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Accident Compensation Cases

Duncan v Accident Compensation Corporation (DC, 17/11/00)

Judgment Text

Judge A W Middleton
The issue in this appeal is whether the respondent's decision of 21 June 1999 ceasing entitlements to weekly compensation was correct. 
The facts which gave rise to the appeal are that the appellant, who is now aged 60 years, suffered an injury to his back on 12 March 1998. In a letter from his General Practitioner Dr Mulholland, dated 22 April 1998 he stated: 
“I felt he had some disc pathology, whether it be a prolapse or inflammation. It is impossible to tell without an MRI. I do note that he has had two previous back strains up to ten years ago. I organised xrays of his back on the 24th March as he was not improving. These show arthritis of a moderate degree in the upper and lower lumbar spine but with marked disc narrowing at the lumbo/sacral level with lipping suggestive of long term back disease. As you are aware, while he does have pre-existing disease, it is possible to have an acute flare-up due to a twisting injury. The fact that he does have pre-existing bone and disc disease in his back consistent with his age may impair his rehabilitation. Whether it is gradual process or an acute injury it is not for me to decide but he certainly did have an acute flare-up. I suggest a referral to Simon Hadlow and an MRI which may help delineate the process further. ”
Following that letter Dr Mulholland referred the appellant to Mr A Grant, an Orthopaedic Surgeon, with an accompanying letter of 30 April 1998. In that letter Dr Mulholland stated: 
“He presented to me about a month ago with acute back pain. His signs and symptoms were consistent with a disc prolapse. I notice that in 1988 he was off on ACC for about a week with a low disc prolapse. 
It is now almost a month since I've seen him and although he has had gradual resolution of his symptoms he still is troubled with low back pain. I xrayed his back which as one would expect for a man of his age and occupation, showed chronic degenerative disc disease and disc narrowing with osteophyte formation. He does not have any neurological compromise in his limbs, and is otherwise fit and well. ”
An x-ray report provided to Dr Mulholland on 24 March 1998 by Dr R Harding, gave as his findings: 
“The films show degenerative change of moderate degree in the upper and mid-lumbar spine but considerable symmetrical narrowing of the lumbo-sacral disc space with lipping both anteriorly and posteriorly at this level. There is however, no vertebral disalignment. Bone texture is normal, apart from sclerosis due to degenerative involvement. ”
In a report dated 7 May 1998 Mr Grant stated: 
“X-rays were typically the back of a hard working man, with some anterior marginal osteophyte formation and a chronic lumbo-sacral disc lesion. The plain views also suggested the possibility of some canal narrowing at the L4-5 and lumbo-sacral levels, but this would require MRI scan for confirmation. 
At the present time Mr Duncan's symptoms appear to be settling reasonably well and I think would be the result more of aggravation of his pre-existing spondylosis by the nature of his work than any other factor. I certainly don't feel that there is strong evidence for a focal disc protrusion at this juncture, but would be happy to refer him later for MRI scan if there is any further failure to settle. The next question that arises is to his suitability for continued heavy work involving repetitive lifting and this would probably have3 to be a matter for trial and error. ”
In a report on the MRI scan performed by Manukau Radiology Institute dated 19 August 1998, it is stated: 
“Generalised early degenerative changes of intervertebral discs most marked at the L5-S1 level. No definite evidence of nerve root compression to explain right-sided symptoms. No evidence of spinal stenosis. ”
When he received that report Mr Grant provided a further report to the respondent which is dated 5 November 1998. In that report Mr Grant stated that: 
“As you are aware, Mr Duncan underwent MRI scan in Auckland in August. The scan did not support a diagnosis of lumbar stenosis. In addition, there was no evidence of any nerve root compression, but early degenerative changes were seen at all levels. A lumbo-sacral support was prescribed for Mr Duncan and he was advised to continue with light work. ”
“In the long term pain, if it persists, would more likely relate to his degenerative changes, as seen in the plain x-rays and confirmed on MRI scan. ”
The respondent then requested clarification of his report from Mr Grant who replied on 22 February 1999: 
“The question you ask is not a particularly easy one to answer but in general terms I would think it reasonable to postulate that responsibility for Mr Duncan's current situation could be shared 50/50 by the Corporation and Mr Duncan's spondylosis. I suggest this because Mr Duncan's symptoms came on in the course of his work with heavy lifting; it would be unfair to claim that a lumbar spine exhibiting some degenerative changes is incapable of being injured and in this instance Mr Duncan's spine did suffer an injury as a result of heavy lifting. However it must also be conceded that there was a degree of predisposition towards injury because of the pre-existing spondylosis and because of these factors I think it reasonable at this juncture to allot a 50/50 responsibility as outlined above. ”
The respondent then referred the appellant to Mr D E Allen, an Orthopaedic Surgeon in Hamilton, whose report of 19 May 1999 gave as his opinion: 
“In my opinion Mr Duncan's current condition is a reflection of degenerative change. 
In my opinion, from the history available, the episode in March 1998 was one of a number of aggravating episodes, and in itself would be playing little part in Mr Duncan's current condition. ”
On 21 June 1999 the respondent advised the appellant that pursuant to s 73(1) of the Accident Rehabilitation Compensation and Insurance Act 1992, it proposed to cease the payment of weekly compensation and entitlements as the medical evidence then held by it indicated that the substantial cause of his then incapacity was no longer a direct consequence of the injury he sustained in March 1998. The appellant applied for a review of that decision. In support of his application for review the appellant submitted a further report from Mr Grant dated 10 August 1999, in which he reported to Dr Mulholland: 
“I acknowledge that he does have a lumbar spondylosis, but this was asymptomatic prior to his injury last year and the symptoms induced by the amount of heavy lifting have proven to be resistant to treatment. ”
The appellant also submitted a further report from Dr Mulholland dated 27 August 1999, in which he stated: 
“Prior to March 1998 when I first saw Mr Duncan he had been asymptomatic, hadn't had any back pain for five years. I have seen him on at least a dozen occasions since this and have always been impressed with his integrity, his honesty, and his willingness to work. I have no doubt in my mind that his back pain is caused through personal injury by accident. 
I disagree with Mr Allan's statements that his pain is caused by degenerative change only. I think most 59 year old men would have degenerative disc and MRI findings similar to Mr Duncan's. However Mr Duncan's back pain is related specifically to the event of lifting a 25kb fuel tank. He had no symptoms prior to this in his back pain, and right sided sciatica has occurred since then. I believe Mr Duncan's symptoms and sciatica are consistent with disc irritation. Despite a need of MRI for acute disrupture, he still in my mind has problems associated with working at Taranaki Sawmills. ”
Dr Mulholland also attended the review hearing and gave evidence. The Reviewer concluded that the reports from both Mr Grant and Mr Allen demonstrated that the ongoing condition was substantially due to degeneration rather than the injury, the application for review was dismissed. It is against that decision which the appellant now appeals. 
The appellant was granted leave to adduce a further report from Mr Grant dated 22 August 2000, in which he stated: 
“It appears to be accepted by everybody that Mr Duncan had no symptoms prior to his episode of heavy lifting in 1988, and his back has been symptomatic since that time, i.e. Mr Duncan's symptoms date from a specific episode and have been present intermittently since, usually related to heavy lifting. 
The vexed question as to allocation of responsibility for ongoing symptoms arises and is not sensibly capable, in my opinion, of accurate determination in the sense that both the injury and the degenerative changes are obviously contributing to the current situation. In the first instance, it is possible that Mr Duncan's back may not have become symptomatic to this day had not the specific event occurred in 1988 but, on the other hand, one cannot claim that this is an absolute truth in the sense that his back may well have developed symptoms. However, I emphasise the fact that the MRI scan described only early degenerative changes, not moderate or advanced; I suspect most men at the age of sixty would have early degenerative changes described in their lumbo-sacral spine by MRI scan. 
In essence, I believe that the early degenerative changes in Mr Duncan's lumbar spine do play a part in his ongoing symptomatology but, emphasise that the ongoing back problems were initiated by trauma, and the part played by the same trauma in their continuation cannot be ignored. 
I would like to return to my earlier point that it would be perfectly reasonable, as I have suggested previously, that 50% of the responsibility for his ongoing incapacity be accepted by ACC and the other 50% by the natural degenerative processes, albeit at an early stage, seen in his lumbo-sacral spine. I feel it would be specious to speculate that either one or the other was a predominant cause, and any such claim would likely to be quite unprovable one way or the other. 
I am sorry I cannot be more specific than this but, I still regard this allocation of responsibility as being the most reasonable and realistic resolution of the current situation. ”
In her submissions, counsel for the appellant has submitted that the Court should place more reliance on the opinions of Mr Grant and Dr Mulholland rather than that of Mr Allen. It is submitted that Mr Grant and Dr Mulholland have been involved with the appellant from the date of the initial injury, whereas Mr Allen only saw the appellant on one occasion in May 1999 some 14 months after the initial accident. It is submitted that in addition to being the appellant's General Practitioner, Dr Mulholland has had experience as an Orthopaedic Registrar to Mr Grant. Counsel for the respondent submitted that the medical evidence establishes that the cause of the appellant's ongoing incapacity is no longer a direct consequence of the back injury, but is substantially due to degeneration. 
This type of argument has been the subject of numerous appeals to this Court. In particular I refer to a statement by Judge Beattie in Burke (198/98), when he said: 
“For the purposes of entitlement, the Act provides by section 10 that personal injury caused wholly or substantially by gradual process, disease or infection is not covered (except arising out of employment). It is not personal injury by accident and neither is it personal injury caused wholly or substantially by the ageing process. Therefore, for the purposes of section 10 the medical question that needs to be asked and answered is whether the injury, or present effects of the same are as a consequence of accident or gradual process, disease, infection or the ageing process. If any of the latter, there can be no cover …  
If the trauma of the accident hastens or precipitates the onset of the symptoms of the pre-existing degenerative condition, then once the medical opinion is that it is the degenerative condition which is wholly or substantially the cause of the ongoing symptoms then cover is excluded. Whilst the physical effects of the trauma are present, ie: the twist or strain or suchlike, medical opinion is that it would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury proved to be causative. Once the effects of the injury receded and the medical opinion was that it was the residual degenerative condition which was wholly or substantially a cause of the ongoing problem, then at that time the claimant is no longer under the Act by virtue of section 10. ”
As stated by Mr Grant in his report of 22 August 2000, the issue of responsibility in this type of case is a “vexed” question. On the one hand Mr Grant goes so far as to split the responsibility equally between the result of the accident and the degenerative processes. That view is supported by Dr Mulholland. On the other hand, Mr Allen is of the opinion that the appellant's “current condition is a reflection of degenerative change.” Neither the appellant nor the respondent have sought an opinion from Mr Allen as to how far “a reflection” goes. Mr Grant goes as far as to say there is an equal division of responsibility but all his reports incline to the view that it is the result of the accident which is responsible for the ongoing symptoms. The issue as raised by Judge Beattie in Burke is whether the ongoing symptoms are wholly or substantially caused by the pre-existing degenerative condition. The respondent relies on the statement that it considers that the medical evidence indicates that the symptoms of the injury which the appellant suffered had resolved, and that degeneration is the substantial cause of the appellant's incapacity. 
The question of the meaning of the words “wholly” or “substantially” was considered by His Honour Justice McGechan in Treloare v Treloare reported in 1988 5NZFR page 209, when he said at page 213: 
“The word ‘substantially’ is inherently vague. Curiously, there appears to be no clear authority upon its meaning in the context of s 13(1)(a). Dictionary definitions of the word taken in isolation, and indeed the analyses arising in different contexts collected in eg Stroud ‘Judicial Dictionary’ 5th Ed 2352 and ‘Words and Phrases Judicially Defined’ 2nd Ed 140-141 in the end are little help. Taking the word by itself, ‘substantial’ ownership could seem to range from a bottom mark of 50% or perhaps even below up to anything slightly under 100%; the full gamut of appreciable ownership. However, the word ‘substantially’ is not to be taken by itself. It is to be taken in the context of the phrase ‘wholly or substantially’, and in the wider context of the purpose of the matrimonial property legislation as a whole. The phrase ‘wholly or substantially’ gives the first interpretative clue. It is a gradation. The word ‘wholly’ of course requires the entirety: the word ‘substantially’ then is used in the sense of some reduction downwards from that entirety. The word ‘substantially’ is not used in a context envisaging a building upwards from nothing; or in an objective comparative way. The use envisages a relatively marginal departure away from the entirety. ”
As stated by Mr Grant, the extent of the relationship of the accident and the pre-existing asymptomatic conditions raises a vexed issue. That issue has been the subject of an article in the “New Zealand Medical Journal” published on 28 January 2000 under the names of two well-known Orthopaedic Surgeons in Auckland, Messrs P A Robertson and O R Nicholson. In that article the authors refer to the fact that with age the spine degenerates slowly by itself, and they have stated: 
“Ageing and degeneration of the lumbar spine 
‘Degenerative changes in discs are ubiquitous among humans. The slow, unrelenting changes that are associated with disc degeneration begin in persons during their 20s. In fact, for the lower lumbar discs, the alterations concomitant with degeneration are usually present for a greater part of one's life than is the so-called normal state.’ 
Garfin and Herkowitz agreed that ageing and degeneration are closely linked and concluded it inappropriate to consider the degenerative disc as a disease state. With age the disc nucleus becomes dehydrated and the proteoglycan components change. Reducible collagen cross-links increase and the collagen type changes. This corresponds to macroscopic changes to the disc and intervertebral joints. The degenerate nucleus develops clefts. Annular fissures occur. The intervertebral disc loses height and the annulus bulges circumferentially. Reactive bone changes in adjacent vertebrae are manifest by end-plate sclerosis and the development of spondylophytes, osteophytes and/or traction spurs. Increased load born by the facet joints, secondary to disc height loss, may result in a picture of osteoarthritis within the synovial joints. This process of degenerative change or ageing is also referred to as lumbar spondylosis. ”
The authors considered the application of those findings and their relevance to the ACC legislation. Later in the article they refer to the issue of what constitutes “substantial” and state: 
“The definition of ‘substantially’ includes ‘to all intents and purposes; in the main’ (Oxford English Dictionary). It is the adverb of ‘substantial’‘being largely but not wholly that which is specified’ (Websters Dictionary). Therefore ‘wholly or substantially by the ageing process’ means that the total or main component of cause of personal injury (symptoms/disability) is the ageing process. In a hypothetical patient who is symptom-free prior to an accident, yet is found to have imaging evidence of pre-existing degenerative/spondylotic/ageing change in the spine, the main or substantial cause of the personal injury (symptoms/disability), or indeed the whole cause, is the accident. Had the accident not occurred the symptoms would probably (most likely/in all probability) not have developed. The substantial cause of symptom onset or personal injury is the accident — not the ageing process. ”
The authors' summary of the position which concludes the article was: 
“The purpose of the ARCI (1992) and AI (1998) Acts is to cover those who suffered from personal injury by accident. This purpose should not be distorted. This review does not aim to suggest that cover be extended to victims of disease. Equally it is inappropriate that imaging be used to detect asymptomatic, age-related change — or reveal asymptomatic abnormalities that do not place the patient at increased risk of symptoms over the general population — so as to unfairly deny coverage to the victims of accidents. This is particularly important to those who suffer personal injury to the lumbar spine where the cause is wholly or substantially an accident, and in whom, without the specified accident having occurred, personal injury (symptoms and disability) would have not been likely to occur. Physicians managing spinal disorders must correlate clinical findings with imaging studies when planning treatment. Those considering entitlement for cover under third party/ACC provisions must pay close attention to the history and clinical evaluation, correlating these with the investigation findings, and not assume that the abnormalities found on sensitive investigations are the cause of the symptoms. ”
The medical evidence indicates that Mr Allen does not go so far as to state categorically that the appellant's ongoing symptoms are substantially the result of degenerative change, but merely a “reflection” of that change. On the other hand Mr Grant attributes 50 per cent of the symptoms to either accident or degeneration. Having regard to Justice McGechan's assessment of what constitutes “substantial” I consider that it must clearly be more than 50 per cent and leaning towards something much higher. 
When I consider the issues raised in the article in the “Medical Journal”, this confirms Mr Grant's assessment that it does raise a “vexed” question. Quite clearly the authors who are experienced in this field, conclude that there is a general degeneration in the spine over the years, but where a person has been asymptomatic up until an accident occurs it is “unfair” to then attribute the ongoing symptoms as being “substantially” the result of the underlying degeneration which normally occurs. 
The overall evidence in my opinion, leads to the fact that this appellant was asymptomatic up until the time of his accident, and that he has thereafter continued to suffer the same symptoms as were attributable to the accident. I do not consider that the result of the MRI scan supports the view that the ongoing symptoms are “wholly or substantially the result of the pre-existing degeneration.” There is no evidence to suggest that the extent of the degeneration was such that it could be said that the ongoing symptoms are wholly or substantially the result of that but are more likely to be the result of the personal injury. 
The appeal is therefore allowed, and there will be costs to the appellant of $1,000. The respondent is to also pay the cost of Mr Grant's report if it has not already done so. 

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