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Accident Compensation Cases

Hodgson v Accident Rehabilitation and Compensation Insurance Corporation (DC, 31/03/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the appellant suffered personal injury by accident when she suffered pain in her left buttock and low back which occurred when she was running on 1 July 1998. 
The appellant's General Practitioner referred her to Mr J Evison, an Orthopaedic Surgeon, whose report of 7 October 1998 noted a four month history of pain in the left buttock and at that time more general low back pain without associated constitutional, sphincteric, radicular, cough impulse or claudicant features. Mr Evison recorded that the pain had begun whilst she was running and that she normally ran approximately 40 kilometres per week. As a result of his examination Mr Evison applied to the respondent for the cost of an MRI scan. Approval was granted but did not demonstrate any significant abnormality. 
On 18 November 1998 the respondent notified the appellant that it had revised its decision to grant her cover because the result of the MRI scan did not identify personal injury as a result of an accident. The appellant was referred to Dr D Robinson, who specialises in sports medicine, who wrote to the respondent on 19 November 1998 disputing its decision. Dr Robinson stated: 
“There is no doubt from her history that she developed sudden pain when she was running and her first pain was in the hip. If this was to be coming from her spine it would be most consistently due to a prolapsed intervertebral disc. This was the basis on which we did the MRI and this has been discounted. The intermittent nature of her pain and the level of it, at which times it is quite significant would tend to mean that it is not on the basis of some quite minor degenerative change in her lumbar disc. ”
The appellant applied for a review of the decision ceasing entitlements and in support of the application wrote to the respondent and stated that she was physically fit and active and had been a keen runner and cyclist up to the time of the injury. She also said that her general environment was active, as she was a Field Geologist. She said that she ran approximately 20 — 25 kilometres per week without any discomfort. She said that when she was out running on 1 July 1998 she and her running partner had stopped to talk to a friend and that when she resumed running she suffered an onset of pain in her left hip. She said that thereafter she was unable to continue running and had to return to her car. Her doctor then recommended physiotherapy which gave some relief but any attempt to return to normal activities aggravated the hip. As a result of the referral to Dr Robinson of Sportsmed Canterbury and a second opinion from Mr P J Burn, an Orthopaedic Surgeon, she was diagnosed as having suffered an injury to her left hip and buttock which was responsible for her continued pain. 
At the review hearing the appellant represented herself and was questioned by the Review Officer as to what she was doing when the problem occurred. Again she stated that she was running and suffered a sudden onset of pain. The Review Officer noted the respondent's advice to the appellant by letter of 14 January 1999 that there was no specific incident that had caused her injury. In evidence to the Review Officer, the appellant stated that she had been unable to remember whether she had twisted or performed any other particular movement which brought on the pain. The Review Officer concluded that while she accepted that the appellant had suffered a personal injury the nature of that injury remained unclear in spite of exhaustive investigations. The Review Officer rejected the diagnosis of a soft tissue injury proposed by the appellant. The Review Officer concluded that the appellant did not satisfy the criteria required to entitle her to cover under section 8(2)(a) of the Act. The appellant appealed against that decision. 
After the appeal was lodged the appellant engaged the services of Mr Cadenhead who arranged for her to be examined by Professor H C Burry, a Specialist in Musculoskeletal Medicine. In his first report of 6 July 1999, Professor Burry considered the clinical signs “would all point to the existence of a nerve entrapment syndrome.” On the file is a copy of a letter from Professor Burry to Mr Cadenhead dated 23 July 1999 in which he stated: 
“Thank you for your letter of 21 July 1999. I have also received a letter from Ms Hodgson in which she describes in more detail the circumstances of the onset of her pain condition. She has confirmed the suddenness of the onset of her problem which appears to have coincided with her foot striking the ground. 
From a medical point of view I believe that the disordered spinal function may have resulted from the impact of the heel strike. ”
In a subsequent report of 17 September 1999 Professor Burry stated: 
“Although the various imaging techniques do not confirm a diagnosis of this type, they most certainly do not exclude it and I believe the history and clinical signs would all point to the existence of a nerve entrapment syndrome. 
Such a lesion would seem to me to be strictly analogous to other forms of nerve root entrapment e.g. sciatica syndromes and peripheral nerve entrapment such as carpal tunnel syndrome. These conditions have been accepted as personal injury by accident and I believe Dr Hodgson's problem should be considered in the same light. 
2
Accident 
The concept of accident has as one of its elements the notion that an event has occurred. There is no doubt that Dr Hodgson stopped abruptly while running because of the sudden onset of pain in her left side. Her companion on the run has been able to confirm the fact that the pain commenced quite abruptly as her foot struck the ground and her attempts to resume running before walking back to her car. 
The action of running or for that matter walking is divided into stance phase (when the weight of the body is taken on the foot under consideration) and non stance phase (when that foot is swinging forward to complete the next stride). Stance phase consists of heel strike, mid stance and toe off, the first being the moment of impact of the heel upon the supporting surface and toe off the act of pushing off from the ground to assist the generation of the next stride. Ordinarily heel strike is the moment when the greatest stresses are being generated and absorbed by the lower limb, forces which are much greater than the body weight per se. 
I am particularly impressed by the fact that Dr Hodgson throughout this disagreement has not ‘remembered’ that she slipped, slid, fell or staggered. Such a recollection would undoubtedly have cleared the doubt that has, not unnaturally, been seen to exist as to whether she had been injured by an accident. ”
The appellant lodged an affidavit from Mr B M Ashton, a Technology Manager, in which he stated that he had known the appellant for some six years during which time they were both engaged in running and cycling together some three or four times per week. He said that he recalled the incident on 1 July 1998 when he and the appellant had decided to run from a friend's house where they had parked their car. He said that their friend was away from the house when they started their run but early in the run they passed him and stopped briefly to speak to him. He said that at the time it was cold and they had did not stop for long. He said that shortly thereafter, while running on Memorial Avenue, when they were both warmed up and running freely, the appellant had ran approximately 2½ kilometres when she suddenly stopped and said that she had hurt her hip. He said that they had tried to run again but the appellant was unable to do so and they had to walk back to their car. 
The reports from Professor Burry and the affidavit from Mr Ashton were adduced in evidence at the appeal hearing. 
Mr Cadenhead was given leave to call the appellant to give evidence. The appellant told the Court that when her Case Manager had asked her how the accident had occurred she said that she quite truthfully stated that it had occurred while she was running. The Case Manager asked her whether she tripped or twisted which she thought was puzzling but replied that nothing like that had occurred and that all she could remember was that she had been running. She said that she did not realise the significance of the questions as she was not aware of the nature of the definition of “personal injury by accident” as referred to in the Act. She did not become aware of the full nature of that questioning until she had sought legal advice. She said that all her answers to both the Case Manager and to the Review Officer were made quite innocently on the basis that all she could remember was that while running she had suddenly suffered pain in her left buttock and back which continued for some time thereafter. She did not consider that she had to give an explanation of the actual nature involved in the process of the running in order to satisfy the requirements of the Act. 
Mr Cadenhead submitted that on the basis of Mr Burn's diagnosis that there was some reabsorption of the T9/10 disc with a change in the posterior annulus of the L5/S1 level and probably an injury to the left sacroiliac joint, there was acceptable evidence of a personal injury. However that this was discounted by the Branch Medical Officer who considered that there was no specific incident and considered the diagnosis was more of a gradual process problem. 
Mr Cadenhead submitted that it was clear from both the appellant's evidence and that of Mr Ashton that something had certainly occurred to the appellant on the run which precluded her from running any further. He submitted that there was no evidence of any twisting as proposed by the questions put to the appellant by the Case Manager. He submitted that after fully investigating, Professor Burry was able to conclude that “from a medical point of view I believe the disordered spinal function may have resulted from the impact of the heel strike.” Mr Cadenhead submitted that in addition to Mr Burn's diagnosis there was now the evidence of Professor Burry, who is an expert in soft tissue matters, that an injury had occurred as a result of a single heel strike involved in the running. He submitted that action involved the application of a force or resistance which brought the incident within the definition of an accident. 
Mr Hlavac submitted that while the claim had initially been accepted as an accident that decision was revoked following the MRI scan. He submitted that there was an onus on the appellant to demonstrate that she had suffered a personal injury by accident which would create an entitlement to cover under the Act. Mr Hlavac submitted that it was clear from the Review Officer's decision that the appellant had expressed an uncertainty as to the precise action which she claimed had resulted in the injury. He submitted that the appellant's explanation to the Review Officer was consistent with the previous information she had supplied to the respondent. He submitted that it was noteworthy that while Professor Burry had not referred to “heel strike” in his first report, he subsequently provided this as an explanation for the injury. 
Under section 8 of the Act a person is entitled to cover under the Act for a personal injury which is caused by an accident to the person. Under section 3, an accident is defined as: 
“A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events. ”
I was impressed by the manner in which the appellant gave her evidence. She said that she had not associated the reason for the questions which were put to her by the Case Manager and the Review Officer when they asked her whether she had twisted or suffered a fall at the time she had hurt her hip. She said that the answer to that question was simply no and that her explanation of what she was doing was running without giving any more details of that because she could not see the point of the questions. She said it was not until she was aware of the nature of an accident in relation to the application of the Act that she understood the reasons why she had been questioned in that way. She was not represented at the review hearing and until she obtained legal advice she had no idea of why her explanation as to how the incident had occurred had not been accepted as an accident. 
I am satisfied on all the evidence now available to the Court which was not available to the Review Officer that the repeated action of running did involve the application of force to the heel. I consider that the action of running did cause the appellant to suffer a jar to her hip which resulted in the soft tissue injury diagnosed by Mr Burn and Professor Burry. I consider that that clearly amounted to a personal injury by accident and that the appellant should therefore be entitled to cover under the Act. 
The appeal is allowed and there will be costs to the appellant of $850. The respondent is to pay the cost of Professor Burry's report. 

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