Tui Milk Products v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 1 8 /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 TUI MILK PRODUCTS LIMITED of Palmerston North Appellant (Appeal No. DCA 13/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of September 1994 Judge A W Middleton D H Gray, Orthopaedic Surgeon - Medical Assessor A A MacDiarmid, Orthopaedic Surgeon - Medical Assessor APPEARANCES N Cronin for appellant L Dall for respondent 2 DECISION OF JUDGE A W MIDDLETON This appeal originally came before me at Palmerston North on 1 June 1994 when it became necessary to adjourn the hearing to enable medical assessors to be appointed in accordance with s.93 of the Accident Rehabilitation and Compensation Insurance Act 1992. The issue in the appeal is whether the appellant's employee, Mr Hooper, suffered a work injury when he twisted his back while at work on 27 November 1992. It is accepted that the appellant had suffered a major injury to his back in his employment in 1975 and that he had had episodes of problems with it since that time. The incident which gives rise to this appeal occurred on 27 November 1992 when he was bending over some pipes using a spanner to loosen a tight nut and he developed acute low back pain. The respondent accepted that the appellant personally had cover under the Act. However, on 30 April 1993 the respondent notified the appellant that it considered the incident constituted a work injury which would remain on the appellant's claim history. The appellant replied to the respondent that it considered the injury to be an aggravation of Mr Hooper's pre- existing back injury and not a new injury. The issue went to review and the Review Officer confirmed the Corporation's primary decision. When the claim was lodged the respondent sought details from the appellant's General Practitioner, Dr Fulton, who replied on 7 November 1993: "1. Diagnosis Acute lumbar strain. 2. Cause of Injury. Mr Hooper injured his back when he was bending over some pipes at work using a spanner on rather tight nut and when applying force with the spanner he developed a sudden acute low back pain. He was seen initially at the Accident and Emergency Dept of the Palmerston North Public Hospital and was put off work for ten days initially. Since then he has been resting and having physiotherapy but progress in healing has been particularly slow and I therefore am in in the process of referring him to an orthopaedic specialist. 3. History of any previous back pain. Mr Hooper gives a history that in 1976 when he was working at the butter factory he injured his back when heavy butter boxes slipped on a conveyor belt and twisted him across the belt. He was treated at Palmerston North Public Hospital as an inpatient for some two weeks he said." Mr Hooper was referred to Mr E W Jamieson an Orthopaedic Surgeon who reported to Dr Fulton on 26 January 1993: "He gives a history of sudden and severe pain in his back on 27 November last, while working at the Dairy Company. He was bending and leaning forward, using a 3 spanner on a nut when this occurred. He fell down and had great difficulty getting up. He was helped to his feet and taken by ambulance to Palmerston North Hospital. He describes loss of feeling in the left foot. He was apparently offered hospital admission or rest at home, and elected to do this, although with considerable difficulty. By now, improvement has occurred and he is able to walk about and sit for a short time. He does experience intermittent loss of control of his left leg. He had a similar episode in 1976 and was treated in Palmerston North Hospital, with bedrest and a brace. Symptoms improved to the point where he was able to go back to work, managing quite heavy work from 1976 until now. On examination today he walked slowly and cautiously, and sits carefully, with a straight back. There is limited movement in the lumbar spine. He has a good range of extension. Forward flexion is quite limited so the fingertips reach knee level only, and there is little inter-spinous movement. He has a slight tilt to the left. Right and left lateral flexion are very limited. Straightleg raise is 45 degrees on the right, and 35 degrees on the left, with positive sciatic stretch test bilaterally. The left ankle jerk is absent. Both knee jerks and right ankle jerk are present. Sensation in both legs is normal today. There is slight weakness of extension of the left great toe. He describes intermittent loss of feeling over the left S1 dermatome, i.e. sole of the left foot. X-rays of the lumbar spine (PNH 27.11.92) show degenerative changes, particularly at lumbo-sacral and L4/5 level. Clinically he has a left sided lumbo-sacral intervertebral disc prolapse. CT scan would be helpful to clarify the size of the prolapse. He is improving gradually, and surgery is not indicated at present. He is clearly unfit to return to his work which involves a great deal of bending and lifting, maintaining and cleaning pasteurizing equipment and tanker hoses. In my opinion he will not be able to return to his work. He does attend a chiropractor and asked whether I would refer him under ACC. Although the chiropractor appears to be helping him I would not myself refer him for this treatment. My knowledge of chiropractic methods is negligible, and manipulation is contra-indicated in the case of a known disc prolapse. Fortunately his chiropractor appears to be adopting a sensible approach. He should retire from his present job." On 11 February 1993 Mr Jamieson advised the respondent: "I would confirm that Mr Hooper has suffered a lumbo-sacral intervetebral disc prolapse. Further radiological investigation has been arranged to provide further anatomical information. He is not fit to return to his previous work with the dairy company and this situation is permanent." After the review hearing the Review Officer requested further information from Mr Jamieson, in particular, seeking his opinion as to whether the injury sustained 4 by Mr Hooper constituted an exacerbation of the 1975 injury or whether it constituted a new injury. On 5 November 1993 Mr Jamieson replied: "Further to my recent letter I have obtained Mr Hooper's Palmerston North Hospital medical records and have reviewed these. Mr Hooper was admitted to Palmerston North Hospital on 22 September 1975 under the care of Dr Perry. He was seen in consultation by Mr J C MacCormick, Orthopaedic Surgeon, and a diagnosis was made of lumbo-sacral intervertebral disc prolapse with pressure on the left first sacral nerve root. This diagnosis was recorded by Mr MacCormick on 3 October 1975. Mr Hooper recovered well and Outpatient Clinic note dated 21 November 1975 reports good improvement and return to work. Physical examination on 26 January 1993 (E W Jamieson) was consistent with left sided lumbar intervertebral disc prolapse. However it was not possible to identify the level with certainty. Absence of the left ankle jerk was present. This may well have been long standing since the injury of September 1975. The anatomical level of the prolapse which occurred on 27 November 1992 could not be established with certainty on clinical grounds. CT scan examination (11 March 1993) indicated a localised disc protrusion at L5 level. Plain x-rays of the lumbar spine are available. Plain x-rays are not helpful in determining the presence or otherwise of any disc prolapse. The presence or absence of disc degeneration changes on plain x-rays does not bear any direct relationship to intervertebral disc prolapse. I trust you can understand therefore that there is difficulty in attributing Mr Hooper's current state to an injury which occurred in 1975. The disc prolapse of 27 November 1992 may well have been at L4/15 level and the prolapse of 1975 at lumbo-sacral level. CT examination would tend to support the diagnosis of L4/5 disc prolapse in 1992. This examination does demonstrate the presence of a posterior osteophyte at lumbo- sacral level. This is likely to be a factor in compression of the first sacral nerve root. Thus it can be argued that the injury of 1975 has resulted in a pathology which has contributed to the disability suffered in the accident of November 1992." The Review Officer submitted Mr Jamieson's report to the respondent's District Medical Officer, Dr Smidt, whose report to the Review Officer on 29 November 1993 stated: "Mr Jamieson's final comment is: "Thus is can be argued that the injury of 1975 has resulted in a pathology which has contributed to the disability suffered in the accident of November 1992." 5 COMMENT Although Mr Jamieson cannot state with certainty that the site of the 1975 injury is exactly that of the 1992 injury - the difference between 14/5 and L5/S1, is that of immediately adjacent lumbo sacral discs. There is an abnormality on the scan (which is likely to be the result of the 1975 injury) which is considered to contribute to the 1992 problem. In my view IP's current circumstance is very likely to be importantly influenced by the 1975 accident, ie. something has happened in 1992 the result of which is likely to have been markedly influenced by the 1975 injury. The episode of 1992 may not have resulted in a significant injury in the absence of the 1975 accidental injury. P.S.: The injury in 1975 resulted in hospitalisation which suggests it was substantial in nature. In terms of 1992 Act Section 121 (5) (b) is the likely relevant category." Ms Cronin submitted that the finding of the Review Officer that: "Mr Hooper sustained a fresh injury rather than an aggravation on 27 November 1992" assumed that the event which occurred on 27 November 1992 constituted an accident as defined in s.3 of the Act which so far as it relates to this proceeding states: "(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;" Ms Cronin submitted that there was not sufficient evidence before the Review Officer to justify that finding and emphasised the statement by the Review Officer that the resolution of the problem "undoubtedly depends on ones interpretation of the medical evidence". Ms Cronin referred me to the pertinent extracts from Mr Jamieson's report and, in particular, his comment that "it can be argued that the injury of 1975 has resulted in a pathology which contributed to the disability suffered in the accident of November 1992." Ms Cronin also referred to Dr Smidt's report which again raises doubts as to causation. Ms Dall referred me to the definition of accident in s.3 and to the decision in Wallbutton v Accident Compensation Corporation NZAR 629 in which Davison C J confirmed the applicability of the eggshell skull principle within the then Accident Compensation Scheme. She submitted that on the evidence the appellant had suffered a new injury in November 1992 which was the result of his already fragile medical condition. Ms Dall submitted that on the basis of Mr Jamieson's report that "there is difficulty in contributing Mr Hooper's current state to an injury 6 which occurred in 1975. The disc prolapse of 27 November may well have been at L4/4 level and the prolapse of 1975 at lumbo-sacral level" there is no evidence to suggest that had it not been for Mr Hooper turning the spanner he would have suffered the same personal injury. She stated that Mr Hooper had suffered a previous injury diagnosed as a lumbo- sacral intervertebral disc prolapse resulting from an accident in 1975, but that the accident in 1975 did not cause the disc prolapse at L4/5 level diagnosed after the 1992 accident. She submitted that on the basis of the eggshell skull principle there was no requirement that the events preceding the injury be the sole or primary cause of that injury. She acknowledged that Mr Hooper had suffered an accident which had qualified compensation. Ms Dall submitted that there was clear evidence that the appellant had applied force which met with resistance and immediately felt pain and was taken to the hospital where he was shown to have suffered a disc prolapse at L4/5 which was submitted was a fresh injury distinct from the initial injury at the lumbo-sacral level. Ms Dall referred me to the Decision in Mccarthy v Union Steamship Co of NZ Ltd [1916] NZLR 1154 to which the Review Officer referred and in which Stringer J. said: " It is clear that if a man's physical condition is such as to render him peculiarly susceptible to grave consequences from an accident which in a normally healthy person would have no such consequences that will not affect the right to compensation for the more serious result." Ms Dall also referred me to the comments of Mr P J Cartwright, Accident Compensation Appeal Authority, in an appeal by Gray (17/92) where he said: " In presenting the Appellant's case Mr Cadenhead placed considerable reliance on his argument that the " thin skull" rule applies. In so doing Mr Cadenhead sought support from decisions of the Appeal Authority in Edwards v ACC [1990] NZAR 401, Kumarich (7/91), Smith (234/90) and O'Shea (237/90). In my view Edwards, Kumarich and Smith are distinguishable from the case on appeal before me although the decision in O'Shea does lend some measure of support to Mr Cadenhead's argument. In both Kumarich and Edwards there was a fracture superimposed on an underlying weakness. In Edwards v ACC the Appellant fractured his femur when he did a side- step during a game of rugby. It was discovered that he had a bone cyst and the Corporation declined his claim on the basis that as the fracture occurred due to underlying congenital abnormality it did not result from personal injury by accident. The Appeal Authority however upheld the Appellant's claim. Applying the principle of Wallbutton v ACC it found that the Appellant had suffered personal injury by accident. Although the Appellant had performed a movement which he had intended, and while it was unlikely that the injury would have occurred with a 7 person who did not have the underlying problem, the Respondent had to take the claimant as it found him." At the conclusion of the hearing both medical assessors indicated that before they could give me an opinion on the medical evidence they required to review the actual CT scan themselves. They have now provided me with their opinion. As a result of having viewed that scan and I am indebted to them for their report which states: "It is interesting to note that there is evidence of a previous disc herniation in terms of an osteophyte at the L5/S1 level on the left. Given the fact that Mr Hooper had a loss of ankle jerk and left sided sciatica, it is reasonable to assume that the injury in 1975 was at the L5/S1 level on the left. The CT scan done on 11th March shows an L4/5 disc herniation on the right. Mr. Jamieson's letter of 26/1/93 to Dr. Fulton describes bilaterial signs but all the documentation would suggest that Mr. Hooper's principal problem was left sided sciatica. I am therefore of the view that the disc herniation on the right has had little or nothing to do with Mr. Hooper's left sided sciatica. I therefore think that the L4/5 disc herniation, whenever it may have occurred, has little relationship to the present left sided problem. I am therefore of the opinion that the most likely sequence of events is that the 1992 events relate to an exacerbation of the old 1975 injury." While under s.93 the role of the assessors is to assist the Court which needs only to be guided by the assistance given by the assessors, it has been invaluable to me in this appeal because of their ability to read and interpret the CT scan itself. I accept their assessment that the incident which occurred on 27 November 1992 amounted to an exacerbation of the old 1975 injury. However, that does not determine the issue which I have to decide. I accept that Mr Hooper suffered an exacerbation of his long standing problem, but the evidence does not suggest that his injury sustained on 27 November 1992 was caused by the 1975 injury. I agree with Ms Dall's submission that the eggshell skull principle must apply and that the actions performed by Mr Hooper on 27 November 1992 clearly fall within the definition of "accident" as contained in s.3. While a similar injury may not have occurred to someone without the pre-existing problem Mr Hooper was susceptible and the application of force to loosen the nut caused the injuries he sustained. Accordingly, I consider that Mr Hooper suffered an injury by accident which arose out of and in the course of his employment. 8 The appeal is dismissed. DATED at WELLINGTON this 2 7 day of February 1995 A W Middleton District Court Judge dc13-94.doc(mh