Rodgers v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 170 /97 HELD AT WELLINGTON 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 WILLIAM NEVILLE RODGERS Appellant (Appeal No. DCA 284/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent L J Richards for appellant P J Zumbach for respondent DECISION OF JUDGE D A ONGLEY This appeal is dealt with by consent on the papers. It concerns a question of continuing entitlement to weekly compensation where it is alleged by the Corporation that the appellant's present partial disability is not caused by personal injury by accident but by an underlying degenerative condition. The facts concerning the appellant's history are not much in dispute. The appellant, then aged 53 years, sought medical advice in October 1991 after experiencing pain in his shoulders after putting up ceiling tiles. He was diagnosed as suffering bilateral rotator cuff syndrome. The appellant was involved in the joinery industry from 1958. In 1962 he began working as a commercial carpenter which he continued until about 1982 when he ceased active work on building sites and became involved in management of contracting work so that he was no longer undertaking heavy lifting or repetitive work involving his arms and shoulders. There was a downturn in the industry in about 1990 and he found it necessary to cut down on staff and resume active carpentry as he had been doing up until 1980. He built two townhouses in Timaru and developed shoulder pains soon after he started. He was nailing interior lining onto ceilings using a - 2 . pneumatic nailer above his head. Since then he has ceased building work and assumed a less active lifestyle. The claim was accepted on the basis of certificates provided by the claimant's general practitioner. He was then referred to Dr D W T Ching who reported on 11 July 1995 as follows: "Whilst Mr Rodgers shoulder problems did arise initially in 1991 after putting up lots of tiles in the ceiling, I have informed him again that he belongs to the age group in which rotator cuff lesions on the shoulders are most common. The fact that he still has continuing pain in his shoulders, approx 4 yrs after some hard repetitive work, would indicate that the ongoing process in his shoulders are currently a result of natural processes and degeneration due to age rather than because of the episode of repetitive work in 1991. I have informed him of my opinion which he has accepted, and he does realise that as a result of this, he might no longer be eligible for ACC's weekly compensation. I am sure Mr Rodgers' shoulders will gradually continue to improve and might improve further if he was to have further steroid injections." As a result, the Corporation issued a decision ceasing weekly compensation from 16 August 1995. The claimant's solicitor arranged for him to be examined by Dr John Gillies who reported on 12 September 1995: "Firstly, it would not appear that this gentleman had any condition prior to his injury at work in 1991. Secondly, he was not accustomed to physical work at the time of his injury and in fact had not done any physical labour for about 12-14 years, having had a desk job prior to this. Thirdly, he then performed hard physical labour with arms above the head in a repetitive manner and suffered a painful arc syndrome as a result of this. The symptoms have continued to the present day virtually unabated and this is partly related to returning to work in a variety of forms i.e. the original condition has never really settled. I am not sure whether the condition will ever settle but this would be better handled by a rheumatologist rather than an occupational physician. Finally, in my opinion, it would appear that this gentleman's shoulder symptoms were precipitated by work related injury consistent with occupational over use syndrome and that his ongoing problems have related to this. On balance therefore I would regard this as an occupational disease and the natural history does not really support the idea that this man's symptoms are a natural process of ageing, particularly as other joints, often more prone to injury such as spine and hips in overweight people, are not so affected." Dr Gillies' opinion tended towards the probability that the claimant suffered an occupational overuse injury related to a short period of work in 1991, the symptoms having appeared after about one month during which he had been working intensively, keeping up with younger workmen and working with his arms above his head fixing jib board or pinex tiles to ceilings with an electric stapling gun. For the reasons which he expressed, Dr Gillies did not favour the conclusion that the claimant's symptoms were part of the natural ageing process - 3 . A review of the Corporation's decision was conducted on 14 November 1995. The review officer was confronted by a conflict of medical opinion which she resolved in favour of the Corporation, expressing reasons why she preferred the opinion of Dr Ching. After the filing of this appeal, the appellant was examined by Dr Julian Kirk, rheumatologist, who provided a long report dated 3 October 1996 and a supplementary report dated 4 October 1996. Dr Kirk obtained a detailed work history going back to the period from 1960 to 1980 when the appellant was engaged in the building industry doing work similar to the kind of work which brought on the pain symptoms in 1991. Dr Kirk said: "... The work he was doing in the 1960s and 70s was no different from this work except that it did not cause pain. To me this implies that it is not so much the work which has been the causation of the problem but rather the state of the shoulder which could tolerate identical work in the 1960s and 70s but not tolerated in the 1990s. X-rays of the shoulder are a poor way of assessing degeneration except when it is severe in the elderly and of longstanding and it more implies that there is a natural stated deterioration of the shoulder if pain comes with work at the age of 53 which did not occur in work at the age of 35, even though the work was of an identical nature. It would, therefore, seem to be the state of the shoulder tendon which was easily irritated rather than the nature of the work which caused the pain on this occasion and the difference in the two events lies in the area of aging." That opinion seemed to introduce a third explanation for the symptoms. While Dr Ching had found the ageing process as the effective cause, and Dr Gillies favoured a diagnosis of overuse syndrome occurring in 1991, Dr Kirk dealt with both possible causes and concluded there was an injury by way of tendon irritation in 1991 which occurred because the appellant's shoulder was not as resilient as it had been when he was younger. Dr Kirk reported the appellant's subsequent history of a less active lifestyle during the intervening years since 1991, and he described the result of clinical examination which confirmed that the appellant still suffered pain and limitation in movement, a continuation of the symptoms which had developed in 1991. He said: "... that the fact that this happened and that the shoulders did not recover after this fairly brief period of building 2 town houses and are just the same problem and work intolerant now as they were in 1991 implies a change in the shoulders, as the effect of the period of building in 1991 would have worn off by now if it were purely work . related. Tendon degeneration of the extent that causes chronic pain lasting for 5 years could not be blamed on a single house building activity, particularly in a man who is used to that kind of activity. The implication is that something has happened to this man's rotator cuff tendons over the period while he has been building which was only evident after he rested, doing non active building and then resumed active building in his 50s." Dr Kirk tended to agree to some extent with Dr Ching. He then commented on Dr Gillies' report. He indicated that the symptoms in 1991 were not likely to have been an aggravation of an underlying condition because symptoms would then be likely to have settled after work had ceased. In a postscript, Dr Kirk stated that the possibility that the tendon degeneration developed during the period 1962 to 1980 is unlikely because there was no pain at that time, and the 1991 x-rays did not reflect earlier tendon degeneration. In his supplementary letter on 4 October 1986 Dr Kirk dealt with the possibility that there was an existing tendon degeneration that was aggravated in 1991, - 4 . with the long-term consequence that the appellant still suffers from the symptoms. He said that it could be argued that there was no shoulder pain until the period of activity building in 1991, and if he had not done that particular activity it is quite likely that he would never have suffered pain since. Dr Kirk referred to the difficulty in diagnosing tendon degeneration. It is not normally visible on x-ray and it is not always painful unless it is aggravated and brought to light by an activity. He postulated that it might even have been caused by overuse from work such as that which the appellant did in the 1960s and 1970s, and that it might only have appeared when, at the age of 53, he did the aggravating work in 1991. He considered that age 53, the appellant appearing to be an otherwise fit man, seemed unusually early for degenerative changes to have occurred through ageing, a factor which tends to support the possibility of a silent degeneration due to previous overuse during the two decades to 1980. The 4 October letter is a discursive letter which is quite helpful in understanding the competing probabilities in this case. Dr Kirk appeared to shift back towards the opinion of Dr Gillies. Finally he said: "A good deal of this is hypothetical but it is true when you make the point, that this man had no pain in his shoulders until he started building in 1991 and very rapidly developed shoulder pain from overhead use of the arms and the main reason why the rheumatologists have supposed that there is some underlying shoulder degeneration not previously present, is that the pain failed to settle as it would have done with normal tendons. Perhaps there might be an apportionment of blame between the work and natural degeneration or perhaps it can all be put down to the work involved in shoulders which appeared normal when Mr Rodgers started the job and it was this work which precipitated his current problem. There is no way of telling whether his problem might have appeared later or not but no particular reason to expect that without work related factors the pain would have, at some time, appeared later inevitably. People who build do not always, in fact only a small proportion I imagine, develop shoulder tendon pain and the argument set down in my report really hinges to a large extent on the failure of the pain to settle and I would like to temper this by stating that without a work related factor of some strength, shoulder tendinitis which has become chronic would be unusual to appear at the age of 53 without occupational connections, either in the earlier years or at the time the pain first appeared." Dr Kirk's supplementary letter was prompted by questions from the appellant's solicitors directed at the proposition that the whole process of tendon degeneration was work related. Dr Kirk was prepared to acknowledge that possibility, but he continuously expressed the reservation that an overuse pain syndrome in the shoulders was likely to subside, and he continued to be puzzled by the fact that the symptoms continued for some four or five years. The Corporation submitted Dr Kirk's opinion to Dr Ching who reported on 25 August 1996: "I can only therefore give my opinion based on probability. As per Dr Kirk's handwritten comment following his first report, I think it is unlikely that a tendon degeneration did develop in the period 1962 to 1980 because there was no pain at that time, and the 1991 x-rays were normal. We are therefore left with a possibility that his current shoulder problem was substantially caused by the period of building in 1991, and again I think this is extremely unlikely because of the continuing - 5. chronic pain after a brief period of house-building activity. In my experience in dealing with patients with Occupational Overuse Syndrome (OOS) (and this experience has been considerable since 1991) patients who develop shoulder problems secondary to occupations following a brief period of hard repetitive activity, normally recover fairly quickly within a few months with appropriate treatment such as steroid injections." Important considerations that can be extracted from the medical reports are, first, that it is significant that there was no pain experienced before 1991 which tends to discount tendon degeneration caused by building during the previous 20 years, and secondly, the fact that the 1991 symptoms did not abate is inconsistent with the symptoms having been caused by an overuse injury in the period of a month or so during which the appellant was engaged in intensive building work. It appears that if the appellant had suffered work related tendon damage during his 20 years as a builder, he should have experienced pain because he was doing the very same kind of work which he resumed in 1991. In the intervening period between 1980 and 1991 it seems likely that he suffered some extent of degeneration that was aggravated by the intensive work in 1991. The doctors have not suggested that the 1991 symptoms did not concern a separate injury, that is to say an injury in addition to any tendon degeneration that was already present. It was accepted as an injury at the time and it seems to have been an injury involving irritation of the shoulder tendons, but it is now thought not to have been the sole cause of the appellant's trouble. In hindsight, and with the benefits of the reports prepared some years later, the acceptance of the claim at that time appears to have been a correct decision. The weight of medical opinion is that overuse pain symptoms would have been unlikely to continue until the present time. While there may have been a probability in 1991 that the appellant suffered personal injury by accident, the same cannot be said in 1995 when the Corporation ceased weekly compensation. Counsel for the respondent submitted that Dr Ching's opinion should be given due weight because he is a rheumatologist and well-suited to give an opinion on rotator cuff syndrome. The respondent therefore relies on Dr Ching's opinion that the ongoing processes in the appellant's shoulders are the result of natural degeneration due to age rather than a result of an episode of repetitive work in 1991. The respondent submits that Dr Kirk's report lends support to that of Dr Ching although it is not expressed in any positive terms but rather deals with the range of possibilities. The respondent's submissions concerning the weight of medical evidence are sound. The respondent goes on to submit that this is not a case where accidental factors have caused an incapacity that would not have otherwise occurred at that time. In Ngaruhe 83/95 and Campbell 113/95 incapacity was found to have come about by reason of personal injury even though the incapacity would not have occurred but for an underlying degenerative condition. The respondent says that this is not such a case, or if it was in 1991 it is not now. I think that the medical opinion does indicate that incapacity was caused in 1991 through personal injury and that the incapacity continued so that the difficulty now is to decide whether the consequences of the injury have abated for all material purposes, and whether the appellant's present condition is in fact due to degeneration of shoulder tendons before 1991, whether work-related or not. - 6- Counsel for the appellant, in his submissions, first examined Dr Ching's original diagnosis in which he said that the appellant belonged to the age group in which rotator cuff lesions of the shoulders are most common. He submitted that Dr Ching only tentatively endorsed the diagnosis that the ongoing process in the appellant's shoulders were a result of degeneration due to age. He submitted that Dr Ching was in no better position than Dr Gillies to give an authoritative opinion and that Dr Ching did not expressly rule out the possibility that the ongoing symptoms were a result of the original injury. He submitted that Dr Ching, as a rheumatologist, was a specialist in the field of treatment but not necessarily in the field of analysing the cause of an injury which is a speciality of occupational medicine. 'In that area, Dr Gillies should be regarded as having special expertise. He submitted that Dr Gillies had given an opinion without expressing serious reservations. He referred to a passage in Dr Kirk's report of 4 October 1996 stating that the appellant may not have developed symptoms from tendon degeneration but for the period of intense building activity after a period of sedentary work. He referred to evidence given at the review hearing that the appellant had no family history of rotator cuff tendon degeneration, and that it is likely that either no natural degeneration occurred at the age of 53 or that any natural degeneration which did occur was brought forward dramatically as a result of an injury in 1991. Counsel for the appellant submitted that the principles in the decisions of Standring Decision 118/88 and Peters Decision 172/88 apply in this case. In Peters Mr B H Blackwood Esq. referred to Mccarthy v Union Steam Ship Company of New Zealand Lid [1916] NZLR 1154 for the principle that the right to compensation will not be affected only because a person's physical condition is such as to render him particularly susceptible to grave consequences from an accident which in a normal healthy person would have not such consequences. He said: "The case often cited in this area is Wallbutton v Accident Compensation Commission [1983] NZACR 629 where Davison CJ had to consider the claim by a woman who had had trouble with her back for some years. She bent down to pick up some milk bottles and immediately felt low back pain which disabled her for some nine months. The learned Chief Justice found that there was medical evidence to show that what had occurred was something more than just strain in a diseased back and that the appellant had suffered some extra strain which caused the disability and that that was an accident The principles to be distilled from cases such as Wallbutton are simply that the Authority must look at the nature of the trauma and the nature of the underlying condition, and endeavour to determine whether the resulting symptoms were caused by the accident or were simply the underlying condition expressing itself." That decision is often a difficult one when no clear medical advice is available to the Court. Counsel for the appellant submitted that it is open to find that but for the accident any degenerative process may have manifested itself at a much later time, or that the appellant is suffering from both a degenerative process and the residual effects of the accident. That is true. It is a matter of weighing the evidence to see whether that is a probability, or whether it is probable that the symptoms are now attributable to a degenerative condition that would probably have existed independently of the injury. In this case the enquiry must be directed to the cause of the appellant's symptoms in 1995 rather than in 1991. I consider that the rheumatologists' opinions must be given a - 7- good deal of weight. It is not difficult to reach the conclusion that the appellant's present incapacity is caused by a degenerative condition. The difficult question is whether the symptoms of that degenerative condition would not be causing incapacity under the 1992 Act but for the fact that they have been precipitated or advanced by the injury in 1991. Dr Kirk said "there is no way of telling whether his problem might have appeared later or not but no particular reason to expect that without work related factors the pain would have, at some time, appeared later inevitably". He gave the opinion that it was not inevitable that the pain would have appeared. I take it that he meant that it would not inevitably have appeared without being precipitated by means of a process such as that which occurred in 1991. In an earlier passage in the same report, after saying that the appellant's pain was not a chronic back pain type but rather a pain which appears through overuse and which indicates degeneration or chronic degeneration of the shoulder tendons, he said: "The fact remains that it could be equally well argued that there was no shoulder pain until the period of activity building in 1991 and if he had not done that particular activity it is quite likely that he would never have suffered pain since. This can never be tested unless he were to have been free of pain and then to undergo provocative testing with activities later." Those passages tend to support the appellant's case that in 1995 there was still an injury induced incapacity. The possibility that the incapacity may have manifested in due course anyway is not able to be tested. The medical opinion in this case includes the opinion of two corporate medical advisors who inclined to accept the opinion of Dr Ching. None of the medical views are conclusive, because they do not all address the precise question before the Court. The only medical view that deals with the ultimate issue is that of Dr Kirk in his letter of 4 October 1996. I do not think that the weight of medical opinion is sufficiently strong to justify a finding that the appellant's condition would be as it is if the symptoms had not been precipitated by the 1991 injury. The 1991 injury probably remained the effective cause of incapacity when the Corporation's decision was made on 20 July 1995. It is open to the Corporation to review the matter again from time to time, and of course the amendments to s 37 of the Act may now have an affect on the outcome. For those reasons the appeal is allowed. The appellant will have costs of $600. DATED at WELLINGTON this 11 th day of Anguel 1997 D A Ongley District Court Judge