Hay v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 11/ 2007 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 120/05) BETWEEN VICKI HAY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 6 November 2006 Appearances: Ms Sonia Thistoll for appellant Mr A D Barnett for respondent Judgment: 17 January 2007 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The question in this appeal is whether a whiplash injury suffered in 1996 was a substantial and effective cause of a regional pain syndrome that developed over a later period and was first diagnosed in 2001. [2] Mrs Hay was admitted to Hutt Hospital on 14 October 1996 after a motor vehicle accident. The house surgeon's case notes for her examination and treatment recorded: "Neck injury. Car accident today with whiplash injury. Neck feels stiff & tender. Tail bone also sore. O/E tender posterior aspect of neck. Localised tenderness over coccyx. Imp [Impression]: neck strain ?# [query fracture] coccyx Plan: x-ray neck + L/S [lumbo sacral] spine. ?# [query fracture] tail bone soft collar analgesia as required cervical spine intact." [3] An x-ray report of cervical spine and sacrum showed no abnormality in either cervical or sacrum coccyx areas. An ACC claim for cover and treatment expenses form was completed immediately by the house surgeon with a diagnosis of "neck strain and back ache". There was no record of severe neck strain and Mrs Hay resumed work. [4] Dr Helen Moriarty, the appellant's general practitioner, noted on 16 September 1997: "Lower back ache - sacral (residual from MVA 14/10/96). No pain or weakness in legs. No bowel or bladder problems. Headaches in back of neck. Had migraine last week - nauseous, visual disturbance." The notes did not explicitly associate the neck headaches with the accident, but this was an abbreviated GP note which could not be expected to contain all detail of the examination. [5] In October 1998 Mrs Hay was referred to Hutt Hospital complaining of headache. She was seen at Neurology Outpatients by Dr Mossman, Neurologist. The report of 27 October 1998, completed by Dr Hayes for Dr Mossman, recorded a history of two weeks pain in the left shoulder passing into the left arm; stiff neck for about two months; headache and tightness in head for the last two weeks; two months of feeling tired; past history of migraines associated with periods, peptic ulcer, three caesarean sections and an abscess over the sacrum when aged 13, also a cholecystectomy. A stiff neck was noted on examination. There were no neurological symptoms or findings. CT head scan was unremarkable and lumbar puncture was unrevealing. A possibility of connective tissue disease was postulated in view of the pain. No follow up was arranged as a neurological lesion was not found. Gradual Process Claim [6] In January 2001 Mrs Hay lodged a claim for cover for a work-related gradual process injury - left tennis elbow and left neck pain. A referral was made to Dr Hartshorn, specialist in occupational medicine, for a review. Dr Hartshorn reported on 26 April 2001: "Mrs Hay states that she first developed symptoms around 2 years ago. She describes intermittent neck discomfort associated with discomfort over both wrists, forearms and elbows. These symptoms were not persistent and were present in a low grade fashion. In January 2001 Mrs Hay noticed a significant worsening of her symptoms. Her neck became increasingly sore which was described as pressure in the back af her neck. This was associated with headaches described as a frontal ache. In addition, there was increasing and persistent discomfort in the wrists, forearms and elbows. [7] The history taken by Dr Hartshorn included a reference to a whiplash injury within the last 10 years in a nose to tail accident at around 30 to 40 kph, but it also described the relevant symptoms as having developed at least two years after the accident . Dr Hartshorn did not attribute Mrs Hay's symptoms to the motor vehicle accident and did not record Mrs Hay as making such a connection. Dr Hartshorn recommended that x-rays be taken of the cervical spine. The likely diagnosis was said to be a regional pain syndrome. There had been a significant worsening of symptoms in January 2001. Dr Hartshorn wrote: "Clinical examination today revealed no objective evidence of a specific musculoskeletal or neurological abnormality in either upper limb. Specifically there was no sign of a tendonitis. In addition there were negative provocation tests for medial and lateral epicondylitis. The most striking findings on examination were that of the extremely reduced range of motion in the cervical spine in extension and flexion. In addition the neck was held quite stiffly in a semi-flexed position. The other significant finding was that of positive fibromyalgia trigger points predominantly around the neck and shoulder girdle. In my opinion the most likely diagnosis at this point is that of a regional pain syndrome. Before being entirely comfortable with this diagnosis however I would recommend some further investigation to exclude other causes of Mrs Hay's symptoms. I would recommend investigation with a cervical spine x-ray. Mrs Hay gives a history of a whiplash type injury a number of years ago. This x-ray would be of use to exclude significant underlying degenerative change secondary to this injury. This may well predispose Mrs Hay to neck discomfort and may explain the significantly reduced range of motion. In addition blood test investigation would be indicated given the relatively generalised nature of the discomfort. A full blood count, ESR. CRP and auto-antibody screen would be indicated. The reason for undertaking these is to exclude any significant underlying inflammatory disorder." [8] Dr Hartshorn considered the possibility of degenerative changes from the whiplash type injury. That was eliminated by subsequent x-ray. Mrs Hay was then examined by Dr Peter Dodwell, Specialist in Occupational Medicine, by way of further investigation of the work-related gradual process claim. Dr Dodwell agreed that the appellant was suffering from a pain condition but concluded that there was no work-related physical injury and the symptoms were not connected to the appellant's work tasks. In his report of 7 January 2002 he referred to x-rays taken in May 2001 showing slight narrowing of the Co-7 disc with some anterior degenerative change in osteophyte formation. He mentioned the 1996 injury but did not address the matter further. He discussed the diagnoses of OOS and regional pain syndrome and concluded neither was appropriate. He said that "regional pain syndrome " is: "... a rather vague descriptive term used to describe pain which is relatively diffuse, commonly affecting the upper limbs, and which tends to run a relapsing course often aggravated by relatively mild activity. It may also be associated with symptoms of weakness as well as numbness and tingling, and can be associated with the so-called FMS tender points, as well as with a number of other conditions (such as depressive illness, migraine, irritable bowel/bladder, and Raynaud's syndrome). Because the term is purely descriptive, it does not constitute a particularly specific diagnosis and so should be reserved for a situation where other more specific diagnoses have been ruled out. That appears to the situation in this case, to the extent that no specific physical injury has ever been demonstrated." [9] Dr Dodwell considered that there was no work related physical injury process. His conclusions were focused on the work-related injury claim he was asked to investigate. Mr Barnett for the respondent noted that the association with migraine raises the question whether the appellant's migraines described prior to the motor vehicle accident may be implicated. [10] Mrs Hay was then seen by Dr Edward Wong, Neurologist, at Wellington Hospital Outpatients Clinic on 17 September 2002. He made no firm diagnosis and made no mention of the motor vehicle accident. He said: "It is difficult to get a clear history of her pain, but she variously described an occipital headache, neck pain as well as pain in the left arm, including the hand, which she describes as an ache or burning sensation. These pains occur in different parts of the arm and neck at different times, but she says are precipitated by activities, as simple as using a pen or holding a book or opening a can, but also with more active activities such as recently when she was putting up a shower curtain. The pain she says is usually delayed sometime after the activity, for example when she was writing the third page of a letter, or even the following day, an example being the shower curtains. She also describes some tingling in the left hand, going up to the elbows. She says she has been compensating by using her right hand more and has recently had some pain in her right wrist. She said her symptoms are worse in the summer. She gets the pain at night at times, but it is probably no worse than during the day, in as much as she really is in constant pain. She says the pain does not shoot down her arms, nor do neck movements particularly bring on the pain. There is a long history of migraines but the occipital headache she describes is quite different to her migraines." He thought it most likely that Mrs Hay suffered from a regional pain syndrome. [11] On 25 November 2002 Mr Bossley, orthopaedic surgeon, noted her reported history of onset of symptoms four years before. He made no mention of the motor vehicle accident. His diagnosis was of a "probable regional pain syndrome left arm". He noted that her lawyer was applying for ACC for injury due to her job. [12] CRM, the Corporation's agent, declined the appellant's work-related gradual process claim and its decision was upheld at review. The appellant filed anagainst the review decision and made arrangements to obtain further medical evidence from consultant rheumatologist Dr R D Wigley to assist with the appeal. Dr R D Wigley [13] Dr Wigley examined Mrs Hay and reported on 22 April 2003 after reviewing the available notes, reports and opinions. He described the accident as follows: "She was on the Hutt Motorway when some ducks crossed in front of her and she put her brakes on. The driver of the car behind her evidently was not paying attention and went directly into the back of her car. Her seatbelt prevented her body from going forward but her neck would have gone sharply forward, short of impacting on the steering wheel or the windscreen. She was taken by Ambulance to the Hutt Hospital where x-rays of the neck and the lower back were taken. She had pain in the neck and lumbosacral area. Indeed ever since then, she has had pain extending all the way down from the nape of the neck to the sacrum. This remains her most severe pain." [14] Dr Wigley found no abnormality on x-rays of October 1998 and only minor reduction of disc space with anterior osteophytes at the C6/C7 level on x-rays of May 2001. He went on to say that she had severe whiplash injury in October 1996 and had not at any time recovered from those symptoms. The symptoms had become more severe and at times more widespread, increased by the working position in an adverse work environment. Dr Wigley found that Mrs Hay had sufficient tender points to warrant a diagnosis of fibromyalgia. The pain was more pronounced on the left side so could be called fibromyalgia or a regional pain syndrome affecting the left side. Changes suggestive of degeneration in the lower part of her neck could be secondary to the neck injury. He said that it was unlikely to be attributable to the aging process as she was only 38 at the time of the injury and was possibly a sequel to the neck injury. He regarded migraine as probably incidental as her migraine attacks had decreased in frequency and severity since the onset of her musculoskeletal symptoms. [15] In answer to some specific questions Dr Wigley wrote: '1) What was the initial cause of her symptoms? In my opinion her symptoms all followed and have continued with varying intensity, ever since the whiplash injury in 1996. There has been no break in the continuity of symptoms. 2) What has caused the symptoms to be sustained? Continuing her job working directly into the computer in a substandard work station under intense pressure to perform, has led to the escalation of her pain sensitivity due to plastic changes in the nerve cells. This is now indicated by the reduced pressure pain sensitivity and other signs on examination. This has been aggravated by an adverse stance by management and insurers and to some extent, to her own tendency to try to ignore her symptoms (denial). 3) Is there a physical injury? The whiplash episode is clearly a physical injury. The continuing pain implies long term changes, if not permanent changes, to the nerve cells and these can be considered to be a physical injury. It is also clear that her symptoms were induced by physical means so in that sense it was a physical injury. 4) Did the work situation create an increased risk of her developing her symptoms? Yes. In both aggravating and continuing the symptoms." [16] Mr Barnett submitted that Dr Wigley's comment about changes seen on x-ray at C6-7 was expressed in a tentative way and that he gave no positive opinion about accident related degenerative change. Mr Barnett submitted that Dr Wigley's report contained the first opinion that the pain symptoms were caused by the motor vehicle accident, and it is the first report in which the whiplash injury was described as severe. The documented history contained nothing to indicate that the impact or the injury might have been severe. The only evidence of continuity was Dr Moriarty's note a year after the accident that lower back pain had continued since the accident. Dr Stuart Mossman [17] The Corporation then arranged for Mrs Hay to be examined by Dr Stuart Mossman, Neurologist, who had seen her in 1998. Dr Mossman provided a written report on 22 January 2004. He said that it was not appropriate for him to comment on the appellant's limb and neck pain apart from saying that she had no objective neurology to accompany the symptoms and that the cause of her neck pain was ill- defined. However, he did agree that the "history of the patient's limitations and physical activities by movement would suggest a predominant musculoskeletal problem in accord with Dr Wigley's assessment". Further, that the appellant's headaches "may also have a muscloskeletal component" rather than being migraine headaches. He diagnosed the appellant with chronic pain. His assessment was as follows: "The history of the patient's limitation and physical activities by movement would suggest a predominant musculoskeletal problem in accord with Dr Wigley's assessment. Her headaches may also have a musculoskeletal component, being aggravated for example by prolonged standing with an increase in back pain or holding her arms outstretched in front of her when driving, this leading to aggravation of the headache the following day. There is little in the way of her headache to suggest migraine although headaches have become more prominent and indeed chronic daily headaches since her injury and it would be reasonable to attribute her headaches to being post raumatic in nature, whatever that is, aggravated by other musculoskeletal factors. It is not appropriate for me to comment on her limb and neck pain, sufficient to say she has no objective neurology to accompany those symptoms, but the cause of neck pain is ill-defined, and treatments for neck pain anyway are unproven. The patient is clearly limited in domestic tasks and she is obviously going to be limited in any kind of work environment. With respect to your question of symptoms relating wholly or substantially to non-injury factors, - it is likely that her accident and work environment have contributed to her problems, but on the other hand the incapacity which the patient has would seem out of keeping with respect to symptoms occurring in other members of the population involved in similar incidents. The patient made light of her symptoms following the original impact from the car injury in '96 for some months subsequent to that event and it would seem that the description of the patient's pain and physical limitations would be somewhat in excess of an injury of the nature that appeared to occur some eight years ago. Certainly with a chronic pain syndrome it is unlikely that this lady is going to get back to any full time vocation or occupation and I am not confident that I can make any helpful recommendation as to how she is going to achieve that. ... [18] Dr Mossman twice commented on the pain symptoms being out of keeping with, or in excess of, the nature of the whiplash injury. While he said it would be reasonable to attribute her headaches to being post traumatic in nature, he chose not to identify a specific traumatic cause, and he did not make the same comment in relation to neck pain. The opinion was tentative and does not positively support the appellant's case. [19] Opinions were then obtained from two dental surgeons, and also an x-ray of the jaw, eliminating the possibility of accident related temporo mandibular joint dysfunction. These documents were referred back to Dr Wigley who said that he regarded Dr Mossman's opinion as largely in agreement with his own. Dr Wigley did have not change his opinion as to the diagnosis and cause. Decision and review [20] The Corporation issued a decision of 30 July 2004 that Mrs Hay's incapacity was not caused by a personal injury suffered on 14 October 1996. The decision was confirmed in a Review decision delivered by Mr D Walker on 25 February 2005. [21] The Reviewer found that the reports of Mrs Hay's symptoms contradicted Dr Wigley's conclusions about her symptom history since 1996. Whereas Dr Wigley concluded that she had had persisting symptoms since her accident, Mrs Hay had given a different history to Dr Mossman, Dr Wong, and Dr Hartshorn. Further, Dr Wigley's report did not comment on the relevance of Mrs Hay's pre-injury history of headaches and backpain. All the reports record the onset of her current symptoms. Dr Mossman reported symptoms occurring in August to October 1998. The Reviewer considered that starting point was consistent with the reported history given to Dr Wong, Dr Dodwell and Dr Hartshorn. The GP notes did not correlate with the history taken by Dr Wigley. The Reviewer said: "Contrary to the applicant's submissions, I consider that Dr Mossman is also sceptical about the relationship with the 1996 accident. In his opinion, Ms Hay's symptoms are out of keeping with other people who have suffered similar accidents. Dr Mossman also appears to question the usefulness of the term "post-traumatic', given that in a temporal sense, Ms Hay's recent symptoms have occurred since 1996. At best, all Dr Mossman says is that Ms Hay has a predominant musculoskeletal problem. However, he does not attribute a cause or basis for that problem." (22] The Reviewer decided that there was insufficient contemporaneous evidence to support a nexus and that Ms Hay has not established a causal link between the accident that occurred in 1996 and the symptoms she now suffers from. Dr Mark Davis [23] The appellant's solicitors then obtained an opinion of 20 September 2005 from Dr Mark Davis, Psychiatrist. The report referred to Dr Wigley's description of severe whiplash injury. Dr Davis said that Mrs Hay told him that her own car was shunted forward a considerable distance and, based on discussion with Police, the driver of the other car may well have been travelling anything from 40 to 50 km per hour or more. Mrs Hay had only patchy memories of the event. She recalled being thrown forward but did not recall hitting her head. There was no record that she hit her head or that she was knocked out. She remembered being sore along the line of the seatbelt. Mr Barnett submitted, and I think correctly, that there was no evidence to support the proposition that the acute injury had been severe and that Dr Davis, whose speciality is in psychiatry, did not reach that opinion independently but adopted or agreed with Dr Wigley's view. (24] Dr Davis recorded details of Mrs Hay's stress at work and other factors that affected her, including a traumatic family bereavement and its consequences. He noted her explanation that when she saw Dr Mossman in 1998 she did not at that time feel that the motor vehicle accident in itself caused particular damage but she knew that it was associated with ongoing aches and pains. She said that Dr Mossman did not ask about the motor vehicle accident, probably because the symptoms were more prominent when she starting working at WINZ so that she focused on the possible relationship with her work or other causes. She considered that "repetitive movements at her work brought on or worsened her general pre-existing symptoms". In support of the association between the whiplash injury and pain symptoms, Dr Davis said: "The history reported to myself and supported by collateral medical evidence suggests that the aches and pains that were present through 1997 became gradually more and more manifest as a result of the demands of her work environment at WINZ from October 1997 onwards. The history suggests that these pains increased and became more and more problematic particularly by 2001. From then onwards the pains were significant and worsened right up to the time when she left WINZ. There has been some improvement clinically since then but significant pains remain. These seem to be the same pains that have troubled her all the way through." [25] Dr Davis found that Mrs Hay fulfilled DSM IV diagnostic criteria for Chronic Pain Disorder, namely that pain is experienced in a number of anatomical sites, is significantly severe and clinically significant, and is the predominant focus of her clinical presentations. Psychological factors, which he described, played an important role in the severity, exacerbation and maintenance of the pain. After noting the views of all the practitioner's who had examined Mrs Hay, he said: "I consider that she sustained a significant whiplash injury causing apparent severe pain in her head, neck and tail bone. These were clearly identified at the time. The history she reports to me indicates that these symptoms persisted all through the rest of 1996 and 1997 and in fact were the reason for presentation at the end of 1997 to her general practitioner, which was recorded. This consultation occurred just before she started at WINZ. It is likely that the whiplash injury was severe in view of the circumstances of the incident and the speed of which the car was hit. She was also in a state of emotional shock. There is no evidence of post traumatic stress disorder related to the injury. Despite persisting symptoms she seems to have coped reasonably well through 1997 although did require a consultation at the end of that year because of persistent symptoms. My impression is that her symptoms worsened and became more specific as a result of the work circumstances and work environment at WINZ. There is evidence that the work environment was stressful and demanding despite her success in her job and her pleasure at doing her job. Her description of her personality style supports someone who tends to push through awareness of symptoms and tends to have an intense 'boom and bust' style anyway. These attitudes and behavioural approaches are positive in one regard but equally can increase muscular tension which can worsen pain syndrome particularly of the repetitive strain injury type. fibromyalgia is also linked with this type of style of coping. Her stoicism and wish to cope as best she can is a feature throughout her life and has meant that she has not required formal medical support when others may well have. I consider that she became physically and emotionally exhausted and burnt out through her time at WINZ for the reasons I have stated." Mr Graham Martin [26] Mr Graham Martin is a Neurosurgeon engaged as a Branch Medical Advisor to the respondent. In examining his opinion as evidence in the appeal, I take into account his business association with the Corporation and the fact that he performed a file review and did not examine the appellant. Mr Martin accepted Dr Davis' account of the history given by Mrs Hay and he noted the main findings of each of the medical examinations, reports and opinions. [27] Mr Martin pointed to Mrs Hay's pre-injury medical history including pain similar to migraine, but not clearly diagnosed, and admission to hospital for abdominal pain for which no cause was found. That part of the history raised a possibility of susceptibility to undiagnosed pains, which is of possible significance in the context of later chronic pain syndrome. Mr Martin then referred to the absence of any record of severe force involved in the accident, and to the fact that the first documented complaint of neck pain made to the appellant's general practitioner was in 1997, a year after the accident, and the next in 1999 two and a half years after the accident. There are no further GP notes recording neck pain before the notes ended in 2002. 28] X-rays and a bone scan showed no abnormality in the cervical spine until mild osteophyte formation seen on an x-ray in 2001. When admitted to the Hutt Hospital for investigation of headaches in October 1998 Mrs Hay had stated that the problem had begun a few weeks before. Again there was no mention of the accident in a detailed past history that went back to the age of 13. Mr Martin noted that she was seen in the neurology Department at the Hutt Hospital in March 1999, and not then thought to have a disorder arising from the accident. A bone scan was normal. An x- ray showed only slight degeneration of the Co-7 disc space. Mr Martin commented that there was no evidence to indicate whether the degeneration had occurred after the accident or not because it would not have been a subject for comment in post accident radiology. Mrs Hay did not mention the accident to Dr Wong or to Dr Bossley in 2002 [29] Mr Martin considered that Ms Hay's own strong belief that her present pain has been continuous is a usual feature of the diagnosis of chronic pain syndrome. Beliefs about the cause are unshakeable and are not a useful indicator in attributing cause. He noted that she did not strongly hold that belief till she saw Dr Wigley in April 2003. Earlier, she had told Dr Hartshorn about the accident but did not associate it with her symptoms. Dr Martin said: 'Conclusion. Only Dr. Wigley has considered that the whiplash injury is a significant physical cause of the present symptoms. Dr Mark Davis the psychiatrist thought that it was a significant cause of the symptoms, but in the context of his examination and the way he argued, he meant a significant psychiatric cause of the symptoms. Even then, both Dr Wigley and Dr Davis thought it was much overshadowed by non injury causes. Four other consultant examiners (Mr Bossley, Dr Mossman, Dr Wong, Dr Dodwell) have either avoided making a diagnosis, or called it a pain syndrome. Dr Davis thought the major part of the diagnosis was psychiatric, with some basis in her beliefs about the accident. A Pain Syndrome is a term describing the presentation of a complaint where pain dominates or exceeds the physical basis of the complaint. In many cases the physical basis is obvious and the diagnosis then becomes a Pain Syndrome due to .... (e.g. a phantom limb). When the cause is unknown or obscure it is left as A Pain Syndrome. This is in accord with the practice of the /ASP (International Association for the Study of Pain) In 1994 the IASP defined two types of Chronic Regional Pain Syndrome (CRPS). There were those associated with an observable nerve lesion (CRPS Type II) and those without an observable lesion (CRPS Type 1). Remembering which is which, Type 1 or II, has proved a problem, so the customary nomenclature has been to add a basic diagnostic term to the phrase, to distinguish those who have a clear origin. Thus the broad term 'chronic regional pain syndrome' is used where no disease or injury has been diagnosed as the origin. This option is not available to psychiatrists. They are asked to specify their diagnosis in terms of DSM-IV, the Diagnostic and Statistical Manual of Mental Disorders, of the American Psychiatric Association. They must always specify a cause (p499 DSM-N) for the pain syndrome, the possibility that one cannot be identified has not been left open to them. (See Dr Davis report comments in the tabulation of diagnoses). Thus the term 'pain syndrome', when used without a qualifying phrase, has no signs and is without an underlying medical diagnosis. It can only be based on what the patient tells you, not on observation. Four consultants have used the unqualified term 'chronic pain syndrome' without a diagnosis of the origin. A psychiatrist has diagnosed the neck injury as being psychiatrically significant only. Dr Wigley diagnosed a whiplash injury, but with chronic pain syndrome and fibromyalgia as being equal other diagnoses Thus, reviewing the notes and investigations, it is apparent that the injury suffered in 1996 made no substantial physical contribution to Ms Hay's problems after 2003, even though she now believes it did. Before 2003, it is clear from contemporary accounts, that she herself did not believe it was important at that time, either." [30] Mr Barnett relied on Mr Martin's analysis and opinion as the basis of the respondents argument that the 2004 decision was made correctly. Submissions for appellant [31] Ms Thistoll submitted that Dr Martin was the only specialist who specifically excluded the 1996 injury as the cause of ongoing incapacity. His reasoning for reaching his conclusion is based on his interpretation of Mrs Hay's delays in complaining of neck pain and not commenting on the accident, points which have adequately explained and addressed by Dr Davis. Mr Thistoll submitted that Dr Martin's comments on the significance of the x-ray findings are inconsistent with Dr Wigley's findings after examining the x-rays, and Dr Martin's conclusions about the weight to be given or the significance of comments from other consultants is misleading and fails to take into account the manner in which this claim changed from a gradual process to personal injury entitlement claim. [32] It was submitted that Mr Martin's opinion is the result of a paper review and that he is a Branch Medical Advisor whose opinion should not be preferred over specialist's who have actually examined the claimant in giving their diagnosis. Ms Thistoll submitted that Mr Martin's conclusion that only Dr Wigley considered that the whiplash injury was a significant physical cause of the appellant's present symptoms is not supported by the available medical evidence. Dr Davis agreed with Dr Wigley and Dr Mossman did not reach a conclusion. Dr Hartshorn identified it as a possibility but did not look into the matter further himself as he was only tasked with investigating the connection of her symptoms with her work. [33] Mr Martin placed great weight on the absence of visits to the doctor in the early stages and the absence of reporting to some specialists about the motor vehicle accident. However, Dr Davis reported that Mrs Hay explained that the history she gave depended, at times, on the way she was questioned by the particular medical examiner. Some doctors invited a general history and other only asked specific questions. She had a longer interview with Dr Wigley and Dr Davis which allowed her to give a more comprehensive background to her symptoms. Ms Thistoll noted that the two specialists who did not comment on the 1996 accident were specialists consulted about the work-related gradual process injury claim. [34] Ms Thistoll submitted that Dr Mossman had considered the appellant's headaches to be post-traumatic in nature and that her accident and work environment had contributed to her problems. He agreed with Dr Wigley's assessment that the cause of the appellant's problems is musculoskeletal in origin. Dr Davis considered that the whiplash injury caused acute injury and sprain at the time of the injury and the pain had persisted thereafter leading to her current condition of chronic pain disorder. Dr Davis reached this opinion based on his history taking and medical evidence including hospital notes, general practitioner records and specialist reports. Decision [35] The opinions of Dr Wigley and Dr Davis support the appellant's claim for cover for a pain condition caused by the whiplash injury suffered in 1996. But I agree with Mr Barnett's submission that those opinions rest strongly on the foundation that the appellant suffered a severe whiplash injury, a proposition for which there is no evidence apart from the appellant's history given some years later in support of a claim. Until Dr Wigley examined the appellant, there was no documented association between the whiplash and pain symptoms which reached a severe level some five years after the motor vehicle accident. None of the doctors had earlier drawn such a conclusion. [36] I bear in mind that the examinations by Dr Mossman and Dr Wong had been directed to the possibility of employment conditions causing a pain syndrome, but it is still very relevant that no connection was made with the 1996 accident when general practitioner notes were available and a history was taken from the appellant more than once. [37] In this case there are other factors that are likely to have been implicated in causing the pain syndrome, particularly employment conditions and other causes of stress during or leading up to the period in which the symptoms developed. The link with whiplash is tenuous and the reasons for making the link do not withstand examination. [38] I bear in mind the appellant's submissions that the period of time between the 1996 accident and her application for entitlements was because her employment tasks aggravated her symptoms, and that the absence of documented symptoms following the 1996 accident did not break the causal link. The resurgence of symptoms is said to have been brought about by a stressful work environment and an increase in physical activity at work. I take into account also that the appellant is said to have been stoical and likely to have persevered without treatment despite persistence of symptoms. [39] Nevertheless, I find Dr Martin's analysis persuasive and I accept the respondent's argument that evidence does not show the 1996 accident to have been more than an incidental factor in the development of the appellant's chronic pain syndrome. I find that it is not shown to have been a substantial and effective cause of the chronic pain condition which developed from 1998 onwards. [40] For those reasons, the appeal is dismissed. Ms Thistoll applied for a direction for payment of the cost of Dr Wigley's report. The parties were to attempt to settle that question and the point is reserved in case a direction is still required. Signed at Wellington on 17 January 2007 at HE@ pru. Judge D A Ongley District Court Judge