Bush v Accident Compensation Corporation (Suspension of Entitlements)

IN THE DISTRICT COURT AT HASTINGS ITE KOTI-A-ROHE KI HERETAUNGA [2019] NZACC 57 ACR 222/16 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN TREVOR BUSH Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 13 May 2019 Appearances: A Cadenhead for the appellant J Sumner for the respondent Judgment: 4 June 2019 RESERVED JUDGMENT OF JUDGE DENESE HENARE [Suspension of Entitlements s 117 Accident Compensation Act 2001] 1] The appellant, Trevor Bush challenges the Corporation's decision dated 7 December 2015 declining to pay weekly compensation and suspending his entitlements for a lumbar injury. [2] The primary issue in the appeal is whether there is a sufficient evidential basis to determine Mr Bush is no longer eligible to continue to receive entitlements. Agreed Facts [3] Mr Bush, a 61 year old Car Mechanic, has a recent history of persistent back problems. Relevant covered claims are: 20 December 2010 lumbar sprain, sustained "bending over at work and sudden pain in lower back"; [ii] 18 June 2012 contusion left hip and thigh, fracture of left radius and ulna, sustained when he tripped after stepping backwards while shifting a heavy trailer; [iif] 9 October 2012 lumbar sprain, sustained when he twisted his back while rolling out from under a horse float; and [iv] 7 July 2015 lumbar sprain, sustained when he stepped sideways at work and felt a twinge/click in his lower back. Current lumbar sprain claim [4] The Corporation's decision relates to a covered lumbar sprain sustained on 13 August 2015 when Mr Bush fell 1 metre from a ladder onto his back. The ACC45 injury claim form was lodged on 17 August 2015 and Mr Bush was certified unfit for work for 2 weeks until 27 August 2015. Weekly compensation commenced. [5] On 24 August 2015, Dr Gibberd submitted an ARC 18 Medical Certificate and certified Mr Bush fit for light duties and reduced hours until 12 September 2015. [6] Also, on 24 August 2015, Dr Gibberd wrote to the Corporation providing copies of the medical records. Dr Gibberd advised: 1. His current diagnosis is lumbar sprain; 2 . Current treatment plan involves graduated return to work, analgesia and chiropractor treatment; 3. Expected recovery time - I am unsure - maybe 2 months?? Things affecting rehabilitation - I am concerned that Trevor tells me his boss does not want him back at work unless he is 100% fit. I think he is going to need an Of work place assessment and a graduated return to work and I think it is important that his boss acknowledges and supports the value of this approach. [7] The medical notes Dr Gibberd provided to the Corporation included the following: 7 July 2015 lumbar spine x-ray found: Spinal alignment is distorted by a slight left concave scoliosis and vertebral body height is normal. Moderate to marked disc space reduction is associated with osteophytic lipping and facet sclerosis. Sacroiliac joints are preserved and there is no focal bone lesion. Comment: Lumbar spondylosis with facet joint osteoarthropathy. [8] 7 July 2015 note of Dr Sarah Prior, General Practitioner, wrote: Was standing at machine at work, stepped sideways, and felt a twinge/click in back - central/left and left groin. Feels tight down lateral aspect of left thigh and into knee. Nothing below the knee. Stabbing pain in back when bending forward to pulling up to straighten back ... Imp: Lumbar strain ... Off work this week, but if better can go back later in week ... [9] 13 August 2015 note of Liz McCullogh, Registered Nurse, recorded: Very frustrated, tearful, not getting anywhere with back problem. Cannt [sic] work with ongoing pain. Feels no-one listening. Has been seeing Chiropractor for 6/52 who took further XR and told him he has got issues with back. Having problems with boss at work, looking for other work. Doesn't know where to go. [10] 13 August 2015 note of Dr Phil Weeks, General Practitioner, stated: PW WALK IN very frustrated+ + angry++++ "pain killers not working". Seeing Chiropractor but back pain not going away ow or rx. Told boss today can't work being asked to do things he can't because of pains "no-one cares" shouting ... Options discussed med cert 2w. May need ortho review and MRI ... [11] 17 August 2015 consultation note of Dr Gibberd, wrote: Fell off a ladder on Thursday and came into work did not tell doc or nurse at the time as too upset was 3-4 rungs up a ladder - on way up caught foot in rope and fell and ladder fell on him - landed on concrete floor... Having ongoing accidents - walking into things and kicking things because feeling off-balance. Having problems over last 8-10 weeks especially at work when bending down, can't get up- agony all day. ACC claim has been accepted ... Very long chat re natural history of back pain. O/E tearful and upset. No spinal tenderness. Flexion fingertips to ankles. No issue with lat flexion or rotation ... Chat re only sign off completely for 2 weeks then will be fit to do gradual return to work ... [12] 24 August 2015 consultation note of Dr Gibberd, reported: Has appoint wioth [sic] Simon Hadlow on 23/9/15. Needs xray. Pain coming and going not there all the time... Pain is ongoing for a while now. Working at bench at home - with bench at correct level- had pain 3-4/10 by end of the day ..." O/E no spinal tenderness. Flexion - fingertips to ankles. Almost no extension. Lat flex and rotation. Imp - lumbar sprain slowly settling. P back to work 4 hours light duties. [13] On 27 August 2015, Dr Michael Ames, BMA, reviewed the claim. Dr Ames noted the history of injuries was relatively complex and advised: Reviewing the GP notes I would be inclined to think that the August event was an aggravation of the July injury rather than a new injury. Investigation by way of X-ray of the lumbar spine indicates that he has significant degenerative disease affecting the lumbar spine. The x-ray report refers to moderate to marked disc space narrowing associated with osteophytic lipping and facet sclerosis. These are changes noted on x-ray where changes are not readily visible unless they are significant. He has had issues from his back for several years as shown by GP notes and claims filed. There is x-ray evidence of significant degenerative disease in his lumbar spine. I believe that the event of 13.8.2015 aggravated that of 7.7.2015. This latter event was trivial in the scheme of things, simply stepping aside may not even qualify for an injury event... 1. He may have suffered a sprain/strain in the latest event (falling off the ladder). At best this would have resulted in a sprain/strain. However, I suggest that the underlying diagnosis is his lumbar degenerative disease which has become symptomatic ... 2. For now I think we have to accept incapacity as a result of injury. I would not accept a simple sprain/strain for longer than 4 weeks, usually less /maybe 2 weeks with appropriate physio). Given his degenerative problems I would not recommend chiropractic as manipulation of the facet joints would be likely to make things worse ... [14] On 7 September 2015, the Corporation obtained copies of Mr Bush's chiropractic treatment notes. Dr Neil Haldane, Chiropractor, advised he had been treating Mr Bush since 7 July 2015 for his earlier lumbar sprain, but had only seen him once after 13 August 2015. Dr Haldane advised: The current diagnosis was left lower lumbar, left sacro-iliac and left hip strain/sprain complex; The current treatment plan was specific manual spinal therapy and soft tissue therapy; The expected recovery time was up to 6 weeks; and Mr Bush had minor pre-existing low back degenerative changes and possible yellow flags that may affect his recovery. [15] On 11 September 2015, Dr Gibberd certified Mr Bush fit for light duties until 23 September 2015, and fit for normal duties and work hours from 24 September 2015. [16] On 15 September 2015, Amy Pope of APM Workcare completed a Stay at Work Return to Work Progress Report and wrote that Mr Bush's back was improving, and he was managing his injury much better. Ms Pope noted he was completing many tasks at home, including mechanical and DIY activities, he was actively engaged in a gym programme and was experiencing less back pain. [17] On 22 September 2015, the Corporation ceased weekly compensation upon receipt of a medical certificate dated 11 September 2015 "which says you can now return to normal work duties from 24/09/2015 following your accident on 13/08/15". [18] On 23 September 2015, Mr Hadlow, reviewed the medical history and stated: Thank you for referring this 61 year old Auto Technician who has been off work since about 13.4.15. On that day he fell backwards off a ladder flat onto his back ... His problems date back to April when he was seen at your practice on 14.4.15 and was noted to have worsening low back pain going to the left groin and lateral hip. This was then exacerbated in a minor accident, which was documented on 7.7.15 when he stepped sideways and leant over to pick up a spanner, felt pain in the left groin, but this was his third accident in about three weeks and was associated with other pain in the back and down the legs ... He tripped over a hoist in 201 1 and fell backwards onto his back and had a lot of bruising in the right lower back, and has had niggling back pain since then but the leg pain is of more recent origin but he is not too sure but it is probably a few months ... The pain still affects the whole of the left leg just at night, particularly if he is lying on the left side and when he wakes in the morning the pain is gone. However lifting, twisting, bending, coughing all aggravate the pain in the back and legs ... Examination - today he is a little tense, he is slightly antalgic favouring the left side, he has forward flexion limited to 60 degrees, straight leg raise 70 degrees with negative sciatic ... Diagnostic Tests & Imaging - Advance x-rays show generalised lumbar spondylosis with normal SI joints .. . He is actually getting a little better since he has been off work. To remain off work and see again with MRI scan to exclude any significant surgical pathology. [Emphasis added] [19] On 28 September 2015, Ms Pope submitted the Stay at Work Return to Work Completion Report in which she advised Mr Bush had progressed well with his gym programme and was now able to self-manage at home. She noted that he had been certified fit for full duties from 24 September 2015 and was to have an MRI to clarify any back issues that needed ongoing management. [20] On 7 October 2015, Dr Tipene-Hook, Radiologist, reported on a MRI scan of the lumbar spine: The lumbar discs show some dessication throughout and modest loss of disc height, most noticeable at L2-3. At L1-2 minor diffuse disc bulge with ventral lipping endplate changes are noted ... At L2-3 minor diffuse disc bulge is also present, with reasonably conspicuous ventral lipping endplate changes noted ... At L3-4 modest diffuse disc bulge is present, with developing central canal narrowing down to approximately 8 mm AP; mild background facet joint sclerosis is also seen .. . At L4-5 modest diffuse disc bulge is present, with possible minute posterocentral developing annular tear, as manifest by some tiny punctate high signal change - Some canal narrowing down to 9 mm is seen ... At L4-S1 mild diffuse disc bulge is also present. Accompanying moderate lipping facet joint sclerosis is present, with some apparent synovial cyst formation seen on the left, which contributes to some left neuroforaminal narrowing and possible irritation on the traversing L5 nerve root ... CONCLUSION: Modest developing multilevel lumbar spondylosis as detailed, with accompanying spinal canal narrowing and possible minute posterocentral annular disc tear seen at L4-5. There is also L5-S1 facet joint arthropathy contributing to left neuroforaminal narrowing with possible irritation on the existing L5 nerve root [21] On 23 October 2015, Mr Bush's employment ceased when the business he worked for was sold. [22] On 4 November 2015, Mr Hadlow noted Mr Bush was still troubled by low back, left hip and leg pain. Mr Hadlow noted the MRI findings of generalised lumbar spondylosis without significant annular or disc protrusion, and that the small lumbosacral facet joint cyst extending into the foramen could be affecting the existing L5 nerve root. He suggested trialling a left L5/S1 foraminal steroid injection. Mr Hadlow certified Mr Bush fully unfit for work until 16 December 2015 because of left sciatica. He diagnosed "disc injury". [23] On 13 November 2015, Dr Sarita Dara, Occupational Medicine Specialist, considered whether the subsequent incapacity of disc injury and sciatica was related to Mr Bush's covered lumbar sprain. Dr Dara reviewed the claims history and medical notes and advised: There are several prior claims for lumbar sprain dating back to 2010. Client is noted to have reported intermittent low back pain since 2012. However, relevant GP notes for June accident (18/6/12) and follow up notes of 16/7/12 do not document any evidence of back injury. Claimant reports intermittent symptoms in back with clinical diagnosis of muscular back pain (GP notes dt 7/11/12). From Nov 2012 till April 2015 - there are no medical notes documenting low back pain. The lumbar sprains from the event of 9/10/12, 07/07/15 appears to be aggravating episodes of pre-existing non-injury related back pain. Imaging (x-ray and MRI) has confirmed generalised lumbar spondylosis with facet osteoarthropathy, Mr Hadlow has in his report noted the spinal degenerative changes and provided a diagnosis of low back injury ... [24] Dr Dara concluded: There is no convincing evidence at this stage, that there's a relationship between current symptoms (for back pain and intermittent sciatica), incapacity and personal injury caused by accident. There is no convincing evidence of disc injury from the event of 13/08/15 or from any of the prior claims for covered injury or lumbar sprain. Ct has a longstanding history of chronic back pain dating back to November 2012 (GP notes dt 7/11/12) with some reference to onset of back pain from June 2012. But there is no documented evidence of injury to back in June 2012. The cause of the low back pain does not appear to be accident related but appears to be substantially due to multilevel degenerative pathology in the spine (generalised lumbar spondylosis with facet osteoarthropathy). GP notes document intermittent aggravations of low back pain in the absence of a specific accident event (GP notes dt 7/11/12 and 14/4/15). There are also exacerbations noted due to accident (relevant claims with DOA-9/10/12, 07/07/15 and 13/08/15). Please discuss with TCMJTM regarding on-going entitlements ... [25] On Dr Dara's advice, clarification was sought from Mr Hadlow, who responded on 24 November 2015 to questions as follows: 1. What was the original accident event and what was the injury or condition caused by this event? Original accident was a fall from a ladder on 13.8.15 causing a back injury, presumably at least a soft tissue bruising and strain, and possibly a disc injury but not definitely confirmed by MRI scan. 2. How long would you expect such an injury to take to recover? In a young healthy person with normal tissues this would recover in six weeks. This patient is aged 61 and has normal age related changes in his lumbar spine which will delay his recovery and commensurate with his age so it may take up to three months, possibly longer 3. What was the condition or diagnosis of 4.11.15 when further incapacity for work was provided? The patient was still being troubled by low back pain and left leg pain, particularly aching at night. He had lost his job but was still requiring Codeine and Brufen analgesia. 4. What in your professional opinion is the client's current condition or diagnosis? The patient has been referred for a left L5/S1 foraminal steroid given the possibility that he may be getting LS nerve root irritation, to try and help with his left leg pain. 5. Is the client's current condition, diagnosis, level of symptoms of functional incapacity caused by the original accident event? If so can you please describe/explain the nature and event of the injury related pathology' The injury sustained on 13.8.15 has contributed to the patient's ncapacity, but as documented in the body of the report he has had several injuries dating back to 201 1. The patient has age related changes in his lumbar spine which have not prevented him working until his most recent injury on 13.8.15 ... [26] On 7 December 2015, Dr Dara considered Mr Hadlow's further comments. Dr Dara advised Mr Hadlow had explained the 13 August 2015 event likely caused soft tissue bruising and a sprain to the lower back and commented: ... This is consistent with the diagnosis of covered injury on this claim - Lumbar sprain. Mr Hadlow suggests a recovery time of 3 months given the background age related changes in the lumbar spine, which are contributing to delay in recovery. Currently it is more than 3 and half months since date of accident. Mr Hadlow suggests that the injury sustained on 13/8/15 has contributed to patient's incapacity and alludes to prior injuries dating back to 201 1 as well as age related changes. Ct has a longstanding history of intermittent low back pain since 2012, evidence of lumbar spondylosis (multilevel facet joint sclerosis (L3-4, L4-5, L5-S1) with some apparent synovial cyst formation on left (15/S1 level) contributing to left neuroforaminal narrowing with possible irritation on the exiting L5 nerve root. Diagnosis of on-going symptoms in Mr Hadlow's response is suggestive of left L5 nerve root irritation. The cause of the left LS nerve root irritation appears to be due to "small lumbosacral facet joint cyst in the foramen possibly affecting the existing L5 nerve root" (Mr Hadlow's report dt 4/11/15 and 24/1 1/15). Hence, there is no convincing evidence of causal link of on-going symptoms/incapacity as being substantially due to covered injury (lumbar sprain) [27] Also on 7 December 2015, a Branch Panel, including Dr DV Jones, General Practitioner, agreed that Mr Bush's incapacity was not now due to his covered lumbar sprain, but instead was due to an aggravation of pre-existing symptoms. [28] On the same date, the Corporation issued the decision at appeal, to decline to pay weekly compensation and suspend Mr Bush's entitlements. The Corporation advised: Unfortunately ACC must decline your current application as the need for this time off does not directly relate to your covered injury. You have cover for a lumbar sprain as a result of a fall on 13/08/2015. However it is evident that the need for the requested weekly compensation now relates to an unrelated medical condition. Specifically the request is for time off and treatment for a synovial cyst which you need to have surgically removed. As ACC can only provide entitlements where the condition is substantially caused by the covered condition from the accident, we are unable to assist. ACC is therefore unable to pay you weekly compensation or provide any other assistance. [29] For the purposes of the appeal, on 25 May 2017, Mr Bush was assessed by Dr Burling, Rheumatologist. Dr Burling diagnosed joint dysfunctions at T6-7, L4-5, L5-Sq and the right sacro-iliac, together with soft tissue injuries to rib attachments. He advised that he had "released the stuck joints", which resulted in immediate relief of symptoms. [30] Dr Burling's impression was that: .. he has a number of soft tissue injuries and joint dysfunction that could have come from a number of the injuries that he has sustained. The fact he was significantly improved following just the releases and injections to soft tissues says that this is unlikely to be pain from "degeneration", and far more likely to be pain from injury, which is highly treatable ... ... I do think his multiple injuries are explained by many of his accidents. Either the fall off the ladder or the fall over the beam of the hoist could be enough to cause the current list of injuries, and having both accidents means I cannot tell which is contributing more to which injury ... Most injuries do get better in six weeks, but those that do not can last a lifetime and that is regardless of the age of the person at the time receiving the injury. In an audit of patients at this clinic we have found that the timeframe from injury o initial consultation ranged between two months and 51 years, but the lady who waited 51 years was still able to be treated for her injuries and made pain- free I will see him again in six weeks both to follow up on the muscle component that may well be drug-related, and his response to the initial treatment. If he has responded well that will help to confirm that this is definitely not a degenerative process but rather an injury as the underlying cause, although we already have a significant indication of this from his marked improvement in pain from just the initial treatment at the clinic ... [31] Mr Bush returned to see Dr Burling on 24 July 2017 who advised that the joint dysfunction had improved, but further treatment would be delayed, pending his forthcoming shoulder surgery. [32] On 19 October 2017, Dr Burling provided a further report in response to a request from Mr Cadenhead. Dr Burling stated: Yes, I do think his accidents in 2015 were the major causes on a balance of probabilities for his injuries. The other major injury that was a significant contributor was the fall off a ladder in 2015. The bending over to pick up a spanner will have aggravated injuries that were caused from the heavy fall across the beam and from the injury under a horse-float. Those three injuries were his main injuries, and the others were by comparison minor and merely aggravants of those two major injury. Outside of those three injuries, the others were significantly less by comparison, and while they might contribute to a couple of his sustained injuries, they were by no means the main cause, and in their own right would not likely have caused a serious accident had he not already had these other injuries present from the major accidents in the first place. So yes, there are a total of three accidents that contribute to the majority of his injuries found on a balance of probabilities ... [33] On 28 February 2018, the Clinical Advisory Panel (CAP) provided a report on the claim. CAP reviewed each of the relevant covered claims and stated: 20 December 2010 lumbar sprain: there were no available medical notes on that claim. 18 June 2012 contusion to left hip and thigh, closed fracture of left ulna and radius: the 18 June 2012 consultation notes of Dr Lupton, General Practitioner detailed a thorough physical examination with no reference to lumbar symptoms. The CAP considered it was unlikely a serious acute lumbar injury had occurred in circumstances where no lumbar symptoms were clinically documented until 4 months after the event. 9 October 2012 lumbar sprain: (a) the claim was lodged on 7 November 2012 by Dr Gibberd, who reported the appellant's back symptoms had started on 6 June 2012 and he had a sore back after rolling out from a horse float on 9 October 2012. The CAP observed Dr Gibberd's physical examination findings were normal and she diagnosed "likely muscular back p b) there were no further GP consultations about back pain for 2.5 years, until 14 April 2015: (c) on 14 April 2015, Dr Prior recorded a history of back pain since a work accident 3 years ago (presumably on 18 June 2012) with flare-ups since then. The most recent flare-up occurred in the absence of trauma. (d) on 20 April 2015, the appellant's physiotherapist, Mr Larkin, sought funding from the respondent for treatment of the appellant's chronic low back pain. Mr Larkin attributed the appellant's chronic pain to the 9 October 2012 horse float event, and the respondent declined funding on the basis that absent evidence of a significant physical injury, persistent back pain more than 2 years post-injury is not likely causally related to the covered injury. 7 July 2015 left sided lumbar sprain: Dr Prior described the injury as a "twinge" in the appellant's lower back and down his left leg when stepping sideways, and several similar events were recorded around this time but not reported to the respondent. CAP also noted the 7 July 2015 x-ray findings and13 August 2015 lumbar sprain. CAP noted: The appellant did not mention the fall on 13 August 2015 when he consulted his GP and at that time, it was reported he had experienced ongoing back pain for 6 weeks without improvement. The CAP also advised Dr Gibberd's 17 August 2015 physical examination findings, which were normal, with no tenderness, normal range of motion and no motor or sensory neurological deficits, indicated it was unlikely the appellant sustained a significant acute injury to the lumbar spine when he fell from the ladder. [34] CAP concluded: ... that Mr Bush's history, physical examination findings, clinical reviews and imaging are all consistent with mechanical back pain on a background of lumbar spondylosis. We found no convincing evidence that Mr Bush's current presentation is related to an ACC-covered accident or a combination of accidents ... Mr Bush had ACC cover for lumbar sprains on 20/12/2010, 09/10/2012, 07/07/2015 and 13/08/2015. The CAP considers these diagnoses were appropriate, considering the relatively normal examination findings apart from initial tenderness, restricted motion and no neurological deficits, all consistent with soft tissue injuries. The CAP agrees with Mr Hadlow that these soft tissue injuries are clinically expected to resolve within a few weeks and may take a little longer in some people (but not as long as the 52 years suggested by Dr Burling). Long-term physical consequences are not expected. Based on the information provided, the CAP considers all these ACC-covered events are now spent. [35] CAP opined Mr Bush had mechanical back pain on a background of lumbar spondylosis, and was not likely caused by his covered injuries on 20 December 2010, 9 October 2012, 7 July 2015 or 13 August 2015. CAP explained: Mechanical back pain is a description for intermittent flare-ups of back pain, which has no known cause. The CAP noted the appellant's history of exacerbations of low back pain since 2010 is suggested of mechanical back pain rather than an external cause, such as injury: Spondylosis is a chronic, non-injury related condition. The appellant has multi-level disc dessication consistent with his age group, and the small annular tear at 14/5 is consistent with gradual changes Facet joint arthropathy is a natural process of deterioration and the lipping/bony spurs identified on the appellant's MRI are changes that take a long time to develop and are unrelated to trauma; and Mr Hadlow noted a synovial cyst at L5/S1 and these cysts are part of facet joint arthropathy. The CAP noted there was no evidence on the MRI of an acute cause, such as bleeding or swelling. [36] In response to Dr Burling's reports, CAP advised: Although it is acknowledged manual treatments to relieve pain is a promising area for further research, so far, the long term success of treatments of the kind performed by Dr Burling seems to be no better than sham treatment. The CAP noted there was no proof in spinal literature that Dr Burling's treatments will have long-term beneficial effect Dr Burling's impression that the appellant's symptom improvement after one treatment proved traumatic causation, was speculative at best. The CAP noted pain is not a reliable measure of success, as the placebo effect means patients will report improvement 60-80% of the time, regardless of the nature of the "treatment" administered and In its opinion, the success or lack of success of treatment does not prove the cause of low back pain. Ultimately, the appellant's condition is mechanical back pain with no known cause, which is common and often occurs for no apparent reason. [37] On 21 March 2018, Dr Burling reported in response to the CAP report: [i] He was critical of the CAP's opinion; [ii] He agreed with CAP's explanation of lumbar spondylosis, intervertebral disc dessication, degenerative changes in the annulus, facet joint arthropathy and synovial cysts. Dr Burling also stated that those changes "were almost certainly there in the patient prior to his first injury dated 23 December 2010", and that he is aware of orthopaedic literature that shows degenerative changes can be accelerated post-injury; [iii] He opined that mechanical back pain was a symptom, not a diagnosis. He stated chronic mechanical back pain only occurs following injury and is not caused by degenerative changes; [iv] He advised manipulative therapies have a 30% success rate over sham treatments; and [v] The proper diagnosis is lumbar spondylolisthesis, rather than mechanical back pain. Submissions of the parties [38] The appellant submits that: a. A full investigation of all covered lower back injuries needed to be carried out by the Corporation to establish that if one, or a combination of the same, was contributing on a concurrent causation basis to Mr Bush's ongoing back difficulties. This has not been carried out. b. In order to investigate this matter to an inquisitorial level, an opinion should have been obtained by a specialist who deals with soft tissue injuries. Hence, the Corporation could not be in a position of certainty. C. If it is found that there is a non-compensational cause, which is denied, in order to sever any causal link it must be a substantial cause for the difficulties. d. The branch medical advisor cannot shelter behind the folklore that certain soft tissue injuries resolve themselves within set periods of time. e. The Corporation could not be in a position of certainty because it does not appear that the medical assessors have considered whether this is a situation of concurrent causation and the application of the indivisibility principle applies. That is, if it is found there is a non-compensatable cause active with respect to Mr Bush's ongoing lower back problems, the legislation has contemplated that there may also be a compensatable cause. As long as the noncompensatable cause is not the substantive cause (something approaching the whole), with respect to Mr Bush's back difficulties then a situation of concurrent causation exists and the principle of indivisibility applies, which yields up ongoing entitlements in the affirmative for Mr Bush. E. There was simply no certainty available to allow the Corporation to press into operation section 117. g. In the alternative, if the Corporation reaches the Ellwood threshold, there is more than enough evidence on the balance of probabilities basis that Mr Bush's ongoing back difficulties have been caused or contributed to by one or more of his covered injuries. [39] The Corporation submits: a. That by 10 October 2016, the evidence was sufficiently clear in Ellwood terms for the respondent to be satisfied that Mr Bush had no ongoing right to receive entitlements, including weekly compensation (in respect of his covered lumbar sprain sustained on 13 August 2015, or any other covered lumbar sprain injuries). b. The weight of the evidence before the Court supports the respondent's decision that on the balance of probabilities, the appellant's ongoing symptoms and incapacity is wholly or substantially caused by longstanding pre-existing degenerative changes (specifically, lumbar spondylosis and facet joint arthropathy) which were merely aggravated by, rather than caused by, his covered 13 August 2015 lumbar sprain injury. C. In respect of Mr Bush's inquisitorial obligations submission, there is no such inquisitorial obligation on the Corporation d. The Corporation has relied on medical evidence of qualified experts to reach its decision, not folklore as stated in the opinion of Mr Bush's Counsel. Dr Burling has provided evidence as to a possibility of causation. On the other hand, the CAP reviewed each of Mr Bush's relevant covered claims and concluded there was no convincing evidence that his condition was related to a covered injury. The power to suspend entitlements [40] The power for the Corporation to suspend entitlements to claimants is set out in s 117(1) of the Accident Compensation Act 2001 which provides: 117 Corporation may suspend, cancel, or decline entitlements (1) 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. [41] It is well established, pursuant to the decision of Mallon J in Ellwood v Accident Compensation Corporation' that before the entitlements of a claimant can be suspended the Corporation must show that it had a sufficient basis on which entitlements should be suspended, with her Honour noting in particular: The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence ... if there is an insufficient basis [2007] NZAR 205, 28 September 2017. then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage.2 [42] As a result, before the medical evidence adduced by both parties after the Corporation's decision can be considered, this Court must first be satisfied that the Corporation had a sufficient basis to be not satisfied that Mr Bush had a right to continue to receive entitlements at the time the decision to suspend was made. Only if this can be established does the Court then consider whether there remains a sufficient basis to be not satisfied having regard to all the evidence now before the Court. [43] With regard to what is required for the Corporation to be satisfied a claimant remains entitled to an entitlement, the starting point is clearly s 67 of the Act which provides: 67 Who is entitled to entitlements A claimant who has suffered a personal injury is entitled to 1 or more entitlements if he or she- (a) has cover for the personal injury; and (b) is eligible under this Act for the entitlement or entitlements in respect of the personal injury. [44] As a result, the correct approach in determining whether a claimant is no longer entitled to an entitlement or entitlements is to consider whether the two components of s 67 continue to be satisfied. In other words, entitlements can only be suspended under s 117(1) if either of the two requirements in s 67 are not, or are no longer, met. [45] With regard to the requirement under s 67(a), this is most often manifested when the covered injury is recorded as a sprain or a strain and the entitlement sought is for a more specific injury such as a rotator cuff tear or lumbar disc prolapse. In such situations a causal inquiry is necessary to determine whether the tear or prolapse was indeed related to the injury for which cover was granted or whether the injury for which the entitlement is required occurred independently of the covered injury. Likewise, it is well established that a claimant cannot rely upon a non-covered injury 2 At [64]. to support a claim for entitlements, and in the absence of cover no entitlements can therefore flow.3 [46] In contrast, where there is no dispute over the extent of cover the question becomes whether the claimant is still eligible for a particular entitlement or entitlements pursuant to s 67(b). If the covered injury has resolved the claimant will for example no longer be eligible for weekly compensation as he or she is "no longer unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury" pursuant to s 103(2) of the Act. The Issues [47] The issues to be determined are: i] Was the suspension decision correct at the time it was issued? [if] Is the suspension decision correct in light of all of the information now before the Court? Was the suspension decision correct at the time it was issued? 48] At the outset, Mr Cadenhead and Mr Sumner agreed, notwithstanding ambiguous wording in the decision of 7 December 2015, there was no misunderstanding the decision was to decline the application for weekly compensation and suspend all entitlements. This matter was also resolved at review, that the effect of the decision was to suspend entitlements. [49] The agreed factual background shows conflicting medical evidence as at the date of suspension of entitlements and the decline of weekly compensation. [50] First, as at 22 September 2015, the Corporation had received a medical certificate indicating weekly compensation was no longer required because Mr Bush could return to work on light duties. On this basis, weekly compensation ceased. See in particular Medwed v Accident Compensation Corporation [2009] NZACC 87 at [13] and [26]; and the decision of Judge Powell (as he then was) in Newton v Accident Compensation [51] Secondly, on 23 September 2015, Mr Hadlow opined Mr Bush should remain off work due to the ongoing effects of the covered injury. Following the October 2015 MRI findings, Mr Hadlow certified Mr Bush fully unfit for work from 4 November to 16 December and diagnosed a disc injury with left sciatica. [52] Thirdly, the Occupational Medical Specialist, Dr Dara, upon file review, noted no convincing evidence of disc injury arising from the accident of 13 August 2015 or any other prior covered injury. She then sought clarification from Mr Hadlow whose advice was the effects of the covered August 2015 injury were still in play, together with age related changes. [53] Dr Dara noted Mr Hadlow's response and referred the matter to Dr Jones for Panel review, whose recommendation was: $ 117(1) applies: issue a decision letter informing client that he has cover for a back sprain and the current condition being treated is for removal of synovial cyst fluid which is a non-covered condition. Condition causing incapacity and need for current treatment is non-substantially related to covered condition. [54] It is clear Dr Jones focussed first and foremost on the need for surgery applications. In considering whether the effects of the covered injury were still in play, the comments of Mr Hadlow and Dr Dara that the soft tissue bruising and sprain were consistent with the covered injury and the contribution to incapacity were noted and ignored before the suspension decision. There was also no adequate consideration given to the previous covered injuries, which were noted by Dr Dara. [55] Mr Cadenhead submitted the Corporation failed to discharge its inquisitorial role pursuant to Ambros. Mr Cadenhead is right the inquisitorial role relates not only to the question of causation but to all aspects of a claim as noted by the Court of Appeal: [64] An important factor that favours the Supreme Court of Canada's approach applying in that context is the essentially inquisitorial role of the Corporation, both when an initial claim is made and in the review function - see Medical Law in New Zealand at [24.12]. The inquisitorial approach should generally Corporation [2015] NZACC 22 at [24] and [25]. Accident Compensation Corporation v Ambros [2008] 1 NZLR 340 (CA). mean that, to the extent this is practical, all aspects of the claim (including causation) have been investigated by the Corporation before matters reach the courts. If that occurs, the situation in Cochrane v Accident Compensation Corporation [2005] NZAR 193 (HC) would be avoided. In that case, the medical evidence at the review stages had not been directed to the legal test of causation. As a consequence, a rehearing was ordered in the District Court. That may unfortunately also be the result in this case ... In our view, it is in keeping with the non-adversarial nature of the claim and review process that the Corporation should investigate all possible aspects of a claim, at least in a rudimentary fashion and as far as practicable. It would thus be in a position, once the matter comes before a court, to lead evidence on all points that were investigated, whether strictly obliged to or not. [56] In my opinion, the evidence of the treating Orthopaedic Surgeon is clear that the covered injury was not spent, notwithstanding the presence of age related changes. [57] In those circumstances, I conclude the Corporation did not have a sufficient basis to be not satisfied that Mr Bush could no longer be entitled to his entitlements. It follows the suspension decision was not correct at the time it was issued. Is the suspension decision correct in light of all of the information now before the court? [58] Since the suspension decision issued, the focus shifted to all of Mr Bush's covered injuries. The principal evidence comes from the reports of Dr Burling and the full CAP almost two years after the suspension. [59] I accept Mr Sumner's submission that Dr Burling's first report on the face of it indicates uncertainty as to the source of the soft tissue injuries. However, Dr Burling then clarified the cumulative and ongoing effects of the soft tissue injuries were those arising from the October 2012 and the two 2015 accidents which he said were not spent. [60] The contest between Dr Burling and CAP related to Mr Bush's ongoing lumbar pain symptoms and whether they were the result of his covered lumbar sprain injuries. Dr Burling opined the concurrent degeneration changes were not the source of pain. CAP countered that Mr Bush's history, physical examination findings, clinical reviews and imaging are all consistent with mechanical back pain on a background of lumbar spondylosis. CAP considered Mr Bush's symptoms were unrelated to a single or combination of accidents, and the covered injuries were now spent. I observe CAP appeared to suggest Mr Bush's sustained a work related gradual process injury given his work "as a mechanic with prolonged heavy lifting and forceful movements was strongly associated with mechanical low back pain". [61] Dr Burling agreed with CAP's explanation of lumbar spondylosis, intervertebral disc desiccation, degenerative changes to the annulus, facet joint arthropathy and synovial cysts. He also agreed the degenerative changes "were almost certainly there in the patient prior to his first injury dated 23 December 2010", and the proper diagnosis is lumbar spondylosis, rather than mechanical back pain as mechanical back pain was a symptom not a diagnosis. [62] What is to be made of the evidence of Dr Burling and CAP in determining the second issue. [63] I accept Mr Sumner's submission that when all is said and done, Mr Burling's contest of opinion with CAP is not a clash. Rather, from his discipline and expertise as a rheumatologist, Dr Burling considers the aetiology of soft tissue injuries and applies this discipline to consider the issues, quite differently from the reasoning of an orthopaedic surgeon, and of CAP in this case. I find Dr Burling's reports are thorough and candid and in consequence persuasive that the covered soft tissue injuries in October 2012 and 2015 continued, alongside the underlying degenerative changes. 64] In my opinion two features of the evidence stand out. First, the covered lumbar sprain injuries are spent as at 24 July 2017 following Dr Burling's treatment. Dr Burling stated so in his report on 21 March 2018 that: It was clear when I last saw Mr Bush on 24 July 2017 that the injuries we had treated were no longer sources of pain for him. [65] Secondly, there is strong evidence of lumbar spondylosis agreed both by CAP and Dr Burling. Following his successful treatment, Dr Burling noted that the degenerative changes continued. [66] As a result, when the suspension decision is considered in the light of all the evidence before the Court, I find the situation remained as it did as at the date of the suspension decision. It is also clear from Dr Burling's evidence that the soft tissue injuries were spent as at July 2017. Result [67] Accordingly, the appeal is allowed. The Corporation's decision of 7 December 2015 is set aside, and the review decision of 1 July 2016 is quashed. Entitlements are to be restored to Mr Bush to the date of 24 July 2017. [68] Mr Bush is entitled to reasonable costs which I am confident the parties can agree. Jenese ferove Judge Denese Henare District Court Judge Solicitors: Ford Sumner, Wellington for the respondent