Wilson & Horton v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 159 197 HELD AT CHRISTCHURCH 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 WILSON & HORTON LIMITED Appellant (Appeal No. DCA 254/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 24th day of June 1997 APPEARANCES John Greene for appellant Rebecca Irving for respondent DECISION OF JUDGE D A ONGLEY The question in this case is whether the claimant suffered a work injury on 5 July 1991. The claimant, Mr Turner, suffered an injury from an accident arising out of employment with the appellant in October 1991. That accident occurred when he was lifting a large steel ring on to a machine. The injury was diagnosed as a lumbar disc prolapse. A CT scan showed marked generalised bulging of the annulus of the L4/5 disc probably displacing the left L5 nerve root posteriorally to a moderate degree. The scan showed focal herniation of disc material at L5/S1 with pronounced distortion of the dural sac and almost certain displacement of the left S1 nerve root. He had a sequestrated lumbar disc prolapse removed on 29 November 1991. He was eventually assessed as having 20% permanent disability under s 78 of the Accident Compensation Act 1982. - 2 - In October 1994 Mr Turner suffered further accidental injury at the same site as the 1991 injury. He was then certified fit for selective work. In June 1995 he suffered further back pain and sciatica. It was difficult to establish whether this occurred as a result of an injury at work, or from an injury while playing squash, or from some other cause. In any case, it appeared to be a further injury at the L4/5 level. On 4 July 1995 Mr G M MacDonald, neurosurgical and spinal surgeon, wrote: "I write concerning Mr Turner, a patient whom I first met in 1991 at which time he had a three month history of left sciatic pain, and signs suggesting involvement of the left S1 nerve root. A CT scan confirmed a disc prolapse at the left L5/S1 level, and surgical decompression was undertaken in the latter part of 1991 with reasonable results. The CT scan at that time also showed a significant annular bulge at the L4/5 level, this indenting the theca on the left side of the neural canal, and displacing the L5 nerve root backwards Mr Turner has continued to work as fitter and turner in Wilson and Horton, this involving heavy work activity frequently bending over the presses. He described an episode of low back pain in November 1994, this subsiding with conservative management In the more recent three weeks, probably associated with work activity, he has had a further episode of severe low back and left sciatic pain, and now has a left L5 radiculopathy. I suspect that he may have had a disc prolapse now at the L4/5 level, and write to ask if the Corporation would fund a further CT scan to look at this disc space. Mr Turner's L5 radiculopathy is now virtually complete, and it is difficult to know whether surgical decompression will help to aid regrowth of the nerve root, but I believe that this must be considered." Dr Graeme Breckon, branch medical adviser, wrote on 17 July 1995: "It is becoming apparent that there is no clear history of a specific event being responsible for his recent exacerbation of left sided sciatic nerve pain. There is mention of a squash game and also Mr McDonald notes he continues to lift heavy objects at work Mr Turner has previously indicated in his Section 79 submissions that he had to stop playing squash due to his back injury. Mr Turner, by phone today, has clarified the ongoing nature of his problem - he has been awarded 20% PD Re his lumbar disc injury, he has had ongoing twinges of back pain and 3 weeks prior to his accident he had to go home from work early due to his back pain. Initially after squash apparently he did not note increased back pain but by 12 June 1995 was suffering pain in left leg I believe the best summary of all the data is that this man has ongoing back problem relating to L5/S1 disc injury and L4/5 disc injury. He had previous surgery for left sided nerve group pain and had a definite disc protrusion treated surgically by Mr McDonald. - 3 - His PD report initially 10% increased to 20% after he received the award indicated ongoing problems. I believe his current left sided sciatica relates significantly to an aggravation of his old injury via an uncertain process but probably occurring in a physical activity - yet probably not due to a new specific accidental injury. I believe the Corporation should continue its efforts to determine if there was a new accident and the GP and accident clinical reports may assist us Meanwhile, I recommend the current problem be considered as a deterioration of the 5/7/91 accident. I recommend approval of the CT scan as requested by Mr Mcdonald." Mr MacDonald wrote again on 26 July 1995: "More recently Mr Turner was referred back to see me with a history again occurring when working on the printing presses at Wilson and Horton, and developing low back and left sided pain. The initial episode subsided after some weeks in the latter part of 1994, but his pain returned after playing squash in the recent weeks, the pain initially being intense, and associated with a left sided foot drop. The pain has recently subsided but he has developed in addition to a left sided foot drop some sensory dulling in the left L5 dermatome distribution. A CT scan has demonstrated probable soft tissue, presumably sequestrated disc, behind the body of L5. I am uncertain whether this has come from the previously explored disc space, L5/S1, or from the disc above this. I believe however that it is likely to be compromising the left L5 nerve root, and as Mr Turner feels he could not return to his work as he is, I have suggested surgical decompression would be reasonable to relieve further episodes of pain, although there is no guarantee that the footdrop will resolve." The Corporation requested clarification from Mr MacDonald who wrote on 6 December 1995: "I saw Mr Turner again in July of this year, and at that time he described further low back ache associated with putting the new printing presses into the new Wilson & Horton firm in the latter part of 1994, and he also described further left ankle pain following playing squash earlier this year. At the time I saw him he had a left sciatic syndrome with quite marked weakness of the movement of the left ankle, and further investigation confirmed that he had sequestrated further disc material into a neural canal, probably from the same disc injury. This was re-explored in August of this year and further sequestrated disc material removed. I think it is almost impossible to know whether the further disc injury was associated with work activity putting in printing presses, or associated with playing squash. It does appear that there was a significant exacerbation of pain following playing squash and that the weakness of the ankle appeared at that stage, but I note that he was off work for 4 weeks after putting in the presses in November 1994. Either stress could be responsible for the reoccurrence of his disc prolapsed." - 4 - The Corporation also obtained information from Mr Turner's general practitioner who said that after the October 1994 event Mr Turner went back to work despite medical advice, and he continued to have symptoms of back pain. Dr Egglestone, the general practitioner, said that Mr Turner thought that he had strained his left ankle but that had been shown to be an aggravation of sciatica and pain referred to the left leg. Mr Turner had associated the apparent ankle strain with a game of squash. That is the basis of a factual question that concerns the appellant, because, it is submitted by the appellant, the aggravation injury suffered around June 1995 could well have been a non-work injury. On 20 March 1995 Dr Breckon advised the Corporation: "If one looks at the reports of Dr Egglestone and Mr McDonald as a whole the impression gained is that the 1991 injury is largely responsible for the back problem. The previously injured disc was re-injured in late 1994 while installing new printing presses, a subsequent exacerbation of his sciatica was associated with playing squash. The CT scan of 19/7/95 localises the significant injury to the L5/S1 disc which was the original site of injury in 1991. One can think of a disc rather like a toothpaste tube, when full and capped it can take pressure - if one however injures the annulus fibrosis of the disc it is like taking the cap off the tube. Subsequent or simultaneous loading of the spine can squeeze out the contents of the disc (the toothpaste). Another force may squeeze out more - the main cause of ongoing prolapse however, is the missing cap of the tube i.e. the injury to the annulus fibrosis (which dates to 1991). I hope the above discussion can aid a decision on experience rating." At the review hearing on 4 July 1996 Mr Turner told the Review Officer that he had been suffering pain during 1995 and one morning woke up with extreme pain in his left ankle. He did not connect it with his chronic symptoms, and when he was asked by a doctor on emergency calls what he had been doing over the last week, he mentioned the game of squash. His ankle was x-rayed and no fracture found. It was not until he consulted his doctor and a physiotherapist that he was informed that the pain was connected with disc problems. He told the Review Officer that two weeks before the squash game he had gone home from work with a numb feeling throughout his whole body which was a sensation he usually connected with the onset of back pain. explained that he had not played a game of squash but that he was showing someone "how to hit the ball" and was not playing competitively. He had been an active sportsman before his 1991 injury, and since then had not been playing squash or other sports but went to the squash club to keep up social contacts. The Review Officer stated that he found Mr Turner an honest and straightforward witness. He considered that Mr MacDonald's statement of 6 December 1995 should be given less weight, having regard to Mr Turner's explanation that he was not playing squash and that the squash incident was only accidentally associated with the onset of pain. The Review Officer analysed the medical evidence and concluded that the pain and disability in 1995 was connected with further deterioration of the L5/S1 level, and not with the disc prolapse at 14/5 which Mr MacDonald had suspected. The Review Officer placed greater weight on the fact that Mr Turner had experienced symptoms before the squash incident. The logical process adopted by the Review Officer was to - 5. accept the alternatives suggested by Mr MacDonald, that is to say that the new incapacity was connected with the squash game or the new work injury in 1994. Bearing those alternatives in mind, he then resolved the matter by reference to the medical material and Mr Turner's own evidence. His finding was that the Corporation's decision attributing incapacity in 1995 to the 1991 injury was confirmed. That finding must have been intended to mean that the incapacity related to the accident in October 1994. The evidence of the Mr Turner that the Review Officer accepted is recorded in the transcript of the review hearing. Mr Turner said that after the 1994 accident he was in some pain and went back to work on night-shift when requested to do so and against his doctor's advice. He said that he continued to feel very uncomfortable until one morning he woke up in extreme pain. His wife took him to see a doctor handling emergency calls and the doctor asked what he had been doing over the last week. Mr Turner said that the only thing he could think of was a game of squash. He thought it was for that reason that the doctor recorded that it was a squash injury. Of course at that stage the injury was considered to be an ankle injury and was not associated with sciatica. Mr Turner stated in his evidence that the ankle was hurting for quite a few weeks before the extreme pain occurred. It is implicit in that evidence that the first doctor who examined him did not consider whether the injury could be disc related, and did not make more than the most cursory enquiry about the cause of the injury. In my view the Review Officer's finding was not unreasonable. There were no symptoms able to be connected squarely with the squash incident and Mr Turner's evidence at the review hearing concerned a continuity of symptoms from the October 1994 injury until the flare-up in June 1995. On the whole of the available evidence, and if the account given by Mr Turner is accepted, as it was by the Review Officer, it appears probable that the aggravation of symptoms in June 1995 was not caused by a new injury. The appellant has submitted that the possibilities can be no better than even, and it cannot be said that there is a probability that incapacity was the culmination of worsening symptoms stemming from the October 1994 accident. The view taken by the appellant is one that can be maintained on the evidence. The conclusion reached by the Review Officer cannot in my view be said to be against the weight of evidence, having regard to the advantage the Review Officer had in evaluating the oral evidence of Mr Turner. For those reasons the appeal is dismissed. DATED at WELLINGTON this 5M day of August 1997 D A Ongley District Court Judge