Faddes v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 361 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN STUART CHARLES FADDES of Dunedin Appellant (Appeal No. DCA 267/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 2nd day of November 1999 APPEARANCES/COUNSEL P G Schmidt for appellant M Mccarthy for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to determine that the appellant's ongoing back problems are not directly caused by an accident he suffered on 6 May 1993 but are now the result of gradual process disease or infection. The appellant suffered an injury to his back in 1972 from which he has suffered sporadic lower back pain which has been aggravated by a series of further back injuries. On 6 May 1993 the appellant lodged a claim for cover with the respondent in which he stated that he had slipped on concrete and felt sudden pain. The 2 diagnosis was thoracic back pain. At the time of that accident the appellant was working as a fish salesman and was cleaning fish. The respondent accepted that the appellant was entitled to cover under the Act for that accident. As the injury did not resolve, the respondent authorised an MRI scan which was performed in November 1994. Following the scan the respondent approved a request from the appellant's orthopaedic surgeon, Mr Hodgson, to undertake an anterior lumbar fusion for the L4/5 disc prolapse. The surgery was carried out on 10 February 1995. On 4 September 1995 Mr Hodgson requested the cost of further surgery for a posterior lumbar fusion. The respondent approved that application and the procedure was performed on 1 December 1995. When the respondent subsequently obtained the appellant's medical history it was found that he had suffered back problems in 1985, 1986, 1987 and 1989. The respondent then requested Mr G Inglis, an orthopaedic surgeon, to review the appellant's position. In his report of 29 April 1998 Mr Inglis related the appellant's history as: "This 40 year old man who remains on ACC describes first ever suffering problems with his back in about 1973/74 period. At the time Stuart was working in the Freezing Works. He describes carrying a heavy board ducking under a chain. As he did this he injured his back. He was seen by the Freezing Works' Doctor at the time, reassured, no treatment was given. Thereafter, he continued to complain of a degree of recurring back pain that remained a significant problem to him from time to time requiring time off work. I notice from the ACC records that he did have a significant episode in 1980 when he was seen by Colin Fitzpatrick. Stuart does not clearly recall this incident or seeing Colin Fitzpatrick. He did at that time though suffer from back pain as a result of an incident in the Freezing Works and received some treatment. He carried on thereafter with a recurring degree of back pain until about the late eighties when his back was becoming a very significant problem to him. At that time he ultimately had to give up work in the Freezing Works because of his back pain and was seen by Bruce McMillan in Dunedin. Bruce McMillan discussed his back with him and suggested to Stuart that no further treatment could be offered for his back. Thereafter, Stuart continued to complain of a lot of back pain which remained a very significant problem to him. He became self-employed on a fish run following two or three falls doing this over an eighteen month period, his back further deteriorated causing him to give up this job. Following this he worked in a cheese factory for about eight weeks before again his back became a major problem usually related to bending and lifting. As a result of this he came under John Matheson's care. John examined Stuart and referred him on to Bruce Hodgson for a further opinion. Bruce examined and investigated Stuart including MRI, CT and suggested that an instrumented posterior 4-5 fusion was Stuart's best option to improve his quality of life. The surgery was undertaken in early 1995 and really did not benefit Stuart's situation greatly. About eight months later following further consultation with Bruce it was decided to proceed to an anterior interbody fusion L4-5 to try and improve his quality of life and his employability. Stuart indicates that following his second procedure his back pain has continued to deteriorate. Over the last 3 three years he has continued on a variety of back pain treatment protocols none of which has had any sustained or long term benefit to him. In fact, he now describes his back pain as being worse than it has ever been. He has also been seen by the Pain Services in Dunedin many years ago, underwent some steroid epidural injection and the usual range of pain therapy without great benefit to him. He at present awaits further consultation with the pain services." His opinion was: "Mr Faddes describes a long history of back pain dating from 1973 with gradual deterioration despite all the treatment that he has been offered and received. He now describes his back pain as being as bad if not worse than it has ever been. He has undergone two major surgical procedures. He describes now taking fourteen different medications at night to improve his back pain. Despite this his situation continues to deteriorate. Clinically on examination there is little of note to find other than a slightly depressed left ankle jerk. He does not have significant Gordon Waddell non-organic signs positive. Radiologically pre- surgery he had significant degenerate change and desiccation at the 4-5 level with a central disc protrusion. This has been very nicely surgically stabilised with instrumentation L4 to 5 with an anterior interbody fusion and has a very good looking radiological outcome from his surgery. The back pain continues however." And "The contributing factors to Mr Faddes' back pain are multi-factorial. I feel the variety of injuries and accidents he has had are relatively minor contributors. Certainly a major contributor is the spine he was born with, ie. genetic factors. The other incidents throughout his life are ongoing minor contributors, no one contribution can be held more important than any other contribution. The variety of injuries presented by ACC certainly cannot be categorised and listed in order of importance. No one of those injuries can be held responsible for his present predicament. Mr Faddes' relationship with ACC has to be sorted out by ACC. It is unrealistic now after many years of involvement to expect an individual to make a decision as to whether the Corporation should continue supporting Mr Faddes. ACC will have to make their own decision on the evidence presented. In summary therefore, Mr Faddes suffers from typical non-specific back pain which has run the course of all treatment options open including two major surgical procedures. His back now is, if anything worse than it has ever been. I feel that no further investigation or treatment will have a significant impact on the natural history of his back condition. He is employable in a self-employment role understanding that he will inevitably continue to suffer from some degree of back pain. No further treatment should be offered." After receiving that report, the respondent notified the appellant on 12 May 1998 that his ongoing problems were no longer due to personal injury by accident but the result 4 of natural processes and his genetic makeup as a result of which any entitlements under the Act would cease from 8 June 1998. The appellant applied for a review of that decision. On 2 July 1998 Mr Hodgson reported to the appellant's general practitioner: "I do not believe Stuart has a genetic problem with his back. There is no evidence of any bony genetic lesion here and his condition is related to an L4/5 disc protrusion which has been confirmed both clinically and, of course, with MRI scanning. There was nothing else on the MRI scan to suggest any genetic pre-disposition to the development of his L4/5 disc protrusion." The respondent then referred the file to Professor D Gorman, an occupational medicine specialist, who considered that the appellant suffered chronic regional back pain. He said that it was impossible for him to be certain whether the accident of May 1993 was significant but he considered it unlikely that that accident was "even partially responsible for Mr Faddes's current disability". An administrative review by the respondent confirmed the previous decision to cease entitlements. The appellant's solicitors then obtained a further report from Mr Hodgson which is dated 27 November 1998 in which he stated: "I read with interest Professor Gorman's report and also your detailed explanation and interpretation of the law as it applies to Mr Faddes. As I have stated in the past I do not agree with Mr Graeme Inglis report that Mr Faddes has a congenital problem that is a major contributor to his back (ie: the spine your (sic) were born with). Mr Faddes has a completely normal back on anatomical physiologic and radiologic grounds apart from the damage that he received to the L4/5 disc. In particular investigations including radiologic scanning have revealed that the rest of the lumbar discs in Mr Faddes' back are completely normal. I believe this refutes the possibility of a congenital or degenerative cause as in my experience degenerative problems are not solely related to one disc and congenital problems often involve more structures in the spine than the one level that has been involved in Mr Faddes' back. I believe Professor Gorman's statements are inconsistent. While I agree that it is impossible to tell whether the incident in 1993 was significant I believe in fact this incident was responsible for Mr Faddes' development of disability. He has undergone firstly a posterior decompression and fusion in an attempt to rectify his back disability. In my experience there is a 20% failure rate of this type of procedure. In an effort to overcome this failure an anterior discectomy and interbody fusion has been carried out to completely remove the disc. Unfortunately this has lead to no further improvement in Mr Faddes' symptoms. Be this as it may, I believe the reason for carrying out the surgery is directly related to his accident related problem (the L4/5 disc protrusion) and unfortunately the surgery on both occasions has not lead to a satisfactory 5 outcome that has allowed Mr Faddes to return to normal work and stop receiving Accident Compensation Corporation Earning Related Compensation." The review officer found: "It seems clear that the only problem with Mr Faddes's back from 1985 on has been at the level of L4/5 and surgery does not appear to have rectified the problem. On that basis, it is my view that the ongoing problems can only be related to an accident which is the subject of this claim, namely May 1993. The Corporation's decision is therefore upheld." Mr Schmidt submitted that one of the problems which confronted the specialists who provided the reports is that they did so without the benefit of a report from Mr McMillan which is dated 19 September 1985 and was submitted by the appellant to the review officer. In that report Mr McMillan relates the appellant's then history as: "Mr. Faddes states that he first experienced low back pain some six years' ago when he was lifting a substantial board at his work. He had to pick up the board and carry it bent over under a low chain and then straighten up. The board, he states, was about four feet long by three feet high and whilst bending down under the chain carrying the board developed low back pain. He states that he cannot remember whether the pain went to his legs or not but that he stopped work, attended his General Practitioner who referred him to Mr. Fitzpatrick. He wore a brace for his back and states that he was off work for about six weeks'. Following this he states that he would experience intermittent aching in the lower lumbar spine if he bent over for a time, e.g. planting two or three rows of potatoes but that the pain would ease after straightening up. He also complained of pain on odd days at the end of a day's work or if he had been standing too long. He states that he normally lay rather than sat at home for reasons unconnected with his back. He states that he gave up rugby for some three years' because of his back symptoms but lost no further time from work . He states that he decided to return to playing rugby this year to keep fit and at practice on the 18" April, whilst going down on the ball was kicked on the tail bone and also on his hand. He states that he carried on with the practice but next morning could hardly move because of the pain but went to work but was unable to continue more because of his hand than his back. He attended his General Practitioner, Dr. Cook who put him on light work for three weeks because of his back and during this time Mr. Faddes states he lifted a heavy sack of mash out of his car and felt something tear in his back aggravating the pain so that at the end of the three weeks when he returned to Dr. Cook, Dr. Cook found the back condition much worse and put him off work and he has been off ever since. Because of continuing complaints Mr. Faddes was referred to the Orthopaedic Services, Dunedin Public Hospital by his General Practitioner, Dr. Cook he 6 being first seen on the 14th June, 1985. The notes record that he was better lying and driving a car over rough ground caused the pain to be worse. Marked tenderness over the fifth lumbar spinous process was noted as was paravertebral muscle spasm. Straight leg raising was to 80 on both sides and there was no evidence of muscle wasting, weakness or reflex change in his legs where there was no disturbance of appreciation of pin prick. A diagnosis of mechanical back pain on the basis of a small prolapse of the fifth lumbar disc was made although it was noted that there was no neurologic impairment. He was treated with a lumbar support and Indocid tablets. It was wondered whether he had a reactive arthritis on the basis of believed sclerosis around the sacro-iliac joints. He is H.L.A.27B negative. When next seen on the 25" July the notes record that he appeared to move around the cubicle quite freely and could bend forwards so that his hands touched his ankles. No involuntary muscle spasm was noted and sciatic nerve stretch test negative. In view of the possibility of reactive arthritis he was referred for Dr. Highton's opinion, Dr. Highton seeing him on the 16t August, 1985 his notes record that there was a tilt of the lumbar spine to the right on flexion but no other abnormality was found. In his opinion there was no basis for a diagnosis of reactive arthritis and that the cause of the patient's symptoms was mechanical." Mr McMillan's opinion was: "This patient developed mechanical back problems some six years ago, presumably when he had the x-ray taken in 1980. Although the symptoms arose then in the course of normal everyday activities at work the flexed posture whilst carrying quite a heavy board would be an activity such as could be expected to cause back symptoms. Following this he experienced intermittent back symptoms until kicked on the bottom on the tail bone at rugby football. In my opinion this injury was inconsequential and would have been unlikely to have resulted in any lasting problem and indeed he stated today, that he could have continued at work with his back symptoms but it was his hand that necessitated him going off work. However, whilst on light work he again subjected his back to a strain whilst lifting a heavy bag of mash out of his car and it is my opinion that it is this that caused the exacerbation. He continues to complain of intermittent bothers. On my examination today I found little evidence of significant mechanical problems in his back and no evidence of disc protrusion. However, I would accept that he has a weak back and is likely to experience continuing troubles of an intermittent nature. He has a radiologically demonstrated abnormality at the fourth lumbar disc level noted at the time of his first x-rays in 1980 and unchanged since. Had he severe continuing mechanical problems in his back I would have expected there to have been a greater degree of involuntary muscle spasm evident after his drive from Balclutha today and sitting during the course of his examination. I would not dispute, however, that he is likely to have symptoms of intermittent backache particularly if bending over or standing in one place for 7 a time and that these are a continuation of the original trouble beginning in 1980 and which suffered an exacerbation when he lifted the bag of mash earlier this year. I note that when he was first seen in June that involuntary muscle spasm was evident but not on my examination today nor when he was seen on the 25th July. It is, therefore, my opinion that although he is likely, as he states, to have continuing intermittent symptoms that there has been considerable improvement and in my view he is fit to return to work with the limitation for a week or two that he should do no bending. I have written to his General Practitioner along these lines. As I stated above it is my opinion that he is likely to continue to experience intermittent low lumbar backache and, if the Corporation accept the original episode in 1980 as constituting personal injury by accident it is my view that he has almost returned to the state that he was prior to the episode in April and so I would assess the present residual disability arising from the original episode in 1980 as amounting to 15% of total. In my opinion a commensurate award under Section 120 would be appropriate in this case." In a report of 5 April 1994 Mr J Matheson, an orthopaedic surgeon, reported to the appellant's general practitioner: "I have reviewed his Balclutha radiographs taken recently and these show significant loss of L4/5 disc space of about 50% normal. There are some posterior facet degenerative changes at this level as well but no other abnormality." Mr Schmidt submitted that when Mr Mcmillan's opinion was taken into context, it was clear that the opinions which the specialists gave were without the full background history, particularly of the 1980 accident. He submitted that Mr Mcmillan's predictions made at that time had proved correct and that the problems in the appellant's back had been restricted to the L4/5 area throughout the whole period. Mr Schmidt submitted further that while Mr Hodgson had made a diagnosis following an examination of the appellant proximate to the 1993 accident while Mr Inglis did not see him until some five years later so that his condition would have been fundamentally different at that time Mr Mccarthy submitted that the medical evidence did not establish on the balance of probabilities that the appellant's current condition is directly linked to his accident. He submitted that at best the May 1993 accident (and subsequent accidents) could only be regarded as having rendered symptomatic a pre-existing non-accident related condition which was previously asymptomatic. While the respondent's decision to cease further payments was made on the basis that the pain suffered by the appellant was due to his genetic makeup and not due to personal injury by accidents, I do not consider that that is established on the balance of probabilities. Mr Hodgson is quite emphatic on that issue and it was he who had 8 the benefit of performing the surgery. He was satisfied that the appellant had a completely normal back apart from the damage to the L4/5 disc upon which Mr McMillan reported as far back as September 1985. Mr Mcmillan's prognosis at that time was that he would likely continue to suffer intermittent low back pain and that prognosis has been confirmed by the appellant's continued problems. In my opinion, the totality of the medical evidence indicates that the appellant's ongoing problems are not genetic but are the result of a series of accidents, all of which have involved the same L4/5 back area with the result that he continues to suffer pain in that area. The appeal is therefore allowed and the file will be returned to the respondent to make the necessary assessments. The respondent is to pay the sum of $900 towards the appellant's costs. DATED at WELLINGTON this 9th day of December 1999 A W Middleton District Court Judge Dca26799.doc(rd)