Cochrane v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 232 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SALLY-ROSE COCHRANE of Oamaru Appellant (Appeal No. DCA 490/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr P Piesse, advocate for the appellant, and from Ms S Scott, counsel for the respondent, with the request that I issue a decision on the papers. At issue is the decision of the respondent issued on 14 October 1997 in which it notified the appellant that it declined ongoing cover for her claim The facts which gave rise to that decision are that on 29 July 1997, the appellant lodged a claim for cover with the respondent which was diagnosed by her general practitioner, Dr A Wilson, as being "L5/SI nerve root entractment - sciatica". The claim form noted that the appellant, whose occupation was that of library assistant, had suffered the injury "at work - under table awkward position sudden pain in back". The incident had occurred on 14 July 1997 and her first visit to Dr Wilson was on 16 July 1997. The respondent accepted the claim and cover was granted. 2 Dr Wilson referred the appellant to Mr D I Walton, an orthopaedic surgeon, who noted that she had had previous back problems and had undergone a spinal fusion operation in 1993. Mr Walton stated: "There is little doubt that she has a very good fusion and the problem really now relates to the disc above possibly, or at least to the right sided nerve roots." On 4 September 1997 Mr Walton reported that as a result of a myelogram there was no sign of disc prolapse at the L4/5 area. He was unsure as to the cause of her present symptoms and recommended an MRI scan. The result of that scan concluded: "Expected post-operative appearances at L5/S1 but no other abnormality." Following that report the respondent declined ongoing cover. The appellant applied for a review of that decision. Before the review hearing took place Dr Wilson referred the appellant to Mr S Bishara, a consultant neurosurgeon, whose report of 17 November 1997 concluded: "I reviewed the recent investigations she has had. The plain x-rays on 15th August showed satisfactory fusion at L5-S1 level with marked narrowing of the disc space with the rest of the lumbar spine unremarkable. The myelogram and CT myelogram on 4th September showed no abnormality and in particular all the nerve roots filled well with the contrast. The MRI of 22nd September was also normal and there was even hardly any evidence of degeneration at L4-5 level in the form of desiccation. In the absence of any evidence clinical or investigatory of neural compression of any sort, Mrs Cochrane would be well advised to decline any further operative intervention if offered. I think she had a back strain following the accident on 14th July and now she is suffering from the chronic pain syndrome. This was discussed with her and I explained that it is a condition not easy to treat because an entrenched pattern of relative inactivity, dependence and drug use has been established. I said that I was going to recommend referral to the Pain Clinic and at the same time I thought I would try a small dose of Amitrip 10 mg nocte. I said she could double the dose if there were no side effects." The appellant sought advice from Dr F Beswick at the Timaru Hospital Pain Clinic. Dr Beswick was unable to diagnose the cause of the appellant's problem but noted the history as being: "This present incident started in July 1997 when she felt a sensation like a rubber band letting go resulting in a sudden sharp pain in her back when using a duster buster under a low table." The respondent arranged for the appellant to be examined by Professor M Pollock, a neurologist at the Otago Medical School. His conclusion was: 3 "It is very reassuring that on today's examination there was no objective signs of nerve root or spinal cord compression. It is also good news that over recent months she has made significant gains in her function and lost much of her pain. There are a number of unusual aspects to the pain syndrome she developed on the 14th July. Firstly there was no trauma as such but rather a twisting movement admittedly in an awkward posture. The pain was in a most unusual site over the left side of the coccyx. Moreover the pain was not immediately intense but rather built up over a number of days. Finally the distribution of pins and needles was in a most unusual side involving only both feet. I find it very difficult to come up with a neurological "explanation for these unusual features. I am pleased that she has been able to return to her part-time work at the library." The appellant gave evidence at the review hearing in which she set out the history of her problems and the effect on her. The review officer concluded that the appellant had not suffered an accident as it is defined in s.3 of the Act and that the fact that she experienced pain after the event under the table did not demonstrate that the appellant had suffered an accident. The review officer also declined to accept Mr Piesse's submission that the egg shell skull principle applied. The review officer concluded that the appellant's chronic pain syndrome was the cause of her ongoing problems rather than a specific injury. It is against that decision which the appellant now appeals. Mr Piesse submitted that a proper consideration of the evidence had not been possible because the review officer imposed a time restriction on the review hearing. He submitted that it appeared that the review officer had incorrectly taken from his submissions that the appellant "had a predisposition to this type of injury", when in fact, his submission was that she had suffered a soft tissue injury "which may have been exacerbated by a greater disposition than normal to that because of her previous back injury in 1992". Mr Piesse submitted further that the review officer was wrong in holding that the appellant did not suffer an accident in July 1997 when it had been demonstrated that she was working in a confined space under the table with a duster buster and that the table served as a "resistance external to the human body" in so far as her natural movements were constrained by it. He submitted that on the balance of probabilities the appellant's chronic pain syndrome was a symptom and development of a soft tissue injury suffered in July. Mr Piesse submitted further that as there was no evidence of degeneration and that while the appellant may have had a previous disposition to injury as a result of her spinal fusion the review officer was in error in finding that the egg shell skull principle could not apply. Ms Scott submitted that in order for the appellant to succeed the first requirement was that she must establish that her ongoing back pain was the result of personal injury by accident. She submitted that the appellant's statement that the twisting of her body in an awkward position did not meet the requirements of the definition of "accident" under the Act because the elements of the definition require an external 4 force or resistance which causes the injury. In answer to Mr Piesse's submission that the appellant was prejudiced because of the rigid time restriction imposed by the review officer a reading of the transcript did not support this submission as it appeared that Mr Piesse was able to present his case and to examine the appellant. In order to obtain cover under the Act, the appellant is required to bring her case within s.8(2) of the Act which states: "(2) Cover under this Act shall extend to personal injury which - a) Is caused by an accident to the person concerned; or b ) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (c) Is medical misadventure as defined in section 5 of this Act; or (d) Is a consequence of treatment for personal injury covered by this Act." That leads on to the definition of accident in s.3 which is: "A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events; or ..." That further leads to whether the appellant has suffered a personal injury which is defined in s.4 as: "(1) For the purposes of this Act, 'personal injury' means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by section 8(3) of this Act. (2) For the purposes of this Act, no cardio-vascular or cerebrovascular episode shall be regarded as personal injury unless - (a) It is a result of medical misadventure; or (b ) It is a work injury by virtue of section 6(1) of this Act." The appellant submits that she suffered an accident because she was working in an awkward position under the table when she twisted and felt pain in her back. However, in order to bring herself within the definition of "accident" there must also be "the application of a force or resistances external to the human body and that results in personal injury". There has been no suggestion in the evidence that the appellant in any way came into contact with the table and that she merely twisted while in the awkward position. A similar situation arose before His Honour Judge Beattie in Stephens (196/98) in which that appellant suffered a disc herniation when he twisted awkwardly while climbing some stairs. While the Court acknowledged that it was 5 that incident on the stairs to which the appellant's symptoms were related, it did not by itself constitute an "accident". His Honour Judge Beattie stated: .-. "The definition of 'accident' in the Act requires that there be the application of a force or resistance external to the human body. It matters not that that force or resistance is natural or artificial. Being struck by a bolt of lightening would be considered no differently than electrocution from contact with a live wire. Furthermore that force or resistance can be applied by the injured person himself or through some external agency, animate or inanimate. The common thread that must exist is the source of the force must come from without and not from within the human body of the injured person.' I consider that the situation in Stephens is on all fours with the situation experienced by this appellant. This is particularly emphasised by the fact that no particular injury has been diagnosed other than the onset of pain which by itself does not demonstrate that an injury has occurred. Professor Pollock was unable to provide an explanation for the appellant's problems and all that Mr Bishara could say was that there may have been a soft tissue strain at the time. Unfortunately, that explanation is not supported by any evidence of contact with the table or any other application of external force which might have been involved. While Mr Piesse has submitted that the appellant was prejudiced at the review hearing by the fact that the review officer had indicated that she only had limited time available, I agree with Ms Scott's submission that on a reading of the transcript of the evidence there does not appear to have been any undue limitation placed on the appellant or Mr Piesse which precluded them from giving all the necessary information required by the review officer. However, even if there was a limitation of time at that stage, the appellant has now had the opportunity to provide the Court with very full submissions which could overcome any of those limitations. For the reasons I have already outlined above, I conclude that the appellant did not suffer personal injury by accident on 14 July 1997 and the decision of the respondent was correct The appeal is dismissed. DATED at WELLINGTON this 1 7 day of August 1999 A W Middleton District Court Judge Dca-+9098.doc(rd)