Keenan v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2014] NZACC 188 ACR 007/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN SANDRA KEENAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 April 2014 Appearances; S D Buckingham for the appellant I Mclachlan for the respondent Transcript provided: 2 June 2014 Judgment: 27 August 2014 RESERVED JUDGMENT OF JUDGE DENESE HENARE 1] In 2006 the appellant, Sandra Keenan sustained injuries in a car accident. Cover was granted for neck, back and left leg sprain and Ms Keenan received weekly compensation until her return to work one year after the accident. [2] The evidence of Mrs Keenan is she has continued to have ongoing neck and back issues and continuing pain. [3] In 2009 Mrs Keenan aggravated her neck problems whilst picking up heavy bags at work and loading them into the boot of a car, Mrs Keenan saw her General Practitioner who recorded her pain in the neck had worsened. He also noted Mrs Keenan felt pain between the shoulder blades and tenderness over the cervical spine. [4] Mrs Keenan claimed re-aggravation of the 2006 injury and applied for weekly compensation. The Corporation declined the claim on the basis the whiplash to the neck was on a background of degeneration. Mrs Keenan appeals that decision. [5] In December 2013 the appeal was reinstated following an earlier Court order that the appeal was struck off for want of prosecution. [6] The issue for determination is whether there is a causal nexus between Mrs Keenan's whiplash syndrome as at April 2009, and the covered injury of 2006. The case for Mrs Keenan [7] The case for Mrs Keenan is based primarily on the 2010 reports of Mr Hadlow, who considered Mrs Keenan had "no significant" degeneration in her neck and that she suffered from "a whiplash syndrome with ongoing neck pain". Mr Hadlow. considered treatment should essentially entail physical therapy and pain relief. Mr Hadlow requested an MRI of Mrs Keenan's spine which showed "minimal disc degeneration and no abnormality". [8] Mrs Keenan and her husband affirmed her ongoing pain issues in their affidavits filed in support of the appeal. [9] Mr Buckingham submitted Mrs Keenan had suffered a mental injury. Mrs Keenan did not have cover for a mental injury at the time of the Corporation's decision. On this basis, I indicated to Mr Buckingham that issues of mental injury are not part of this appeal. Discussion and Analysis [10] The parties are agreed that the central issue is one of causation. Case law in this jurisdiction shows that the evidence as a whole must justify a conclusion that there is a nexus between injury and incapacity; Cochrane' [11] I turn to consider the medical evidence. Mr Field, orthopaedic surgeon agreed with Mr Hadlow's diagnosis of chronic whiplash syndrome, that is, persisting pain and neurological symptoms without demonstrable physical cause. However, Mr Field went on to explain the elements of this diagnosis: ... a highly controversial diagnosis, particularly since the Norwegian- Lithuanian study by Schrader et al in 1996. In addition many recent papers have shown that psychological factors such as catastrophicing and causal belief as well as perceived injustice, pain behaviour and anger all contribute to the medico-cultural entity of chronic whiplash [12] The condition, by definition, is characterised by severe and unremitting symptoms in the absence of any demonstrable physical abnormality following relatively minor neck trauma, classically in a low speed motor vehicle accident. [13] Mr Field went on to explain that the several MRI scans had not revealed any significant abnormality to explain Mrs Keenan's symptoms. He suggested that non- organic factors played a large part in Mrs Keenan's symptoms. Mr Field considered Mrs Keenan's symptoms were psychosocial. He concluded there was no ongoing injury related pathology, [14] I find Mr Field's findings are supported by Mr Mee, neurosurgeon and Dr Aamir, pain psychiatrist. [15] In 2006 Mr Mee expected that Mrs Keenan's symptoms would resolve within a year of the accident and she could return to work. This prognosis proved to be the case for Mrs Keenan when she returned to work in 2007. Cochrane v ACC [2005] NZAR 193 [16] Dr Aamir, reporting on 9 February 2007 considered the MRI had not revealed any abnormality and he diagnosed Mrs Keenan suffered from multiple psychosocial stresses. [17] I find that there are no significant differences in the reports of Mr Hadlow, Mr Field, Mr Mee and Dr Aamir about the condition of Mrs Keenan as at April 2009. The consensus is that Mrs Keenan sustained whiplash following a minor neck injury, and she would return to employment, which she did a year later. Between May 2007 and March 2009, Mrs Keenan did not attend her General Practitioner for ongoing treatment. I observe Mrs Keenan stated she had been self medicating. [18] There is no evidence of ongoing degeneration. In fact there is no evidence linking Mrs Keenan's symptoms to any physical pathology. Ms Mclachlan for the Corporation agreed the issue of degeneration was a red herring. [19] Rather, the issue turns on the nature of the whiplash syndrome. I find all the specialists agree that the whiplash syndrome does not have a physical origin. Conclusion [20] Taking all of these matters together, I find the evidence is overwhelming that the whiplash syndrome that Mrs Keenan experienced in 2009 did not arise from the covered injury in 2006. [21] Notwithstanding this finding, at the conclusion of the hearing, I expressed the view that the parties consult regarding Mrs Keenan's issues of a mental injury. Result [22] The appeal is dismissed. There is no issue as to costs. Demure I Jerome Judge Denese Henare District Court Judge