Van Der Torre v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 18 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SUZANNE VAN DER TORRE of 38/ 93 / 0418 Auckland Appellant (Appeal No. DCA 152/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of July 1995 APPEARANCES P A Murphy, advocate for appellant P A Swarbrick for Kenson Industries Limited P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON This appeal followed the decision of a review officer that the appellant had not suffered a work injury in the course of her employment by Kenson Industries and that she suffered from a diseased back. The facts which gave rise to the appeal are that on 20 October 1992, the appellant lodged a claim for cover stating that on 24 June 1992 when she turned around to pick up the telephone at work, her left foot caught on the cord and she slipped and twisted her back and has been painful ever since. Her General practitioner, Dr Leung diagnosed a prolapsed lumbar disc with left sciatica. Dr Leung referred the appellant to a spinal surgeon and on 23 October 1992 the respondent received a Request for Approval of Private Hospital Treatment costs in order to relieve the 2 severe back pain. The respondent gave approval for the Private Hospital Treatment and gave assistance with home help, weekly compensation and transport costs. When the respondent requested information from Kenson Industries, it replied that it disputed the fact that the appellant's injury was work related. The respondent requested further information from both the appellant and Kenson Industries. Kenson Industries submitted a letter from its Operations Manager on 22 December 1992 in which he stated that the record in the company's accident register was not made at the time of the alleged accident and that it was not reported to any first aid person or any company employee at the time. The report stated that there had been a considerable delay between the 24 June and her first attendance on Dr Leung on 20 October 1992 during which time she apparently carried out her normal duties. The appellant stated that the incident was reported to a manager who had advised her to record it in the first aid register. She said that she had been to her General Practitioner on three occasions and that she was the only person in her office at the time of the incident. The respondent notified Kenson Industries on 17 February 1993 that having investigated the claim it considered it to be a work injury. Further enquiries were made and on 18 February 1993, Dr Leung reported: '(1) Diagnosis - prolapsed lumbar disc. Current condition - slowly recovering after surgery by Mr Gordon Howie (Orthopaedic Surgeon) on 3.2.93. (2) Patient describes the injury where she bent down sideways to pick up a telephone, caught her Left foot on the telephone cord and slipped thereby twisting her lower back. The sequence of events leading up to the injury are entirely consistent with the prolapse of her lumbar disc. (3) No previous history of back prolapse or previous back injury to my knowledge. She has been my patient since 1985. (4) Enclosed specialists reports...." Attached to Dr Leung's report was an x-ray report dated 15 January 1993 from Mercy Radiology Group which stated: "Advanced generative change of L5-S1 disc with density related to its posterior aspect which either represents an old limbus fracture or a small calcified central disc herniation. There appear to be not signs of displacement of the S1 nerve roots or the dural sac. Bilateral mild bony foraminal stenosis is also present at this level from osteophytic encroachment". Kenson Industries then applied for a review of the respondent's decision and submitted a report from Mr G R Howie, a Spinal Surgeon dated 19 April 1993 in which he stated: 3 "This is to certify that the above sustained personal injury by accident on 24.6.92 when she turned and twisted to pick up a telephone, falling against a wall... Subsequently CT scan on 14. 1.93 shows there was degenerative change in the L5-S1 disc with bony narrowing compressing the L5 nerve roots. There was a calcified disc prolapse which was affecting the S1 nerve root". Kenson Industries submitted a report dated 15 July 1995 from Dr E W Dryson, a specialist in occupational medicine in which he stated: "This is essentially a trivial injury and would not have ruptured a healthy intervertebral disc. There is strong evidence that the disc was not in fact healthy on 24 June 1993. The CT scan of 15 January 1993 showed advanced degenerative change in the L5/S1 disc. There was sclerosis seen in the endplates of adjacent discs indicating long term changes. There was an area of calcification projecting from the disc suggesting either an old limbus fracture or a calcified central disc herniation. Again, these changes are indicative of long standing changes. There were osteophytes present at this level, indicating a degree of secondary osteoarthritis (i.e. as a result of, or following the disc injury) which itself develops slowly over years. The disc degeneration therefore was many years old at the time of the CT scan, not 7 months as the dated of the alleged injury would indicate. It is accepted that a jarring of a degenerative disc may precipitate onset of symptoms. This is not the same as causation however. Supposing that for some reason a jarring episode was accepted as the cause of a prolapsed disc, there is no reason to attribute onset of symptoms to this particulars episode of jarring as opposed to any other of the jarrings that inevitably accompany the activities of daily living, in the home, during recreation and driving the car. Indeed, symptoms of prolapsed disc may in fact develop without any history of injury at all. I note in passing that the accident register at Kenson Industries records a twisting but not a tripping injury. Since this was recorded closer to the time of the alleged injury than the M46 statement, it is more likely to be correct. To summarise, therefore, although Mrs van der Torre plainly has had a prolapsed intervertebral disc, there is no evidence that it was caused specifically on the 24 June 1992, or indeed has arisen out of or in the course of employment at all." The appellant requested Mr Howie to consider Dr Dryson's report and on 21 September 1993, he replied to he as follows: "Thank you for forwarding the letter of Dr Dryson. Enclosed please find copy of my original letter of 16.10.92 in which I accept that the initial injury of 24.6.92 might not be recognized as personal injury by accident. However, I would state that it is my understanding that you did not have significant symptoms of back pain or sciatica prior to the injury of 24.6.92. Are you able to corroborate this? I often see patients who have pre-existing changes on radiographs and who then precipitate significant symptoms in exactly the mechanism that you describe. Contrary to what Dr Dryson states, this is not a trivial injury; twisting injuries and flexion are the exact mechanism by which most disc injuries occur. I accept that at the time of injury your disc was not "a healthy intervertebral disc" and indeed the majority of ruptured intervertebral discs occur in discs which already show some degenerative features. This is, however, a normal sequence of events. As Dr Dryson quotes, the symptoms of prolapsed disc may in fact develop without any history of injury at all but the majority occur with some form of trauma. A paper from Mr Graham Martin, neurosurgeon of Wellington, indicated that some 72% of disc prolapses were precipitated by trauma. This article was published in the New Zealand Medical Journal some years ago but you may be able to obtain a copy of that reference by writing to Mr Martin, Department of Neurosurgery, Wellington Hospital, Wellington. I would strongly dispute Dr Dryson's closing paragraph, that there is no evidence that it was caused specifically on 24 June or 26 June when there is an exact description of the sort of injury which causes the majority of intervertebral disc prolapses." The review hearing was held on 2 August 1993 when the only person present was Mr Adams, the Product Data Manager of Kenson Industries. The review officer reviewed the medical evidence and concluded that the respondent's decision was wrong and that the injury was "substantially caused by disease". I have now received an affidavit from the appellant confirming the manner in which she allegedly fell on 24 June 1992 and confirming that prior to that time she had suffered no back problems. Other statements from work colleagues confirm that they were not aware of any prior problems with the appellant's back. Mr Murphy submitted that there was insufficient evidence to support the finding that the appellant had suffered a work injury and he referred in particular to the medical reports which in his submission disclose advanced degenerative change in her back prior to any accident. He submitted further that the company was concerned that the only evidence of an accident was the appellant's description and he queried the length of time between its occurrence and the time she sought medical attention. The company was also concerned that its rules had not been followed in that the alleged accident had not been recorded in its accident register nor had it been reported to another employee. Mrs Swarbrick submitted that between 26 June 1992 and 29 June, the appellant had obtained treatment from a chiropractor which in fact was recorded in the company's accident register. She said that as the appellant's pain continued, she had sought advice from Dr Leung as to whether the problem was in her kidneys and in order to 5 check this she underwent laboratory tests which proved negative. Dr Leung apparently prescribed painkillers. In October 1992 the pain became so great she had difficulty getting out of her car and returned to Dr Leung who diagnosed a prolapsed disc. She was then referred to Dr Howie who concluded that the incident related back to the accident on 24 June 1992. Mrs Swarbrick submitted that the appellant did record the accident on the same day and discussed it with the Production Manager. She submitted that the review officer was in some difficulty because he had not had the benefit of interviewing the appellant. Ms Zumbach submitted that two issues are raised in this appeal being: 1. Did an accident occur and; 2. Whether the injury the appellant had suffered was caused wholly or substantially by disease so as to be excluded from the cover the Act provides. Ms Zumbach submitted further: 1. That while the employer disputes the time at which the entry was made in its accident register, it was in fact entered some time between 29 May 1992 and 5 August 1992. 2. That the slightly differing descriptions of how the appellant tripped and fell did not detract from her evidence. 3. Mr Howie accepted that the description given followed the usual description in cases for intervertebral disc prolapses and that this was also confirmed by Dr Leung 4. That the review officer considered he was in some doubt through lack of evidence to corroborate Mr Howie's report but that this has now been removed by the statement in the appellant's affidavit that prior to 24 June she had never suffered previous back problems nor had she complained to anyone about problems. This was also substantiated by Dr Leung as the appellant has been his patient since 1985 and has never previously requested attention for back problems. 5. That taking the appellant's affidavit with the reports from Mr Howie and Dr Leung, the decision of the review officer is no longer sustainable. 6. That the decision in Tui Milk Products Lid v Accident Compensation and Compensation Insurance (18/95) supports the proposition that the eggshell skull principle can apply in cases of this nature although by virtue of section 10, some inroads are made into that principle. She submitted that in this case 6 personal injury by accident per se has occurred and the disease condition was not the whole or a substantial cause of the personal injury. The relevant law is section 65 of the 1992 Act which relates to acceptance of work injury claims. Section 6 provides a definition of "work injury" being: "Definition of "work injury"--- (1) For the purposes of this Act, "work injury", in relation to any person, means personal injury arising out of and in the course of employment of that person;" Section 3 then provides: ""Arising in the course of employment", in relation to a personal injury, means an injury that occurs-- (a) While any employment task is being performed at a place of employment; 'Arising out of and in the course of employment" means arising out of employment and arising in the course of employment: "Arising out of employment", in relation to a personal injury, means an injury that would not have occurred but for the person being in that person's place of employment..." and section 10 states: " General exclusions from cover---(1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is--- (a) Personal injury 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 (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury covered by this Act. " Accident" is defined in section 3 as meaning: (a) 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;" It is appropriate that I should refer to the statement of Stringer J in Mccarthy v Union Steamship Co of NZ Ltd [1916] NZLR 1154 in which Ms Zumbach referred me and which the Judge stated: 7 "It is clear that if a man's physical condition is such as to render him peculiarity susceptible to grave consequences from an accident which in a normally healthy person would have no such consequence that will not affect the right to compensation for the more serious result." The medical evidence is clear from the reports of Mr Howie and Dr Leung that a disc prolapse can occur in the manner now described by the appellant in her affidavit. While the reports indicate the pre-existing degenerative changes there is no evidence that this had caused any problems prior to the incident of 24 June 1992 when the appellant twisted her back and thereafter suffered pain. This was subsequently diagnosed as a prolapsed disc. Mr Howie and Dr Leung both had the benefit of examining the appellant. Dr Dryson provided his report on the basis of the documents submitted to him by Kenson Industries but did not have the benefit of examining the appellant. He specialises in occupational health and considered that the disc was not healthy at the time of the incident. I consider that the incident on 24 June 1992 was an accident at work per se. The appellant's previously sound back then developed problems. While there is evidence that there was some degeneration at the site of the disc prolapse I consider that the cause of the problem was the twist and fall and that the disease was not the substantial cause of the injury. The decision of the review officer is therefore reversed and I find that the appellant did suffer a work injury. There will be costs to Mr Murphy of $400.00 DATED at WELLINGTON this 23 10 day of August 1995 A W Middleton District Court Judge dc152/95.doc (nur)