur or to his back is actually also incorrect in that he did have an injury to these areas, however regardless of this for him to develop femoral acetabulum impingement and labral tearing and also mechanical overload in his lower back, due to abnormality of forces through the leg is a direct result also of the shortened leg and the abnormal rotation that he has in this leg. I believe therefore on the basis of this that Professor Theis's argument is total invalid and very much incorrect. I believe that his interpretation of the facts are completely misconstrued and that he is total ignoring the identifiable data that I've stated above. ... [12] Ms Hollingsworth, Counsel for the Appellant, submitted that the evidence identifies that the accident event in 1984 caused the appellant's left leg to be shorter as a result of the fracture, and she submitted that the appellant's hip and lumbar spine problems were as a consequence of that injury. Counsel submitted that Mr Rietveld's opinion should be preferred and that he had provided sound reasoning for the development of the hip and spine conditions being as a result of the shortened leg length and rotation of the pelvis, being injuries suffered in 1984. [13] Mr Barrington, Counsel for the Respondent, submitted that there was no evidence of a back injury sustained in 1984, and he also referred to the fact that the appellant was not expressing any symptoms of pain conditions until 2005. Counsel submitted that on that basis it was far more likely that the medical conditions were of a degenerative nature as was advised by Professor Theis. DECISION [14] In this case, the appellant is seeking cover for the medical conditions of left hip and back pain which he is contending were medical conditions arising from injuries suffered in the motor cycle accident of March 1984. It is of course a basic concept of the Accident Compensation Act that cover can only be granted for a physical injury, but it is the case that cover can extend to the ongoing consequences of a physical injury where the necessary causative link can be established. [15] In the present case, the appellant received cover back in 1984 for the physical injuries that he sustained in the accident event, and it is accepted that those injuries were significant and have caused ongoing problems for which the appellant has continued to receive entitlements under the various Accident Compensation Acts which have existed from the date when cover was granted back in 1984. 6 [16] The evidence is clear that the appellant did not start experiencing problems with his back and hip until about 2005, and as Dr Anderson noted, when commenting on the appellant's hip and back pain, the appellant had reported to him that over the past five years his pain had got progressively worse, that is between 2005 and 2010. [17] The evidence relating to the extent of the hip injury suffered by the appellant in the accident, as noted by Dr Rees, refers only to bruising of the left loin and in fact there is no mention of any back injury. As was noted by Mr Theis, there is no record that the appellant suffered any lumbar spine, pelvic or left hip bony injuries in the accident event, and in those circumstances he stated it must be the case that there is no physical injury which can be established as being the cause of the appellant's current lumbar and hip pain. [19] Accordingly, for the appellant's ongoing pain conditions to be the subject of cover under the Act, it would require those conditions to be shown to be causally linked to the physical injuries which he did in fact suffer in the accident event of 1984. In that regard there are the two opposing opinions from Mr Rietveld and Mr Theis respectively. I have set out the comments made by those two specialists pertaining to their respective opinions. [20] As noted by Mr Rietveld, the appellant only has pain on the left side, and that is the side on which he sustained the physical injuries, and he is asserting that without the fact of those physical injuries the appellant would not be experiencing any pain because there are no other conditions which would give rise to the onset of such pain. [21] Mr Theis, on the other hand, contends that the appellant had some 20 years or so without any pain in his hip or lower back, and he is saying that on that basis the far more likely cause is the onset of degeneration. [22] Having considered the evidence in this matter, I find that from a legal perspective it only requires a claimant to establish an entitlement on the balance of probabilities. When considering Mr Theis' opinion in relation to the legal issue which is in question, I identify that he is, in the main, asserting that there is no evidence that the appellant's pain can be established as having been caused by injuries to the lumbar spine or the hip, and in two of his reports he does assert that situation. I find that there can be no disagreement with that position and therefore there cannot be a direct link 7 between the appellant's ongoing pain situation and any physical injury to his hip or lumbar spine. [23] However, that situation, I find, does not cover the whole matter if it can be established that other covered injuries are in fact the cause of the pain being experienced in the lumbar spine and hip, and in that regard there is the evidence of Mr Rietveld and where he is of the opinion that there is a clear causative link. As in fact there is no contrary opinion on the precise point of the appellant's covered injuries being the cause of his ongoing pain in his lower spine and hip. I find it to be the case that the necessary causative link between the covered injuries and the ongoing medical condition of pain has been established to the necessary degree. [24] In those circumstances, therefore, I find that the appellant is entitled to cover for his ongoing pain being experienced in his hip and lumbar spine, and the respondent's decision declining cover is therefore quashed. [25] The appellant being successful in this appeal, I allow costs in the sum of $3,000 together with any qualifying disbursements. DATED this 2nd day of October 2012 J Beattie District Court Judge