Te Puna v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 1 17 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN TREVOR STEVEN ROBERT TE PUNA DCA 259/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of March 1999 APPEARANCES: Mr A Cadenhead counsel for appellant Mr C Richards and Mr A Barnett counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cease payment of weekly compensation to the appellant on the grounds that his present incapacity was 2 not connected with the personal injury by accident for which he had been granted cover. BACKGROUND In February 1993 the appellant, then aged 29 years, lodged a claim for cover with the respondent in respect of a back injury said to have been suffered on 2 February 1993, at his place of employment at Taylor Preston Meat Works. The circumstances of his injury were that he suffered a twisting injury to his lower back whilst lifting a 40 kilogram box of meat from a low bench. He said he felt something give in his back and he subsequently developed increasing pain such that he had to go off work on the following day and has been off work ever since. He consulted his GP, Dr Thomson, on 4 February 1993 who diagnosed L4-5-S1 facet joint sprain (rotating injury). The appellant commenced receiving weekly compensation because of his inability to work and he commenced a course of physiotherapy. In March 1993 he developed severe muscular spasm and his GP placed him on a course of muscle relaxants and anti-inflammatories. His pain and discomfort from his back continued and in June 1993 his GP referred him to Mr Rob Kusel, Orthopaedic Surgeon, with a view to ascertaining precisely what his ongoing problem was. Mr Kusel examined the appellant on 17 June 1993 and reported to Dr Thomson noting that the appellant's main problem was continued mechanical low back pain aggravated by activity. Mr Kusel had taken x-rays which he indicated showed a mild reduction of the lumbo-sacral discs space but otherwise a well preserved lumbar spine. Mr Kusel said that he suspected that the appellant has had lumbar disc prolapse 3 producing his mechanical low back pain and he suggested reference to a Dr Grenfell for consideration of an epidural steroid injection. It seems that the appellant remained on weekly compensation and underwent various types of treatment including chiropractic but the evidence seems to make it clear that he has continued to suffer from back pain which has been sufficiently debilitating to prevent him from resuming employment down to the date of the hearing of the review in June 1997. In December 1995 the respondent sought a report on the appellant from Mr D J Jones, Orthopaedic Surgeon. Mr Jones examined him and ascertained the nature of his pain in the lower back and sought to have a multi level CT scan to assist with diagnosis. The CT scan was carried out on 16 April 1996 and as a consequence of the report of that scan Mr Jones advised the respondent that "In the absence of any major structural change consistent with injury I believe this man's ongoing incapacity is related to changes in his lumbar spine rather than the injury sustained in February 1993." On the basis of Mr Jones' reports the respondent advised the appellant by letter of 17 July 1996 that his weekly compensation would cease because of the advice it had received that his ongoing incapacity was related to changes in his lumbar spine rather than the injury sustained on 2 February 1993. The appellant filed an application for review of that decision and a review hearing took place on 17 July 1996. For the purposes of that review hearing the appellant, through his counsel Mr Cadenhead, submitted a report from Dr H C Burry, Rhuematologist, dated 1 April 1997. The Review Officer also had the earlier 1993 report of Mr Kusel and he took the view that Mr Jones' conclusion was consistent with the earlier findings of Mr Kusel. Insofar as Dr Burry's report was concerned, the Review Officer noted that in the appellant's history as ascertained by Dr Burry he was of the belief that the appellant had had no back problems prior to this incident in 4 February 1993 whereas information had come to hand that the appellant had in fact had two earlier claims for compensation for back injuries in August and December 1987 respectively. In addition, the Review Officer noted Dr Thomson's advice that at the time the appellant injured his back at work he was wearing a weight lifting belt to protect his back and he inferred from this that appellant's back must have been suspect at that time. The Review Officer took the view that the evidence was consistent with the appellant's incapacity being a natural progression of underlying changes to his back and not attributable to the incident of February 1993. He therefore upheld the Corporation's decision to cease payment of weekly compensation. The appellant has now appealed that decision to this Court and for the purposes of this appeal leave was granted to the appellant to introduce further evidence being a report of Dr Paul Trolove, Rheumatologist, dated 24 November 1998. The question of incapacity is not an issue in this appeal and the sole question is whether there is a causal link between the appellant's present condition and the personal injury for which he was granted cover. That is essentially a medical question and as this Court has noted on many prior occasions the Court must assess the medical evidence that has been adduced and that evidence must be determinative of its decision. MEDICAL EVIDENCE The Court has earlier noted the diagnosis advised by Dr Thomson when the appellant's claim for cover was lodged. Various medical certificates lodged by Dr Thomson certifying the appellant as being unfit for work simply recited "No improvement". Sometime in 1994 the appellant had a change of GP to Dr Sharron Flahive and she began noting " continued back pain, no progress" and was certifying blocks of 13 weeks of unfitness for work under that heading. In early 1995 the appellant moved to Christchurch and there consulted Dr David Richards and in a report dated November 1995 to the respondent Dr Richards said that he had seen him on three occasions in 1995 and that his diagnosis was still continuing low back pain and that this was keeping him awake at night. He continued to have restricted ability to bend, lift or sit for any length of time. In June 1993 Dr Thomson referred the appellant to Mr Robert Kusel, Orthopaedic Surgeon, and Mr Kusel reported to Dr Thomson on 17 June as follows: "Thank you for your letter regarding this twenty-nine year old Meat processor at Taylor Preston who presents with continued mechanical low back pain after a twisting injury to his low back whilst lifting a forty kilogram box of meat from a low bench at work. He felt something give in his back, had no leg pain at that stage but subsequently developed increasing pain such that he had to go off work on the 03.03.93 and has been off work since. He subsequently developed an episode of right sided sciatica which appears to be in the LS nerve root distribution, about six weeks ago lasting for two weeks, but this has settled and he has had an infrequent twinge in the posterior thigh since. His main problem is continued mechanical low back pain aggravated by activity. He has had no previous back problems and is otherwise fit and well. 6 Chiropractic manipulation was of no significant benefit, physiotherapy has made him a little more supple, analgesics do help reduce the pain to a moderate degree. On examination he is in no acute distress, walks comfortably, heel and toe walking is satisfactory, forward flexion however is limited-finger tips just to the knees with markedly stiff low back. His straight leg raising is to 85 degrees bilaterally with no signs of nerve root irritation or compression with normal reflexes, power and sensation, femoral stretch also negative. Maximum tenderness over the lumbo-sacral junction. Review of X-rays taken on 23.03.93 show mild reduction of the lumbo-sacral disc space but otherwise a well preserved lumbar spine. I suspect he has had lumbar disc prolapse producing his mechanical low back pain and an episode of sciatica which has since resolved. I have suggested he see Dr Richard Grenfell for consideration of an epidural steroid and will write to him in this regard." In December 1995 the appellant was referred to Mr Donald Jones, Orthopaedic Surgeon, and Mr Jones prepared a first report dated 11 December 1995 and his report is set out as follows: "Diagnosis: Persistent mechanical lumbo-sacral back pain, cervical pain. Date of Injury: and February 1993 History: This 32 year old male stated that he was lifting boxes of meat, weighing between 20 and 40 kilograms, when he developed an acute episode of pain in his low back. He had been working in the freezing industry for the previous six months. He claims to have been subsequently seen by a general practitioner, referred to a specialist at the Boulcott Clinic and subsequently underwent chiropractic treatment. He claimed that at that stage he was experiencing pain in his low back, his right leg and cervical pain. X-rays apparently had been taken at the Boulcott Clinic. He had a series of treatments which made little impact on his symptoms, there does not appear to have been any further investigation of his back, he does not appear to have had any comprehensive assessment or retraining over the interval. He apparently came to the Christchurch area in January 1995. He continues to experience what he describes as a sharp pain felt in his low back and sometimes in his neck. The pain alternates between his back and his neck and sometimes radiates into his right leg, sometimes down into his left buttocks. He claims that he cannot sit for long, he is uncomfortable in bed, he claims that getting out of bed is very difficult, standing he is in constant pain, he claims that no treatment has helped him. In the past he has worked in security jobs, both commercial and personal. He claims to have been in the Army a number of years ago. He presents as a pleasant tall Maori, he indicates that his mid to lower lumbar spine is the site of discomfort. He stands with a moderate lumbar lordosis which fails to unfold on forward flexion, he is able to flex only to his upper tibia, he has mild hamstring tightness. Neurological examination of his lower legs is normal. X-rays St George's Hospital lumbo-sacral spine 4th December 1995 show a mild lumbar scoliosis concave to the right, there is possible a mild asymmetry of the lumbo-sacral facets. Opinion: This man developed what appeared to have been a simple acute episode of mechanical back pain on and February 1993, but for some reason which is not apparent clinically his pain persists and he has not returned to the workforce. An injury to the lumbar spine would not give rise to pain in the neck region. Examination of his neck was completely unrevealing. This man has a minor developmental anomaly of his lumbar spine, I do not believe that he has had a major structural injury, however the quickest way to determine whether there was a problem within the spinal canal would be to proceed with a multi level Ct scan greater than 25 slices. If the scan was normal I would not have considered that he would be the ongoing responsibility of the ACC." This report was followed by a second report of 22 April 1996 when the results of the CT scan were known and it stated as follows: "Further to my report of 1Ith December 1995, the Ct scan on this man's lumbar spine was performed at St George's Hospital on 16th April 1996. Enclosed is the radiological report provided by David Ross. I have reviewed these x-rays in conjunction with his plain films an my interpretation of the appearance of the annulus or disc at the 4-5 level was 9 early bulging of the annulus as a result of minor narrowing occurring at the 4- 5 level. I do not believe that this represents a central disc prolapse. The most striking feature on the CT scan was the irregularity and the narrowing of the articular cartilage at the lumbo-sacral facts suggesting that early arthritic change was developing in the facets at this level. I believe this is the end result of the slightly abnormal structure in his low back, rather than specifically the end result of accident as such." In a letter from the respondent to Mr Jones of 21 May 1996 the respondent requested advice as to whether the appellant's current incapacity was related to the changes in his lumbar spine or the injuries suffered on 2 February 1993. Mr Jones responded to that letter as follows: " In reply to your letter of 21st May 1996, in the absence of any major structural change consistent with injury I believe this man's ongoing incapacity is related to changes in his lumbar spine rather than the injury sustained in February 1993." Mr Jones made a further follow up letter again dated 4 June in response to an inquiry from the respondent's regional office, that letter stated as follows: "In reply to your letter of 28th May 1996, I have written to Helen Noble regarding the above today and I have indicated that I believe that this man's ongoing incapacity is related to the changes in the structure of his low back rather than the end result of injury. 10 The CT scan did not confirm a lateral lumbo-sacral disc prolapse or an L4-5 disc prolapse which would have accounted for his sciatic symptoms. As I indicated in my initial report, I do not believe this man's ongoing incapacity is the responsibility of the ACC." The final two reports are those sought by the appellant's counsel, the first being that of Professor Burry. Professor Burry notes that the appellant's previous history contains no episodes of back problems and after his examination he advised: "Mr Te Puna suffered an abrupt onset of low back pain in 1993 and still experiences some symptoms in his lower lumbar region related to this event. The nature of the onset of his pain and the location of his symptoms, together with the activity being carried out at the time strongly suggest that he suffered a failure of soft tissue in the lower lumbar region which may have been a rupture of an intervertebral disc or a tear of ligamentous or muscular structure, precise definition of the cause of the pain in this type of case being usually impossible. It is somewhat surprising that he has not been able to return to full fitness after this accident, but the widespread nature of his current symptoms, including neck and shoulders, makes it likely that his symptoms have been added to by the muscular tension associated with frustration in his inability to return to paid employment. Persistent low back pain could be partly attributable to the discrepancy in leg length which may cause muscle strain, but the major physical problem currently is the poor range of movement in his lumbar spine which could be improved by mobilising exercises. A small raise to the right heel could also be useful. It does not seem to be in doubt that Mr Te Puna's problems have arisen from his 1993 accident. There is no indication that he suffered from back pain prior to this time and his physical and vocational dysfunction have all followed that event. I could not quite understand Mr Jones' interpretation of 11 the x-rays and CT scan, but, in any case, I do not feel that the features described have particular relevance to the diagnosis of Mr Te Puna's condition. It is clear that Mr Te Puna did suffer some injury to the tissues of his lower lumbar spine and supporting structures and that his difficulties have arisen from that incident. It is possible that leg length inequality may be contributing to perseverance of his back pain, but my impression is that his major problem currently is related to the stiffness of his lumbar spine together with the muscle tension that accompanies his feelings of frustration. What is needed is a vocational rehabilitation programme to enable him to achieve financial independence. Adventure tourism seems to be a reasonable option provided that he can stand up to the physical stresses and to that end he needs to carry out a regular programme of back mobility exercises to improve his spinal function." Finally there is the report of Dr Paul Trolove, Rheumatologist, dated 24 November 1998 who examined the appellant on that day and had the benefit of the reports of Professor Burry, Mr Jones and Mr Kusel and his report states, inter alia: "In spite of the extensive CT scan and X-rays, I do not think they offer anything to the elucidation of the present pain. In my view he suffered a soft tissue injury at the time of the initial event on 02.02.93. From his story, he had never suffered previous back pain, and was in fact accepted for and involved in the army until he left for other reasons. That would imply a good level of physical fitness. As often happens, soft tissue injuries noted in the low back can then spread to a more diffuse muscle pain also related to the frustration caused by the disability and various losses suffered because of the disability. This reflects a chronic pain syndrome. Mr Te Puna demonstrates this by the more diffuse involvement more superiorly in the spine level." IISSIO 12 Mr Cadenhead, counsel for the appellant, submitted that the Review Officer had taken a somewhat one dimensional approach to the appellant's back problem and had relied entirely on the orthopaedic evidence of Mr Jones that there was nothing in the x-rays or the CT Scan which could be attributed to the appellant's ongoing back injury. He submitted that the initial diagnosis of facet joint strain (rotating injury) implied amongst other things a soft tissue injury, a strain in the facet joints and he submitted that it was more likely that a soft tissue injury would occur prior to an injury to orthopaedic structures from an acute event. Counsel submitted that the fact of the appellant having had two earlier claims in relation to his back ought not to have been given the prominence it had as both were very minor claims and had occurred some considerable years before the time that this present claim was before the Review Officer. He also submitted that there should not be significance drawn from the fact that the appellant was protecting his back with a weight lifting belt at the time of his injury. He submitted that it was common for weight belts to be worn as a form of prevention rather than to protect an existing injury. Counsel submitted that the appellant suffered and is still suffering from a soft tissue injury and that his ongoing difficulties may be resulting from both ongoing change and the soft tissue injury, the two running parallel. He submitted that Mr Jones was really only able to consider the matter from an orthopaedic view point rather than from a musculoskeletal position and that his conclusion did not necessarily cover the whole range of possibilities. Mr Richards, counsel for the respondent, submitted that it must be remembered that Professor Burry examined the appellant some four years after the accident event and he noted that Professor Burry was diagnosing a soft tissue injury and expressed surprise that it had not resolved. Counsel further submitted that both Professor Burry and Mr Trolove relied heavily on the appellant's account of events and that in the light of statements about his history not being accurate and also of the fact that the 13 appellant had been wrongfully claiming a sickness benefit at the same time as his weekly compensation, his evidence could not be relied upon. Counsel submitted that there was no evidence that the appellant was suffering from a soft tissue injury at the time the decision to cancel was made. DECISION Counsel for the appellant was at pains to point out that the evidence of Mr Jones was reliant on imaging techniques of x-rays and CT scan and that this was a somewhat one dimensional view of what might be a more complicated problem. It is to be noted that Mr Kusel who examined the appellant in June 1993 had the benefit of x-rays taken on the 23 March 1993, that is a month or so after the date of the twisting injury. Mr Kusel noted that the x-rays showed a mild reduction of the lumbo-sacral disc space but otherwise a well preserved lumbar spine. Mr Kusel suspected that the appellant had had lumbar disc prolapse which produced his mechanical low back pain. I find from that statement that Mr Kusel had identified a likely cause as being lumbar disc prolapse but that this had resolved by the time of the x-rays as there was nothing in the x-rays which would indicate a disc prolapse by the date that those x-rays were taken. It is to be remembered of course that the appellant had been undergoing a concentrated course of physiotherapy for his injury since the date of that injury. The next x-rays were those commissioned by Mr Jones in April 1996 and he similarly identified a mild narrowing at the L4/5 level, this was consistent with the finding of Mr Kusel three years earlier. Mr Jones did not consider that this minor narrowing represented a disc prolapse but he did notice early evidence of arthritic change at the facet joints. This was not something which had been evident three years earlier. The clear message from Mr Jones and Mr Kusel is that there was nothing in the structure of the appellant's back as identified by x-ray or scan which could have been a cause of 14 his low back pain. Certainly neither specialist identified anything in those imaging reports which would be attributable to the twisting injury that the appellant described. I find that this is significant in that it clearly eliminates any cause of low back pain as being attributable to the appellant's back structure caused by the accident. Mr Jones indicates that it is his view that the appellant's ongoing incapacity is related to the changes in the structure of his low back and he has said that those changes in the structure of his low back are not the result of injury. It is to be noted that Professor Burry and Mr Trolove had the reports of Mr Kusel and Mr Jones and would have been aware of their assessments of the x-rays and CT scan, they both referred to them in their reports. I take it that they have then considered the matter from the point of view of their particular discipline of Rheumatology and each has come to the view that the appellant suffered a soft tissue injury at the time of the initial event. Professor Burry notes that precise definition of the cause of the pain in this type of case is usually impossible. If one considers the examinations conducted by Mr Kusel and Mr Jones, both found that the appellant did suffer from lower back pain and from his examination Mr Jones also accepts that at the time he examined him he was suffering from low back pain. Thus, the pain was there three months after the accident and Mr Kusel could find nothing from an orthopaedic perspective or by reference to x-rays. Three years later Mr Jones similarly could find nothing from an orthopaedic perspective but yet the low back pain was still present. Mr Jones sought to give a reason for it but he was looking at it from the perspective of the imaging techniques which he had commissioned and I note in his report of 11 December 1995 he did not have reference to the x-rays taken by Mr Kusel, those were the x-rays taken at the Boulcott Clinic. It would seem that he did not have reference to Mr Kusel's report at all. 15 It is to be noted in Professor Burry's report that he considers that the appellant's injury to the tissues of his low lumbar spine and supporting structures may have had their effect prolonged by the fact that the appellant has unequal leg length and that this may be contributing to the perseverance of his back pain. It is axiomatic that in considerations of entitlement to compensation the victim must be taken as he is found and it seems to be that his uneven leg length is a contributing factor to the continuation of the effects of his lumbar strain. I note that Professor Burry identifies that a small raise to the right heel could be useful in alleviating that problem. Mr Cadenhead referred to the decisions of this Court in Bell (266/97), Herrick(190/98) where this Court has been called upon to adjudicate between the conflicting opinions of orthopaedic surgeons and rheumatalogists on the cause and effects of ongoing back pain. I have previously indicated that the onus on the appellant is simply to establish that he is presently suffering from injury arising from accident and that it is not necessary that the appellant be able to determine or label the precise nature of that injury providing that the effects of it can be seen and are manifest. This I find is relevant to the present case. Whilst respecting the opinions of the orthopaedic surgeons I find that if they are logically analysed in relation to the opinions of the rheumatologist then it is evident that there is more than one explanation possible for the cause and continuance of the appellant's low back pain. Whilst the orthopaedic surgeons have eliminated possible causes within their particular expertise, and even though they may proffer a possible explanation such as Mr Jones has done in this case when he believes that the appellant's ongoing incapacity is related to the changes in the structure of his low back rather than the end result of injury, I take that as being a possibility and no more. It is certainly not proffered as the certain diagnosis of the cause of the appellant's continuing back pain 16 and therefore the opinions of the rheumatologist must be considered entirely reasonable in the circumstances. The onus on the appellant is that of establishing his proposition on the balance of probabilities and I find that when the question which this Court is required to answer is looked at in the round, the appellant has discharged that onus, and that as at the time of the review decision the appellant was still suffering to an incapacitating degree the effects of his personal injury by accident suffered on the 2nd February 1993. For the foregoing reasons therefore, the decision of the respondent is revoked and the appellant is entitled to have the benefits of cover reinstated. The appellant is entitled to costs which I fix at $800.00 together with the costs of the medical report of Mr Trolove. DATED at WELLINGTON this 11th day of May 1999 heath M J Beattie District Court Judge Te Puna.doc(gm)