Luyk v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 052/2004 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN YVONNE LUYK (AI 199/02) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 19 February 2004 APPEARANCES Mr J West, Counsel for Appellant. Mr M Lawson, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE 199.02 (pg) 2 [1] The issue in this appeal concerns the correctness of the Respondent's decision of 31 August 2001, whereby it suspended entitlements to the appellant on the grounds that her then medical condition was not attributable to the personal injury for which she had been granted cover in June 1995. [2] The background facts relevant to the issue in this appeal may be stated as follows: • In May 1995 the appellant, then aged 55 years, was employed as a nurse in the geriatric unit at Paraparaumu Hospital. • On 15 May 1995 the appellant suffered a right groin strain whilst lifting a patient. • The appellant commenced receiving weekly compensation as she was certified as being incapacitated. • Conservative treatment did not resolve her pain condition and she was referred to specialists. • An MRI scan taken in June 1996 showed considerable osteoarthritis in L3/L4, L4/L5 and L5/S1 and with a disc prolapse at L3/L4. • In addition to experiencing groin pain the appellant was also experiencing low back pain. • In March 1998, Peter Hunter, Orthopaedic Surgeon, carried out a laminectomy of L3/L4 which was considered successful. • The appellant's right groin pain continued. • Subsequently an MRI scan showed widespread disc degeneration with no further significant protrusion. • The appellant continued to experience pain in her groin and in her right leg. • In August 2001, the appellant was referred to Dr John Reekie, Occupational Medicine Specialist, for assessment and Dr Reekie made 199.02 (pg) 3 two reports to the respondent on 29 May 2001 and 17 August 2001 respectively. • As a consequence of Dr Reekie's advice the respondent issued its decision on 31 August 2001 suspending entitlements to the appellant on the grounds that her current medical condition was no longer attributable to the injury for which she had been granted cover. • The appellant sought a review of that decision and a review hearing took place on 19 March 2002 at which the appellant was represented by Counsel. No further medical evidence was introduced for the purposes of the review. • In a review decision dated 12 April 2002 the Reviewer found that the medical evidence determined that the pain in her groin was referred pain from her back and her back condition was that of osteoarthritis and not attributable to injury by accident. The Reviewer confirmed the respondent's decision to suspend entitlement. • For the purposes of the appeal to this Court no further medical evidence has been sought to be introduced. [3] This is a case where the respondent has made a decision pursuant to Section 116 of the Act acting on medical advice that the appellant's pain condition was not attributable to the groin injury for which she received cover. That being the case it requires the Court to consider the medical evidence which relates to that issue and to the decision made. The Medical Evidence 1. Report from Mr S M Rao, Orthopaedic Surgeon, dated 19 June 1995 to appellant's G.P. The appellant was referred to Mr Rao by her G.P., and he saw and examined her some six weeks after the lifting accident. Mr Rao noted that the pain was initially medial and 199.02 (pg) 4 deep in the groin but had moved to the mid-inguinal area. He also noted that the appellant had a past history of recurrent back strains from which she had recovered. Mr Rao could not detect any hernia and he was of the opinion that there was no significant muscle strain and that it would settle. 2. Report from Mr Kenneth W Menzies, Specialist Surgeon, dated 11 July 1995 to appellant's G.P. Mr Menzies examined the appellant to determine whether there was any evidence of a hernia and his advice was that there was no clinical evidence of a right inguinal or femoral hernia. It was his advice that the seat of her pain was too lateral for a hernia to be a consideration. He supported Mr Rao's presumption that the appellant had sustained a muscle strain injury. 3. Report from Mr Peter Hunter, Orthopaedic Surgeon, dated 24 April 1998 to appellant's G.P. Mr Hunter had performed a laminectomy of L4 and the decompressing of the area of spinal stenosis was demonstrated on the MRI scan he had obtained. He noted a satisfactory decompression had been obtained. In this follow-up report he noted that the appellant still complained of pain in the groin area. He advised as follows: "From the point of view of her back she has made good progress. She has a diffuse ache in the right groin area which I think is probably referred pain. Most of the neurological pains in her legs seem to have gone." 4. Report from Mr Peter Hunter, Orthopaedic Surgeon, dated 28 August 1998 to appellant's G.P. 199.02 (pg) 5 Mr Hunter reviewed the appellant following a recent bone scan and repeated MRI. He noted the appellant still complained of chronic generalised spinal pain radiating into the right groin. He then stated as follows: "The bone scan supports some degenerative changes in the facet joints but more particularly she seems to have a significant degree of sacroiliitis. The MRI shows widespread disc degeneration with no further significant protrusion, there is a suggestion of some lateral recess narrowing at the level above her laminectomy." Mr Hunter suggested a pain management course. 5. Report dated 13 January 2000 from Mr Rao to ACC. Mr Rao reviewed the appellant's condition at the respondent's request. He noted that she had been recently evaluated by Mr Stuart Mossman, Consultant Neurologist. Mr Rao then stated: "In essence his summary is quite accurate in that this lady has a chronic pain syndrome. Clearly her problems have dated back to her injury of 1995 when lifting a patient and despite a number of conservative means of treatment, including laminectomy and surgery performed by Mr Hunter, two years ago, she has not made a great deal of improvement. The definitive diagnosis is virtually impossible for this lady with her unusual pain presentation. Clearly, however, a substantial part of her incapacity is related to the accident although to what extent it would be very difficult to ascertain." 6. Report from Dr John Reekie, Occupational Medicine Specialist, dated 29 May 2001 to ACC. Dr Reekie advised that it was not medically plausible to suggest that the widespread degenerative changes seen in 1996 were caused by the lifting event of 1995. Dr Reekie noted that orthopaedic and neurological specialist assessment had shown 199.02 (pg) 6 there was no significant nerve root pathology still existing in her lower legs. Dr Reekie was of the opinion that she could not return to the workforce in an active nursing role. 7. Independence Allowance Assessment by Dr Peter Karsos, dated 20 June 2001. Dr Karsos was provided with all the medical reports that had been obtained from the appellant and he noted that she was complaining of sharp pain in her lumbar spine and right groin. Dr Karsos gave as his medical summary as follows: "The client suffered a right groin injury in 1995 when helping to lift a heavy patient. No local cause could be found for the patient's groin pain despite intensive investigation. Investigation of the lumbar spine revealed degenerative spinal stenosis that was thought to be contributing to the client's pain. The laminectomy at L4 failed to resolve the condition. Presently the client reports spinal pain and bilateral lower leg pain with bladder and bowel incontinence. I have explained to the client that I cannot attribute her present incapacity to the injury of 6 May 1995. The spinal osteoarthritic changes pre-date the injury. Furthermore, the initial complaint of groin pain was unlikely to be lumbar radicular pain. Facet joint pain is reported to refer to the groin gluteal area and upper leg. The client is rated for a back injury without radiculopathy." 8. Report from Dr John Reekie, dated 17 August 2001, to ACC. Dr Reekie provided a further report after being given further medical information relating to the appellant's medical history, including further letters from Mr Rao and Mr Hunter. Dr Reekie again reaffirmed his advice that the multi-level degenerative changes could not have been caused by the 1995 strain injury. He then went on to state: "While the lifting incident could have caused more nerve root irritation with radiating pain to the groin by aggravating the underlying degenerative condition or causing a small disc prolapse, this accident could not conceivably have significantly caused the findings diagnosed in Mrs Luyk's lumbar spine. 199.02 (pg) 7 I therefore believe on the evidence provided that her ongoing incapacity and the continued requirement for medical, surgical and psychological treatment is for an underlying medical condition of multi-level degenerative spine disease that is not causally linked to any accident event." 9. Report from Dr Stuart Mossman, Neurologist, dated 7 February 2000 to appellant and her G.P. Dr Mossman noted the MRI scan of December 1999 and advised that there was no abnormality to explain her predominant complaints of right lower abdomen, quadrant or flank pain or back discomfort. He advised that there did not appear to be any structural or surgically remedial problem for her pain. Submissions [4] In his submissions to the Court, Mr West advised that the appellant was not asserting any right to entitlements for the multi-level stenosis in her lower back. He accepted that this was not a condition that had been caused by the covered injury. He submitted, however, that the groin pain was a separate condition and had arisen at the time of the lifting incident and was the continuing cause of her incapacity. He submitted that this condition was not attributable to any degenerative state of her lumbar spine but rather, was the direct result of the lifting injury. [5] Mr Lawson, Counsel for the Respondent, submitted that the appellant's condition was associated with the multi-level degenerative changes and that her condition 199.02 (pg) 8 was as diagnosed by Dr Hunter, a chronic pain syndrome, and that this was not in any way accident related. Counsel submitted that the effects of any covered injury were now spent. DECISION [6] In cases such as this, there is an onus on the appellant to establish, on the balance of probabilities, that she has a continuing entitlement to benefits under the Act by establishing that the criteria for those benefits are attributable to the personal injury for which cover was granted. [7] In the present case the principal entitlement formerly being received by the appellant was weekly compensation and that was being given to her on the basis that the injury for which she had received cover was still incapacitating. It is the respondent's contention, however, that whilst it accepts that the appellant is still presenting with an incapacitating condition, nevertheless that condition is not attributable to the injury for which she was granted cover. [8] The medical evidence provided within a matter of weeks of the accident, backed up by subsequent X-rays and MRI scans, identifies that whatever the injury was that the appellant suffered it was not a structural injury involving the lumbar spine and nor was it an injury associated with a spontaneous hernia. Both those possibilities were discounted by specialist investigation from Mr Rao and Dr Menzies respectively. [9] I have carefully considered the medical evidence in the light of Mr West's submission contending for a clear distinction between the spinal stenosis and the groin pain but at the end of the day I find that the two cannot be said to be separate and distinct but rather the latter is related to the former. 199.02 (pg) 9 [10] In the course of the medical reports there are several references to the fact that the pain in the groin area is referred pain from the appellant's lumbar spine and from the sacroiliitis which has been identified in particular by Mr Hunter. [11] I find that it is the generally accepted opinion of the specialists, namely Dr Reekie, Mr Hunter, Mr Rao and Dr Karsos, that the appellant's groin pain is in fact referred pain from her osteoarthritic condition. Mr Mossman has excluded all other possible causes in his assessment of the appellant's condition and there is no evidence of it being from any other cause. [12] As earlier noted, the onus is on the appellant to establish the right to an ongoing entitlement, and I find that the evidence which has been presented in this appeal does not establish to the degree of probability that the appellant's continuing incapacitating pain condition is attributable to the groin strain suffered by her in May 1995. The specialists who investigated the injury at the time noted that such an injury would settle in a comparatively short space of time, and there is simply no evidence that the groin pain is still as a consequence of the strain but rather it is referred pain from the facet joint hypertrophy identified in the MRI scans. [13] For the foregoing reasons, therefore, the respondent was correct to suspend the appellant's entitlements pursuant to Section 116 of the Act and this appeal is accordingly dismissed. 199.02 (pg) 10 DATED at AUCKLAND this 19th day of March 2004 M J Beattie District Court Judge 199.02 (pg)