Flynn v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 223 AI 593/09 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN STEVEN FLYNN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 9 May 2012 Appearances: Steven Flynn in Person Fenella Becroft for the Corporation Judgment: 4 July 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 8 May 2008 the Corporation wrote to Mr Flynn to tell him that it had decided that he was no longer entitled to support from it and thus would suspend his entitlement to weekly compensation. [2] It told him that it had made this decision because: ACC does not consider that the accident on 21 December 2007, nor any previous accidents, has caused the spondylolisthesis, 2. You only have cover for a lumbar sprain from the incident on 21 August 2007, and that sprain is no longer the cause of your incapacity. STEVEN FLYNN V ACCIDENT COMPENSATION CORPORATION DC AK [2012] NZACC AI 593/09 [S July 2012] 3. The degenerative change at the level below the spondylolisthesis has been caused substantially by degenerative disease. A . At most your accident on 21 December 2007 has aggravated rather than caused your pathology. [3] Mr Flynn being dissatisfied with this decision sought a review but in a decision dated 27 November 2009 the Reviewer dismissed his application holding that on the basis of the evidence the Corporation had at the decision date it could not have been satisfied that Mr Flynn was entitled to continue receiving entitlements for the covered injuries he had sustained. Delay [4] Mr Flynn's appeal had been filed on 9 December 2009. Nothing to advance it appears to have happened between then and 7 September 2010 when counsel who had been acting advised that to be no longer the case, [5] Thereafter Mr Flynn was invited or requested to file submissions but none having been provided in the meantime the appeal was struck out on 5 October 2011 on the application of the Corporation. [6] However, the appeal was then reinstated on 4 April 2012 on Mr Flynn's application supported by his contention that crucial mail from the registry had not reached him. Background [7] On 4 October 1996 the Corporation accepted cover for a lumbar sprain suffered by Mr Flynn. His claim for stated that on 27 September 1996 he had pulled a muscle in the middle of his back when lifting trays of frozen meat. [8] On 10 January 1998 Mr Flynn suffered a further injury to his back, again while lifting. An Emergency Department report from Western Bay Health of 10 January 1998 recorded that when seen for attention Mr Flynn was limping and was tender in the lumbar spine, [9] A further medical report, this time dated 23 January 1999 from Tauranga Accident and Health Care, recorded yet another middle back injury resulting, again, from the lifting of heavy items and with Mr Flynn complaining of pain shooting down his legs. [10] A Bay Physiotherapy Centre set of notes dated 26 January-29 July 1999 recorded that pain persisted in the left buttock. A note on the last-mentioned date referred to non resolved buttock pain radiating into the left hip and to a cramp in the left hip muscle on sitting and standing. [11] Then on 17 March 2003 Mr Flynn suffered an accident in which he strained his lower back while chopping wood at home and this was treated with analgesics. [12] As counsel for the Corporation pointed out it unfortunately appears that none of those involved with these events arranged for x-rays of the lumbar spine to be performed. [13] The most recent and immediately relevant event was the 21 December 2007 accident that is the subject of the decision in contention. This has been described as involving Mr Flynn slipping down some steps and injuring his back . [14] On this occasion the avenue of radiology was pursued and a Mercy Radiology Group report of 27 December 2007 conveyed this: History: Slipped and injured back. Findings: There is a mild grade 1 spondylolisthesis at L5-S1 which is due to chronic LS pars interarticularis defects (not likely to be due to any acute injury). There is no acute compression fracture, and disc height is well preserved throughout. There is a small sclerotic density in the left sacralaia, minor small density right sacralaia (probable bone islands) and sclerosis around the superior right sacroiliac joint. Comment: L5/S1 spondylolisthesis. No acute fracture. For a more detailed description see [21] below. [15] Mr Flynn was seen by Mr Hadlow on 22 January 2008. In reporting on his examination that day, he said that "clinically, Steven has injured his back and has left sciatica consistent with a disc prolapse, This may well be at the L5/S1 level". The surgeon noted that, as the condition was not settling, there was to be an MRI scan. [16] Mr Hadlow reported on 1 February 2008. In his report he said that the scan confirmed bi-lateral LS pars defects but there was no evidence of a disc prolapse. There was discogenic disease at 14/5 with some modic changes. [17] Mr Flynn was still in pain and Mr Hadlow was of the view that this was most likely coming from his spondylolisthesis "plus or minus a disc injury". He said that if this did not settle he could organise an instrumented fusion for him. [18] A month or two later, Mr Flynn's general practitioner arranged for a second opinion from Mr Rodney Gordon, orthopaedic surgeon and he reported to the general practitioner on 19 March 2008. [19] Speaking of the then current radiology Mr Gordon said that: X-rays taken of the lumbosacral spine showed a grade I spondylolisthesis at L5/S1 with a pars defect. The remaining discs radiographically looked normal but on the MRI scan he had a darkened disc at 14/5 with some reactive change above the disc and some narrowing of the L5/SI disc but ... no evidence of any foraminal encroachment. ... [20] His view was that Mr Flynn did have a damaged disc with an annular tear at L4/5 and also a grade 1 spondylolisthesis at L5/S1. His advice to Mr Flynn was to lose some weight - which he had been working on doing - and pursue exercise that would improve his conditioning. [21] He thought that he could need surgery in the future either in the form of two level fusion or a disc replacement at 14/5 and a fusion at 15/S1, but he did not suggest that that should be considered at that time. [22] At this point attention turns to a third orthopaedic opinion - this from Mr Otto on 23 April 2008, Mr Otto (to whom the Corporation had sent Mr Flynn) sets out a quite detailed history, and a like description of the circumstances of the accident as reported by Mr Flynn. He had told Mr Otto that: ... he was coming down a flight of steps and missed the lower step, and in a long stride, suddenly twisted and jarred his back, and experienced intense pain into the buttock and down the left leg. The pain was so severe that he went to the floor and lay there for some time before he was able to assist himself to his feet .., [23] Mr Otto noted that Mr Flynn had been following Mr Gordon's advice as to personal physical rehabilitation, had reduced his weight further and now said that he was "at least 35%" better than had been the case at the outset of his problems, [24] Mr Otto provided what was to every apparent sign a careful analysis of the MRI scan, elements of which appear to have led to Mr Gordon's opinion (contrary to that of Mr Hadlow) that there had been disc damage done in the fall. [25] Mr Otto counted the MRI to be 'the significant investigation' and, as he carefully explained, recognised in it evidence of both disc degeneration and the developmental defect, [26] Following a detailed analysis of what was apparent from the x-rays and (in particular) the MRI, Mr Otto went on to say; Mr Flynn has two identifiable pathologies at the lumbosacral junction region of his spine. The first is a lytic spondylolisthesis, which is developmental, and has been present throughout life, The second change is a degenerative disc at the 14/5 level with modic end plate changes and slight posterior bulge, and both levels of pathology are equally able to produce symptoms such as he presents with at the present time. It is difficult to be certain as to the precise cause and origin for his symptoms, whether or not it is the degenerative changes in the disc at L4/5, which had been aggravated by the effects of the slip and fall, or whether the fact is that the olisthesis with the exit zone of LS nerve root on the left side which is implicated with the left buttock and left leg pain. The main feature in this case is that he has settled with conservative management and there are no hard neurological compressive symptoms that require surgical attention, and indeed he does not wish to have surgery at this time, nor does he need it, based on the clinical findings. It is however very likely into the future that he will have further episodes of similar pain from minor twisting events, or slips and falls, because of these pre-existing pathologies in the spine, and they may become increasingly more difficult to settle with time, as the degenerative process within both discs progresses. It is well known that with degenerative spondylolisthesis, by the time individuals reach the fourth decade of life that the changes are well enough advanced to become symptomatic with even trivial events, and can be difficult to settle because of the accumulative effects of wear that are now clearly seen on the MRI scan findings, At the time of this review Mr Flynn has settled well enough to be fully engaged in his work as a supervisor at Progressive Enterprises, He recognises the fact that he has to avoid lifting and twisting and repeat bending activities, but his job does allow him to avoid that and so it is more in his home maintenance and recreational areas where he is likely to become subject to further episodes of back discomfort. He has made excellent progress with his core strengthening exercises and has a further eight weeks of that programme to be completed, and I would recommend that this is taken to the end of the full course as he is getting continuing benefits and this should place him in good condition with less risk into the future. [27] Then responding to what was doubtless a conventional for this kind of case set of questions posed by the Corporation Mr Otto said: 1. From a clinical standpoint he has had deep buttock discomfort and L5 nerve root irritation into the left leg and this can equally come from the degenerative disc above the spondylolisthesis, that the degenerative 14/5 disc, as well as from the exit zone for the LS nerve root lytic spondylolisthetic area at L5/1. Further specific investigations such as discography would give a better clue and indication as to the site origin of the symptoms but this is now more academic in view of the fact that his symptoms are largely settled, and he is reaching a comfortable state, The pathology is based on a combination of degenerative changes at L4/5 and pre-existing developmental changes at L5/S1 level. 2. The answer is that disease in the disc above the level of the developmental abnormality has occurred along with the pre-existing developmental lytic spondylolisthesis that would account for his back and leg pain symptoms. 3, The answer is no, but noting that he has had previous episodes in 1993, 1994 and again in 2003, it makes most likely that the underlying pathology in those two disc levels was easily aggravated by trauma and lifting, and has been in the background causing symptoms now at least over a clear period of 15 years. The changes radiologically would reflect that length of time at least for the disc degenerative changes, and the secondary modic endphlate infiltration, as well as the longstanding lytic spondylolisthesis. The injury therefore has simply aggravated the underlying pathology that is now clearly seen on the MRI. 4. Mr Flynn indicates that he is at least 75% better than he was at the outset of his symptoms at the Christmas period of 2007. He is showing signs of settling to a comfortable and pre-accident level of function. He may never fully be restored to complete freedom from pain and mechanical back discomfort. That has to be considered to be due to the underlying pathology, and to that extent, the effects of the recent injury are essentially spent. S. As outlined he is in an exercise and core strengthening programme at present, and that is to run over a period of 3 months. He has completed 4 weeks of that and shown definite improvement, That should be completed. His treatment is essentially conservative. He does not require surgical management. It is recommended that he continues along the lines of a maintenance programme being carried out by himself, with isometric exercises to his abdominal and extensor muscles for his spine. [28] That report is what led the Corporation to make its 8 May 2008 decision to suspend entitlement to weekly compensation. As it essentially said in its decision letter, its view now was that the effects of the lumbar sprain suffered in the covered 21 December 2007 were spent and Mr Flynn's ongoing problems were degenerative. (29] When Mr Flynn sought a review of that decision the application was expressed in terms that he had suffered from two or three previous back injuries that cumulatively were responsible for his present incapacity. 30] It appears that at about this time the Corporation was provided with copies of medical notes in respect of the injuries in 10 January 1998 and January 1999. Mr Flynn had cover for the latter (also a lumbar sprain) but no claim had been lodged for the former. [31] These materials were referred to Mr Otto, he being asked to advise: [a] Whether he considered that Mr Flynn's pathology at 14/5 was caused by: [i] The accident on 10 January 1998? [ii] The accident on 21 January 1999? [b] Whether he considered that Mr Flynn's pathology at L5/S1 was caused by: [i] The accident on or about 10 January 1998? [if] The accident on 21 January 1999? [32] Responding on 24 September 2008, Mr Otto described Mr Flynn as having established pathology in the form of a lytic spondylolisthesis in his lumbar spine, that being a defect in the pars interarticularis which on account of a consequent lack of continuity would, with the passage of time, lead to degenerative changes. [33] The pathology was one commonly becoming persistent in the fourth decade by which time the unshielded disc would have degenerated so as then to result in increased susceptibility to even minor injury aggravations, [34] In his experience it was usually possible to manage the condition in a conservative fashion and he noted that that had been clearly recognised by Mr Hadlow and also by Mr Gordon - he was speaking here of exercises aimed at a strengthening of the abdominal and extensor muscles in their support of the spine. [35] He said that Mr Flynn also demonstrated degeneration of the disc above the olisthetic site at the L4-5 disc. He said this showed thinning of the posterior annular wall where there was a small radial tear indicative of degeneration in this locality but, fortunately, without entrapment or compression of the origin of the LS nerve root. [36] I now summarise his responses to the Corporation's questions; [i] Whether Mr Flynn's pathology at the L4-5 disc was caused by the accident on 10 January 1998 or 21 January 1999: Here Mr Otto said there was insufficient recorded information to give credence to accidental disc change and that his pre-existing condition was perfectly capable of producing the symptoms complained of and there being no frank protrusion at the degenerative L4-5 disc, such was not producing the buttock and leg pain that had been a predominant feature of the 2007 injury. His view was that it was coming from the olisthetic at L5-S1. He then described the MRI scan on 29 February 2008 as one not showing any disc protrusion in association with the degenerative L4-5 level disc nor midzone compression or interference in respect of the exiting L5 nerve root, [it] Whether Mr Flynn's pathology at LS-SI was caused by either of the accidents: Here he said that lytic spondylolisthesis was recorded in children in the upright posture as early as age two when they began to walk and was a common condition present from early life which, because of its features of instability, would show degeneration and consequential injury susceptibility, that increasing with the passage of time, In his view the events of January 1998 and January 1999 had simply drawn attention to the existence of that underlying change. [37] He ended with this; Unfortunately his situation has a clear lineage of change based on a pre- existing developmental abnormality at L5-S1 in the lumbar spine, and to some extent unfortunately, accumulating degenerating changes in the disc space above at L4-5. [38] Mr Flynn saw Dr Murray Findlay a chiropractor who reported to Mr Flynn's general practitioner in May 2009. What in essence he said was this: There is a significant sprain of the left SI joint as a result of the tumble he took in December 2007. This is compounded by several factors. (1) Previous history of injuries to lower back. (2) Grade one spondylolisthesis which has become unstable as a result of the fall. (3) Short leg on the left which is increasing the strain on the S1 joint. (4) Mr Flynn's recent weight gain and lack of muscles tone due to his inability to exercise at present I have no doubt at the time of the injury there was some disc involvement in the pain symptoms, however reviewing the MRI scan and his current x-rays, I believe that the disc signs are secondary to the underlying sprain/strain of the left SI joint. Unlike Mr Otto who provided an express and reasoned basis for his views, Dr Findlay does not explain why he holds that last mentioned belief. [39] Upon receipt of that report the Corporation went back to Mr Otto, He responded in decidedly plain terms: What the statements by Mr Findlay (do is) ignore the clinical observations and the accumulative evidence of degeneration in both an olisthetic area as well as the adjacent disc level in the lower lumbosacral junction region of the spine. What in effect Mr Findlay is doing is introducing another pathology in the spine to explain the pain when there are established changes already noted to be symptom producing, and the intermittenty of symptoms in this case, with earlier episodes of pain in 1998 and in 1999 and the apparent quiescence between episodes of pain is absolutely typical of the natural history of the instability associated with spondylolisthesis and accumulative degenerative changes in the unshielded disc The information supplied by Mr Findlay is not supported by the clinical assessment. The LS radicular symptoms ... are typical of midzone compromise to the exiting nerve root from the olisthetic area. It is deflecting from well identified pathology and the supporting evidence of the radiological information that gives confidence that this is the site generating the symptoms in this case. I can place no value or confidence in the suggestion that his pain is coming from the sacroiliac joint and find these statements counterproductive in the overall assessment of Mr Flynn's segmental instability and root irritation symptoms associated with the degenerative changes and the olisthetic area at L4-S1 in his lumbar spine. Case for Mr Flynn [40] In his written materials Mr Flynn asserted that Mr Otto had acknowledged that further testing could clarify the cause of his ongoing problems. This was obviously a reference to Mr Otto's 25 May 2009 report - that responding to the views of Dr Findlay - where Mr Otto had said: It is possible to carry out discography and to confirm pain sites with local anaesthetic injections under x-ray control into the SL joints, but I have no doubt that the genesis of his symptoms is coming from the established pathology within those two lower most segments of the spine, and this is entirely unnecessary. (Emphasis added) There is no medical opinion contesting that view. [41] Attending to Mr Flynn's written materials, I note his contention that it was not the spondylolisthesis that was the cause of his injury and consequential pain but the fall down the steps, in particular, the way he fell - twisting in doing so. That was no doubt correct in the sense that the fall did precipitate the emergence of a high level of immediate discomfort. [42] When addressing the Court at the hearing, Mr Flynn particularly rehearsed his view that spondylolisthesis came simply from accidental events rather than being an early on in life manifesting condition. [43] Mr Flynn drew my attention to a communication he had received from a Mr Yates, described as the Chiropractic Centre Supervisor, Diagnostic Imaging Manager, at the New Zealand College of Chiropractic. 44] The communication in question dated 24 June 2009 began with the qualification that Mr Yates, while having reviewed the information provided by Mr Flynn, could not without a complete examination and medical record provide a qualified evaluation. [45] He then went on to say this; The information provided does indicate a prior history of accumulated trauma to the lumbar spine area. It should be noted that a grade one spondylolisthesis of the bilateral pars defect is not congenital but is acquired post birth usually from an extension injury when young. This is well supported in the literature. Mr Flynn's multiple injuries did in fact attribute (sic) to the disc degeneration and lumbar degenerative disc disease from resulting annular tears and disc herniations. Lumbar disc injuries are cumulative in nature and this is well supported in the literature. Of course the covered injuries did attribute (sic) to Mr Flynn's conditions as did activities of daily living. From the information provided it appears that all the injuries were not work related but this cannot be adequate determined from the limited records provided [46] Mr Flynn also placed particular reliance on Dr Findlay's advice for he saw that as supporting his case and that stance may well have been influenced by the fact that, as he asserted in his written materials, a year's chiropractic assistance had provided him with effective relief, [47] The Court has no particular knowledge of the qualifications of Mr Yates but can in any event observe that he disclaims any idea that his observations should be treated as amounting to a properly supported by examination opinion. [48] Mr Flynn took great pains carefully and completely to put his personal case concerning the way in which the accident had happened (explaining that "the full weight of my body was in the twist") and to make his case that the result as he saw it had been to put his spine out of alignment to the extent that he had ended up having one leg shorter than the other. [49] He referred to the x-rays (particularly, so I understood, to those reported on on 5 May 2009) elements of which he sought to emphasise in his own way. In fact he sought to interpret the x-ray results for the Court, But of course he cannot be recognised as having the skills to do that. [50] He took me carefully through all of the relevant reports and, when commenting on same, again rehearsing that his accident in 2007 had involved "a bad twist and fall". [51] He sought to identify what he perceived to be internal inconsistencies in the views expressed by Mr Otto, or at least between his views and those of Mr Gordon (which he took to support his case) and of Dr Findlay. [52] Very responsibly in light of its contents, he took me to Dr Findlay's report of 22 October 2010 which was not in the bundle but had been promoted by a request from Mr Flynn for a follow up report in the light of further x-ray materials. [53] Of this, and first mentioning that he had not re-examined Mr Flynn, Dr Findlay said: The significant thing to note when comparing these x-rays is the apparent decrease in the rotation of the pelvis and the decreased lateral tilt of the lumbar spine, This all bodes well for helping to stabilise the spondylolisthesis and reducing the risk of further disc protrusion. It is important to re-emphasise that the spondylolisthesis was a pre-existing condition but, the injury that Mr Flynn sustained would have significantly established the spondylolisthesis. The goal of any chiropractic care in such a case is to stabilise the spondylolisthesis and restore normal pelvic function which then has the benefit of reducing the presenting symptoms. It is my understanding that this has been achieved successfully. Aside from this I can only concur with Dr Taylor's comments of Mr Flynn's self managing his spine through exercise and a regular spinal check up to ensure optimal spinal function and stability for a better long term result, (Emphasis added) [54] I speak of Mr Flynn being responsible in bringing this report forward on account the fact that, as will be seen, Dr Findlay recognised that (contrary to Mr Flynn's perceptions) the spondylolisthesis was a pre-existing condition, not an injury created one. [55] In the same vein I commend Mr Flynn for his honesty in bringing forward radiology results from 27 December 2007 where the specific comment is: 15/S1 spondylolisthesis. No acute fracture. [56] All in all the Court is truly appreciative of the care devoted by Mr Flynn to, and his conscientious approach as regards, the presentation of his case. Case for Corporation [57] In her submissions Ms Becroft referred to Ellwood . For the purposes of the present case it suffices to note in respect of that decision the requirement first of all that the Corporation take reasonable in the circumstances care to assemble a sufficient pool of information before considering a decision under s 117(1) of the Act and, secondly, that it only reach a decision that entitlements should be suspended [2007] NZAR 205. (which usually means cancelled) when (on the balance of probabilities) there is sufficient basis for doing so. [58] As I recently remarked in another case I do not believe that the High Court could have been intended, nor do I see its decision to have had the effect of, altering the civil standard of proof as it is flexibly applied in New Zealand. [59] As I see it, the Judge was simply underscoring the importance of a disentitlement decision resting on a sound, proportionate to the then consequences for a claimant, foundation, [60] The point in this case (as in so many like it) is whether or not as matters stood when the Corporation issued the decision it did on 8 May 2008 the effects of the accidental injury were spent and the ongoing difficulties of the claimant were by then wholly, or at least substantially, driven by a pre-existing degenerative condition. [61] If, as of 8 May 2008, the weight of sufficiently gathered evidence justified the conclusion that more probably than not there was no longer any pertinent nexus between the December 2007 injury and any then (current as at May 2008) incapacity or symptomology, then the Corporation would have acted appropriately. [62] Ms Becroft made clear that in this respect the Corporation had principally relied on the reports from Mr Otto. She pointed out that what Mr Flynn had cover for was a lumbar strain and that there was no reliable evidence of any disc pathology sustained as a result of the December 2007 accident. [63] She acknowledged that, as was now recognised, Mr Flynn also had cover for historic lumbar strains sustained in September 1996, July 2003 and October 2004. But the Corporation saw that history as consistent with its case that there was a long-standing weakness - one manifest from time to time. [64] Counsel acknowledged that when Mr Hadlow assessed Mr Flynn in January 2008 he had noted that his symptoms were emanating from the L5/S1 level and had speculated on the possibility of a disc injury at that level. But in terms of the preponderance of orthopaedic evidence the subsequent MRI revealed no evidence of structural damage, [65] What was clear that the symptoms were sourced in that section of the lumbar spine where discogenic disease and an 15 pars defect were evident. The latter point had in fact been emphasised by Mr Gordon in March 2008 in reference to the finding of spondylolisthesis. [66] When it came to Mr Otto (and as first expressed in April and then confirmed in September 2008) there was his clear and rationally explained opinion that whether it was the degenerative changes in the disc at L4/5 which had been aggravated by the accident, or whether it was the olisthesis with the exit zone of L5 nerve on the left side that was implicated, the then extant problems were simply and only degeneration driven. [67] Mr Otto had noted that Mr Flynn had been making excellent progress as continued to be the case quite obviously) and in his later 24 September 2008 report he had confirmed his earlier diagnoses albeit now leaning more confidently towards the symptomology being related to the L5/S1 spondylolisthesis more than the L4/5 disc pathology. The emphasis on the latter was on account clear signs as to the level whence the symptoms were emanating. [68] In responding to Dr Findlay's (rather spare in comparison it must be said) report, Mr Otto had been cogent, and surely persuasive, in his assessment of the actualities. [69] So in the end counsel submitted that; [a] The medical evidence was overwhelmingly one sided and that in support of the Corporation's decision; It will be recalled that Mr Gordon had thought some disc damage was apparent from the MRI. [b] That evidence clearly identified that Mr Flynn was suffering from the effects of a pre-existing degenerative/developmental condition unrelated to trauma; [c] At best the accident of 2007 (and the earlier accidents) had exacerbated (for but a time only) that pre-existing condition, but none of the accidents had caused any additional disc pathology. Discussion [70] I immediately recognise that it is the views of Mr Otto that come across as the most carefully and thoroughly considered medical evidence in this case. [71] Those views do not part company in any ultimately significant respect with that finally expressed (on 1 February 2008) by Mr Hadlow or (for the most part") Mr Gordon. [72] Mr Hadlow was reporting at a time when, relatively speaking, Mr Flynn was still subject to the immediate consequences of what was obviously a nasty fall. [73] But the x-rays taken within a week of the accident picked up on the spondylolisthesis and made clear there was no acute fracture and that visible defects were not likely to be due to any kind of acute injury. 74] When later asked to consider whether either the January 1998 or January 1999 accidents were implicated, Mr Otto was clear that neither had done anything more than to highlight the underlying degenerative change - and there is no evidence that any other of Mr Flynn's accidents did any acute damage either, [75] Indeed the idea that they might in fact add to the case for degeneration driven symptomology has been floated by the Corporation but, on account its speculative nature, that is not a factor brought into account by the Court. Mr Gordon did apprehend from the MRI that there had been disc damage and Mr Hadlow spoke of such as a "plus or minus" possibility until he saw the MRI and, on his reading of it, found no evidence of a disc prolapse. Mr Otto, whose advices read as the most thorough and considered, is clear that (when he saw Mr Flynn) the accidental injury was not the true source of the problem. [76] Dr Findlay's views, which in fact make some concessions about spondylolisthesis, suffer from the absence of an expressed in reasoned terms foundation to support them and Mr Yates, whatever his particular skills and experience, never saw Mr Flynn, [77] Thus I am bound to recognise the strength of Ms Becroft's submission that, by a considerable margin, the weight of the medical evidence (upon which in this particular kind of case the Court must be reliant) tips the scale in favour of the conclusion that, as at May 2008, no accidental injury covered by the Corporation was causally connected to Mr Flynn's then symptomology. On what the Court makes of the evidence, the fact was that, substantially if not wholly, that symptomology was degenerative process related. Result [78] In that state of affairs the appeal cannot succeed and it is dismissed. wodywl Roderick Joyce QC bun District Court Judge