Irwin v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 2 40 199 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 VERONICA KAY IRWIN DCA 78/99 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 28th day of July 1999 APPEARANCES: Mr P Wintringham advocate for appellant Mr J D Palmer counsel for respondent Mr T P Cleary counsel for employer RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant has any present right to ongoing entitlements in respect of personal injury by accident arising out of her employment with Richmond Limited. N BACKGROUND In 1997 the appellant, then aged 47, was employed by Richmond Limited at its beef plant at Whakatu and had been so employed since the 1995 season. Her duties consisted of trimming meat and packing meat. Sometime in November 1997 the appellant stated that she felt a sharp pain in her back when lifting a bag of meat. She went and saw the nurse and received some pain killers and eventually it seemed to settle down. On Christmas Eve 1997 she said that she suffered a similar injury again when lifting meat and over the Christmas period the pain was severe. She went and saw her GP, Dr Erasmus, on 28 December. On 6 January 1998 the appellant lodged a claim for cover with her employer who was an accredited employer with the respondent pursuant to section 105 of the Act. The injury was described as a back strain and on 16 February 1998 Richmond advised the appellant that it had accepted her claim in respect of that back strain injury. The appellant's pain did not subside and therefore her GP referred her to Mr D Lawson, Orthopaedic Surgeon, for advice. Mr Lawson reported to Dr Erasmus on 8 April and his report stated, inter alia, "Plain x-rays taken on 6. 1.98 show a degenerative spondylolisthesis of L4 on 5 with minor disc changes in L2/3. The other discs appear normal. She has a degenerative sponylolisthesis and this is the most likely cause of her symptoms". Mr Lawson had called for a CT Scan and he reported further to the employer on 20 May with the results of that scan which he said showed "an anterolisthesis of L4 on 5 without a pars interarticularis defect". He went on to confirm that she had spondylolisthesis of L4 on 5 and had clear signs of nerve irritation injury. Mr Lawson advised the need for surgery to stabilise L4/5 and to prevent further injury to the L4 and L5 nerve roots. Following receipt of that letter Richmond sought further information from Mr Lawson and in particular asked the question "Could you please advise if Kay's current symptoms and incapacity are a result of a) degenerative spondylolisthesis or b ) the injury suffered at Richmond Pacific in December 1997." Mr Lawson replied on 29 May as follows: "I have no doubt that Mrs Irwin's symptoms are the result of her work injury. In my opinion degenerative spondylolisthesis can occur without symptoms and it often takes a specific injury to render them symptomatic. Following receipt of that advice the employer referred the issue to Dr J R Monigatti, Occupational Physician, for his opinion. Dr Monigatti was provided with all medical information which had been gathered. Dr Monigatti reported to Richmond on 23 June 1998 and stated as follows: "Although severe injury is recognised as a precipitant, the onset of back pain in many patients is due to concurrent disc degeneration rather than a mechanical problem. Mr Lawson's diagnosis of degenerative spondylolisthesis indicates that that is the problem here. The degenerative changes elsewhere in the spine are minor, and thus unlikely to be significant contributors to the pain compared with spondylolisthesis. . .. A ... In my opinion, there is insufficient evidence from which to conclude that . Mrs Irwin's spondylolisthesis is of traumatic origin. As there is no evidence that she had suffered from any personal injury to satisfy section 4 of the 1992 ARCI Act, neither Section 8(2) (a) nor section 8(2) (b) is satisfied. I would therefore consider her excluded from cover." On the basis of Mr Lawson's and Dr Monigatti's advice, Richmond advised the appellant by letter on 25 June that it was now declining the appellant's application for cover. In its letter of declinationtated that the basis of declination that there was insufficient evidence from which to satisfy section 4 and sections 8(2)(a) and (b) of the Act. The appellant sought a review of that decision. In her decision the Review Officer applied the principles which had been enunciated by this Court in the decision of Burke (198/98) finding that the trauma of the accident had precipitated the on set of the symptoms of the pre-existing degenerative condition and that it was the pre- existing condition which was the cause of her ongoing condition. The review was therefore unsuccessful. The appellant thereupon appealed to this Court. No further medical evidence has been adduced for the purposes of this appeal. SUBMISSIONS Mr Winteringham, advocate for the appellant, submitted that the medical evidence of Mr Lawson was to the effect that the appellant's symptoms were the result of her work injury. He submitted that the appellant had no prior history of back problems and that the nerve root injury which was identified was attributable to the lifting accident. 5 Mr Cleary, counsel for the employer, submitted that the medical evidence determined that the appellant's spondylolisthesis was degenerative in nature and not as a result of trauma and therefore cover for the continuing effects of that was excluded by section 10 of the Act. Mr Palmer, counsel for the respondent, submitted that the evidence of Mr Lawson was clear and that it was degenerative spondylolisthesis that was the cause of her symptoms and that the injury in December 1997 had simply rendered that condition symptomatic. He submitted that this case was similar to the previous decisions of this Court in Burke (198/98) and Hill (133/98) and that it is the degenerative condition which is the substantial cause of her present pain and discomfort rather than the back strain which was the injury for which cover was granted. The provisions of section 10 of the Act are relevant in this appeal. That section states as follows: Section 10 (1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is - (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 1 1 of this Act; or (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury [covered by this Act]. 6 (2) For the avoidance of doubt it is hereby declared that - - (a) Personal injury caused wholly or substantially by the ageing process; and (6 ) Personal injury to teeth that is caused by the natural use of those teeth - is not covered by this Act. DECISION In this appeal it is first necessary to set the record straight insofar as the appellant's claim for cover is concerned. The record shows that the appellant lodged a claim for cover with her accredited employer for a back strain that was certified as such by her GP, Dr Erasmus. The appellant gave evidence at the review hearing of the two events in November 1997 and December 1997 when she felt a twinge and pain in her lower back whilst in the course of lifting meat from the conveyor. The employer accepted the appellant's claim for cover on the basis of this back strain, and on the evidence that it had that was clearly the correct decision. The appellant was entitled to treatment costs and other expenses arising out of that injury and again there can be no quarrel with that, including weekly compensation for the period she was off work. For some reason the matter thereupon seems to have become clouded as there is some information on the file that the appellant had indicated that she had not in fact suffered any particular event or series of events but rather it was a gradual process. Whatever may have been the belief of the employer, the fact of the matter is that cover was for a personal injury by accident and not for personal injury by gradual process. The matter came into sharp review when the appellant sought approval for surgery with Mr Lawson and it was as a consequence of his reports for that purpose that the 7 employer asked the question about the connection between the back strain and the spondylolisthesis which was to be the subject of the operation. I have already recorded how on the 25" of June1998 the employer advised the appellant that it was declining the request to pay for the surgical procedures and that it was doing so on the basis of the advice received from Dr Monigatti. However, I find that the basis upon which the employer declined, namely on the basis that it had not been established that the appellant had suffered personal injury by accident or by gradual process, was simply not available to it. It had already accepted cover for personal injury by accident and it was not purporting to cancel that decision pursuant to section 67A, and the manner in which it did in fact decline was not open to it. There was a valid acceptance of cover and from that point onwards the employer ought to have looked at any entitlement claims purely in relation to the cover it had granted, rather than simply arbitrarily determine that cover was declined. However the matter was correctly addressed by the Review Officer when she looked at the matter from the point of whether there was a causal connection between the injury for which cover was granted and the condition for which surgery was sought. For the purposes of this decision, I am taking the view that the appellant has a valid claim for cover for personal injury by accident being a back strain caused when she was lifting packets of meat and the question now is whether the spondylolisthesis at L4 on 5, for which surgery is required and in respect of which she is continuing to suffer pain and incapacitating injury, is causally connected with that accident. The evidence established that the appellant suffered her first low back pain sometime in November and again on 24 December 1997. X-rays taken some two weeks after that date show that she is suffering from degenerate spondylolisthesis on L4 on 5. Mr Lawson's report stated that she had degenerative spondylolisthesis and that this was the most likely cause of her symptoms. By her symptoms I take him to mean the continuing back pain that she was suffering. 00 In his report of 20 May 1998 Mr Lawson confirms the fact of spondylolisthesis and that she had clear signs of nerve root irritation. Finally in his advice of 29 May 1998 he stated that in his opinion degenerate spondylolisthesis can occur without symptoms and it often takes a specific injury to render them symptomatic. In that statement he was replying to a specific question posed by the appellant's case manager and I take his answer to be that the twisting injury which the appellant suffered caused her pre- existing asymptomatic spondylolisthesis to become symptomatic. In Dr Monigatti's review of the medical evidence he considered that there was insufficient evidence from which to conclude that the appellant's spondylolisthesis was of traumatic origin. This I find was in line with the findings of Mr Lawson and it is on that basis that the employer mistakenly elected to decline cover for the spondylolisthesis whereas in fact it ought to have simply advised that as the surgical procedures were sought for that particular condition and that that condition was not caused by the accident it should have simply declined entitlement to payment for the surgery. Despite the submission of the appellant's advocate that the appellant has a nerve root injury, I find that that alone is not sufficient to establish a causal connection when the clear medical evidence is that the root cause of the injury is now the degenerative spondylolisthesis becoming symptomatic. The fact that the twist injury started that chain is not sufficient to have that injury allowing for a continuing entitlement where the present cause of the appellant's condition is that of a degenerative condition and in respect of which exclusion is required under section 10 of the Act. As this Court has stated on several occasions, in particular in its decisions in Burke and Hill, if medical evidence establishes that there are pre-existing degenerative changes which are brought to light or which becomes symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerate 9 condition that can be covered. The fact that it is the event of the accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes it just caused the effects of those to become apparent and in many cases for them to become the disabling feature. This is the position which I find to be the case in this present appeal. The facts as I find them are that the appellant's pre-existing degenerative spondylolisthesis was caused to become symptomatic by the incident in December 1997 and it is the ongoing effects of her spondylolisthesis which is the condition which necessitates surgery and which is presently causing her disability. There is no evidence that says that the back strain is causing of itself ongoing disability and for which there is a need for surgery. For the foregoing reasons therefore the decision to decline the appellant's ongoing entitlements in respect of her spondylolisthesis was correct even if the manner in which that decision was given was not correct. For the avoidance of doubt, I declare that the appellant is still entitled to cover in respect of her personal injury by accident from the twisting incident of 24 December 1997 but that in respect of her claim for ongoing entitlements in respect of that injury, her appeal against the respondent's refusal to grant same is dismissed. DATED at WELLINGTON this 25 day of August 1909 clothe MJ Beattie Disrict Court Judge 78-99Irwin.doc(gm)