Graydon v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 268 ACR 220/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 151 OF THE ACT BETWEEN TINA GRAYDON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 August 2015 Appearances: H Peart for the Appellant I Mclachlan for the Respondent Judgment: 3 September 2015 RESERVED JUDGMENT OF JUDGE AA SINCLAIR Issue [1] At issue in this proceeding is whether the Accident Compensation Corporation ("Corporation") properly suspended Ms Graydon's entitlements on the basis that Ms Graydon's continuing symptoms were due to pre-existing lumbar spondylosis. Background [2] On 19 June 2013 Ms Graydon had been working at her computer. She got up and lost her balance. She stumbled forward and twisted to regain her balance and had acute pain in her lower back. When the pain did not resolve, she visited her GP, Dr Hou, and lodged a claim which was accepted by the Corporation. Ms Graydon subsequently had physiotherapy treatment which resulted in a gradual improvement of her symptoms. [3] In August 2013, Dr Hou referred Ms Graydon to a muscular-skeletal physician, He undertook an initial examination and also requested an MRI scan. Dr Ng saw Ms Graydon again on 21 August 2013. He noted that the MRI showed small protrusions at L3/4 and L4/5. At the L4/5 disc Ms Graydon also had an annular tear. He stated that these were likely to be her initial sources of lumbar pain as a result of her injury. Dr Ng noted that as a complication of that, Ms Graydon had developed central sensitisation causing more widespread pain up either side of the lumbar and lower thoracic spine. He observed that pain medication was assisting but that Ms Graydon continued to have pain from the specific L3/4 and L4/5 disc lesions. [4] Dr Ng considered that Ms Graydon would benefit from steroid injections and sought funding for this treatment. The injections were approved following a report from the branch medical advisor, Dr Sandhu. He observed that the changes noted indicated an underlying degeneration. However, giving the benefit of the doubt, he considered that Dr Ng's request should be allowed. Dr Sandhu also recommended that an independent orthopaedic specialist opinion be obtained. [5] Ms Graydon underwent the injection procedure on 17 September 2013 but had only limited relief. Mr Vasudeva Pai, an orthopaedic consultant, completed a specialist medical review on 23 September 2013. He noted that Ms Graydon had more mechanical pain than neuropathic pain and had more subjective symptoms than clinical findings on observation. He went on to state: She has some limitation of range of movement in the spine but neurologically she is intact and there is no nerve root irritation. I reviewed her MRI and confirm the findings as reported which is consistent with a degenerative spine. Her treatment should be conservative and, of course, strengthening exercises are important. The main stay of treatment should essentially be non-operative and non-evasive... . [6] Mr Pai was of the opinion that Ms Graydon had an aggravation of lumbar spondylosis. He considered that the suggested mechanism was a "normal physiological activity and a low velocity event and cannot be classified as an injury event". He observed: In the presence of multilevel spondylosis, it is not uncommon to get pain or acute symptoms in the back either spontaneously or following low velocity events due to an aggravation. [7] Mr Pai was of the view that the relationship between the diagnosis and pathology was temporal and not causal. He did not consider that there was any new pathology on the MRI caused by the June 2013 event and he was of the opinion that the findings were consistent with longstanding degeneration with facetal joint arthritis at multiple levels. He went on: The presence of an annular tear is a contentious issue and its importance is not known. This can be present both in a symptomatic and asymptomatic population. .. ...The clinical importance of an annular tear is not known and it is generally associated with a degenerative disc. In my opinion, in her case, it is more of a degenerative annular tear rather than acute traumatic based on MRI findings as well as taking into consideration the events as stated by her. [8] In answer to the question whether the cause of the ongoing incapacity suffered by Ms Graydon was substantially caused by the injury or was caused by non-injury related factors, Mr Pai stated: The acute symptoms of an aggravation generally take six weeks to three months to resolve and any symptoms beyond three months in the absence of nerve root irritation or deficit should be considered as being related to an underlying pathology rather than an event or injury. [9] Based on Mr Pai's report Dr Sandhu considered that the causal nexus was no longer satisfactory and on 9 October 2013, the Corporation issued a decision suspending Ms Graydon's entitlements. [10] Dr Ng disagreed with the Corporation's decision and wrote to the Corporation on 17 October 2013 stating: Dr Pai's report has assumed that the L3/4 and L4/5 disc changes seen on MRI are due to spondylosis or degenerative change. If these changes were present before the injury, then they are asymptomatic. The patient only developed pain after the injury on 19/06/13. Therefore the sudden onset of pain after the accident is not likely to be due to degenerative disease but is substantially due to the accident. Had the patient not sustained the accident, she would have likely remained asymptomatic. Dr Ng also noted that Ms Graydon had reported that her previous widespread lumbar pain had reduced to a more localised area and she had been able to commence rehabilitation exercises which would help her to return to normal function and go back to work. [11] Ms Graydon lodged an application for review of the Corporation's decision on 22 October 2013. [12] Mr Pai provided a supplementary report dated 24 October 2013. He noted that he had considered Dr Ng's further report and remained of the opinion that Ms Graydon had: "pre-existing disc degenerative changes at multiple levels as stated on MRI and these findings cannot be explained on the basis of her stated event." He considered that it was not an uncommon situation that a patient may well have extensive spinal degenerative changes without actually being symptomatic. It was an event which could further the whole process causing the patient to become symptomatic and it was at that stage that all the pathological changes in the spinal area suddenly became noticeable. [13] Mr Geoffrey Coldham, an orthopaedic spinal surgeon was instructed on behalf of Ms Graydon to provide a further report for the purposes of the review hearing. Mr Coldham answered questions posed by counsel for Ms Graydon as follows: 1. What is Tina Graydon's present diagnosis? Dina had an episode of lower back pain in June 2013 which has predominantly resolved. She now only has minor residual flexion provoked lower back pain. She has underlying spondylosis at the L3/4 level manifest by the anterior osteophyte formation on the plain x-rays and MRI scan and has disc desiccation of both the L3/4 and L4/5 disc with minor posterior disc bulging at both levels. 2. What in your opinion is the cause (or causes) of Ms Graydon's ongoing back symptoms - for example, a spinal issue, a musculo-skeletal issue, degeneration, or a combination? It is my impression that Dina had an underlying lumbar spondylosis which was asymptomatic. She has suffered an injury when she stood up and twisted when working on her computer on 19 June 2003 [2013]. This injury may have resulted in minor disc disruptions at either L3/4 or L4/5 levels in her back. The injury, however, is unlikely to have caused the disc desiccation at both levels and anterior osteophyte formation at the 13/4 level. My impression is that the injury Dina suffered on 19 June 2013 has resulted in the underlying spondylosis becoming symptomatic. Even if she had had minor disc disruptions or tears in the discs as a result of the injury one would have expected the symptoms from those injuries to improve and this is exactly what has happened. With time her back pain has significantly improved to the point that she is now back at work although not doing heavy lifting. 3. Ms Graydon has cover for a "lumbar sprain" injury caused by the accident event on 19 June 2013. Is that injury likely to have been a material cause of Ms Graydon's incapacity since October 2013? With respect to the cause of Ms Graydon's ongoing incapacity, this lady had no pain in her back prior to her injury. She suffered a twisting injury and developed back pain. Her back pain has gone on to improve significantly, although is not completely resolved. As I note above the injury has caused the underlying lumbar spondylosis to become symptomatic. Either way, the mechanism of the injury was not that severe and the pathology seen on the MRI was not that indicative that a significant trauma had occurred of the spine that one would expect ongoing symptoms to be directly related to this injury and, as I noted above, this is being manifest by Dina's symptom progression in that her symptoms have significantly resolved and I would expect to continue to resolve with time. However, it is my impression that Dina's initial acute management and her rehabilitation for a prolonged period of time should have been under the coverage of ACC as it is well known that disc disruptions, even in the presence of underlying spondylosis may take up to six months to a year to settle. [14] Mr Pai then provided another supplementary report dated 11 April 2014. He stated that he agreed with most of Mr Coldham's comments which he considered were in line with his own report. He observed: Mr Coldham has noted that the injury effect on the MRI is not substantial and that the possibilities are either aggravation or some disruption of the disc at the time of getting out of the chair. The difficulty here is to establish as to what pathological disruption has occurred on the basis of the MRI or on the basis of her clinical manifestation. In my opinion, on the balance of probabilities, her presenting symptoms following the stated event was predominantly related to her underlying spondylosis and I cannot explain an acute disruption on the basis of her MII. . .. . It is well recognised that any disc that is affected by degenerative changes is more liable to be aggravated than a normal disc, and once aggravated, the systems may be slow to settle and in some cases some residual symptoms may persist. Expressed alternatively were it not for the degenerative changes, it would be anticipated that the symptoms would resolve over a period ranging from a few weeks to around three months. [15] Ms Graydon returned to work on a part-time basis in January 2014 and was back at work full-time avoiding heavy lifting in March 2014. [16] The application for review was heard on 14 May 2014 and the application was dismissed. Case for the Corporation [17] The Corporation contends that there was not the necessary causal nexus between Ms Graydon's symptoms as at 9 October 2013 when entitlements were suspended and the injury she sustained on 19 June 2013. The Corporation relies on the report from Mr Pai who is of the opinion that Ms Graydon had pre-existing spondylosis and that the cause of the symptoms in October 2013 was most likely related to that condition rather than any injury sustained on 19 June 2013. Discussion and analysis Legal Issues [18] The Corporation may suspend entitlements under s 117(1) of the Accident Compensation Act 2001. This section provides that the Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. [19] In Ellwood v Accident Compensation Corporation Mallon J (considering s116 of the Accident Insurance Act 1998 ) was of the view that the obligation to obtain sufficient evidence must be on the Corporation. Her Honour considered that the test proposed by counsel of asking whether there is sufficient basis on which entitlements should be suspended was a reasonable one. If there is an insufficient basis then the test of "not satisfied" is not met. If there is a sufficient basis then the Corporation can be "not satisfied" of the right to entitlement. As the reviewer and the 'L Wood v Accident Compensation Corporation [2007] NZAR 205 Mallon, J 2 The 1998 Act contained wording identical to $117 of the 2001 Act District Court apply the same test, Mallon J considered that the same approach should be taken at each stage. She went on to say: "If the position is uncertain, then there is not a sufficient basis. The "not satisfied" test is not met in these circumstances". Suspension Decision [20] As noted the Corporation had Mr Pai's report at the time it suspended entitlements. Mr Pai considered that there was no injury event and was of the; opinion that Ms Graydon had an aggravation of lumbar spondylosis. In his view, there was a temporal but not a causal relationship between the diagnosis and pathology. [21] Mr Pai observed in answer to the question as to whether the cause of Ms Graydon's ongoing incapacity was substantially caused by her injury or non-injury related factors, that acute symptoms of an aggravation take six weeks to three months to resolve and any symptoms beyond that period in the absence of nerve root irritation or deficit should be considered to be related to an underlying pathology rather than any event or injury. [22] I accept that on the basis of this report, the Corporation had sufficient basis not to be satisfied that Ms Graydon was entitled to continue to receive entitlements at the time it made its decision to suspend. However, I turn now to consider whether there was a sufficient basis to be not satisfied taking into account the further reports which were obtained following the suspension decision and also Ms Graydon's ongoing improvement. Further Evidence [23] It is not in issue that Ms Graydon had an underlying spinal spondylosis which may have contributed to her injury symptoms. However, I accept Mr Peart's submission that the accidental injury need not be the sole cause of incapacity. An injury can coexist with natural degeneration. In this case where there is a combination the question is whether the covered injury materially contributed to Ms Graydon's ongoing incapacity at the time the suspension decision was made or whether the injury was spent. [24] Dr Ng and Mr Coldham take a different view to that of Mr Pai. Dr Ng considered that the Corporation's decision was incorrect. He was strongly of the view that Ms Graydon's ongoing symptoms were as a result of the injury event and not of any degenerative disease. [25] Mr Coldham noted that Ms Graydon did not have any pain in her back prior to the injury on 19 June 2013 when she suffered the twisting injury. He considered that this injury had likely resulted in minor disc disruptions or the injury caused the underlying spondylosis to become symptomatic. Mr Coldham observed that if Ms Graydon had had minor disc disruptions or tears in the disc as a result of the injury then it would be expected that the symptoms would improve which was in fact what had happened. He was of the view that disc disruptions, even in the presence of underlying spondylosis may take up to six months to a year to settle. 26] Dr Ng also emphasised in his report that Ms Graydon's symptoms had continued to improve. Indeed, by the time that Dr Ng wrote to the Corporation on 17 October 2013 Ms Graydon's pain had become more localised and she was able to commence rehabilitation. As noted above, Ms Graydon subsequently returned to work on a part time basis in January 2014 and to fulltime work (avoiding heavy lifting) in March 2014. [27] In his final supplementary report Mr Pai accepts that it is difficult to establish what pathological disruption has occurred on the basis of the MRI or on the basis of Ms Graydon's clinical manifestation. However, he remained of the opinion that on the balance of probabilities, Ms Graydon's presenting symptoms following the stated event predominantly related to her underlying spondylosis and that were it not for the degenerative changes it would be anticipated that the symptoms would resolve over a period ranging from a few weeks to around three months. [28] Taking into account the totality of the evidence, I am unable to conclude on the balance of probabilities that Ms Graydon's injury was spent at the time the Ms Graydon's entitlements. Accordingly, having reached this view, I do not consider that the Corporation continues to have a sufficient evidential basis to be not satisfied that Ms Graydon remained entitled to receive ongoing entitlements for her covered injury at the time of suspension. Decision [29] The appeal is allowed. The review decision of 14 May 2014 and the Corporation's suspension decision of 9 October 2013 are set aside with the effect that Ms Graydon is eligible for entitlements for the period of time that she remained incapacitated by her injury. [30] Ms Graydon is also entitled to costs. If the parties are not able to agree costs then memoranda are to be filed. Judge AA Sinclair District Court Judge