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Accident Compensation Cases

Clough v Accident Compensation Corporation (DC, 12/07/00)

Judgment Text

RESERVED JUDGMENT OF JUDGE A W MIDDLETON 
Judge A W Middleton
The issue in this appeal is whether the respondent was correct in its decision of 12 April 1999 declining further entitlements and cover in respect of an accident to her back sustained on 17 July 1987. In its decision the respondent stated that it considered the appellant's ongoing symptoms were due wholly or substantially to gradual process, disease, or infection rather than to the effects of the accident. 
The background to the appeal is that on 17 July 1987 the appellant slipped while collecting shellfish on rocks and fell backwards landing on her bottom. The claim for cover was accepted by the respondent following completion of a back injury questionnaire by the appellant. In that questionnaire she stated that she suffered sciatica and also stated that approximately five years previously she had slipped and fallen down a flight of concrete steps. 
In March 1992 the appellant's Orthopaedic Surgeon, Mr G M Curtis, requested approval for private hospital treatment because the appellant was still suffering pain and was unable to carry out her normal household tasks. That application was declined. 
In November 1994 the respondent requested Mr Curtis to provide a report and assessment for the purpose of awards under sections 78 and 79 of the Accident Compensation Act 1982. In that report Mr Curtis noted that the appellant had given up her part time job in a retail business and suffered substantial limitations about the home which prevented her from vacuum cleaning, digging her garden, lifting and bending. The report also noted that she had to give up badminton and tennis. In that report Mr Curtis noted that previous x-rays demonstrated a collapse at the lumbosacral junction and a retrolisthesis at L4-5. He said that current x-rays confirmed “a two level instability and dysfunction at the aforesaid levels.” He assessed the appellant's permanent disability for the purpose of section 78 at 22.5%. 
The respondent continued to provide home help assistance but declined an application for surgery on the grounds that the changes in the spine might not have been accident related. 
The appellant underwent decompressive spinal surgery in March 1998 at her own expense. 
A CT scan on 14 January 1999 identified that there was no disc protrusion at the site L4/5. The appellant applied for approval of an MRI scan as Mr Curtis diagnosed the problem as “ex disectomy L4-5 with post disectomy syndrome.” The respondent approved the costs of the MRI scan which was undertaken on 4 March 1999. The report of the scan included “post operative changes at L4/5 and a central disc protrusion at L5/S1, with thecal sac compression at the latter level.” Mr Curtis applied for approval for further surgical procedure in that area. The respondent then sought an opinion of Mr D A Allen, an Orthopaedic Surgeon. 
In his report of 6 March 1999, Mr Allen confirmed that the x-rays taken in August 1987 “demonstrated minor lumbo-sacral changes”. He also noted that a CT scan in 1987 showed calcified disc lesion at the lumbo-sacral junction, which he interpreted as being an old disc prolapse of some duration. He considered that the appellant had developed marked degenerative changes at the L5 level and there were moderately severe changes at the L5 level. He stated “I believe at this stage, in the light of the X-ray changes in August or September, 1987, and the C.T. scan changes later in 1987, that the event 11.8.87 did not cause the degenerative change, but may have been a factor in aggravating the degree of change.” He then went on to state: 
“In relation to the bulging calcified disc at lumbo-sacral level that is causing a degree of central stenosis on M.R.I. scan, I believe, again, that the most that could be said is that the episode on 11.8.87 might have been an aggravating factor in an already existing calcified disc lesion at that level. 
‘On balance, I do not believe the evidence for either proposition is particularly strong. ’
In my opinion the event of 11.7.87 would now be playing little, if any, part in the current symptomatology. ”
When it received Mr Allen's report, the respondent notified the appellant on 12 April 1999 that ongoing cover for her claim was declined. The appellant applied for a review of that decision. 
The respondent then requested further information from Mr Allen in response to submissions made by the appellant. In a further report on 17 September 1999 Mr Allen considered that after reviewing the records, in particular Mr Curtis' opinion from which he differs “the most likely explanation is that two specialists have drawn different conclusions from the same information.” 
The Review Officer concluded that the respondent was correct to decline ongoing entitlements under section 73(1) rather than to cancel cover. He concluded: 
“ … that cover for the 1987 injury should, technically, remain but that the recent advanced degeneration was not due to the 1987 fall so that entitlements are now cancelled. On that basis there is less contradiction as the emphasis is on the exclusion from entitlements of the recent advanced degeneration. ”
The appellant has now appealed against that decision. 
In support of the appeal the appellant provided a further report from Mr Curtis dated 20 December 1999. In that report Mr Curtis noted that he had had the benefit of considering the Review Officer's decision and then stated: 
“As a practising clinician, it is sometimes difficult to come to terms with the Act as it is written for the simple reason that no one pathological process can be excluded from the gradual process of wear and tear unless there is one isolated, obvious profound injury. Such is the case here with Mrs Clough. It has been accepted that this lady had an initial injury for which she was seen and treated by several clinicians long before I saw her. I had no knowledge of this lady prior to my first consultation with her dated 02.04.92. She indicated at that stage that she had already had previous consultations with Mr B.K. Otto in Auckland following her injury in Thames and then later with Dr Waterworth of Napier. She had already received some time later, as the result of an assessment done by myself, a payment based on the previous injuries. What is unclear is the relationship between this original injury and the more recent one where as I understand it, she fell while clambering over rocks, collecting shellfish. 
The facts are, as I understand it to be, this lady sustained an injury by falling on her buttocks some time in 1987. It was soon after, followed by a CT scan taken at Waikato Hospital which demonstrated at that stage, what appeared to be a longstanding calcific prolapse at the lumbar/sacral level. One interprets the calcification as appearing in degenerative tissues and one assumes that this process had been present for some time. One is also making quite a substantial assumption here that it is at this level that her pathology has its seat. It may well have been that an annular tear occurred at 4/5 but this was not demonstrated on CT scanning at the time but may well have been demonstrable on discography or MRI scanning. No such scanning however was available in 1987 although discography was. 
Later, she underwent surgery. First at the lumbar/sacral and then at the 4/5 levels and her subsequent progress has been well documented and is well known to you, such that it will not be repeated. 
From the date I have and in spite of this lady not having any previous lumbar spinal problems until her injury of 1987, it is undisputedly so that degenerative changes have been pre-existent as is stated by the CT report taken soon after that even. 
Between 1987 and 1999, there must have to have been further degenerative changes, simply by the aging [sic] process and not wholly related to one traumatic event. I have to state however that it is likely that the traumatic event of which she complained in 1987, bears a very considerable impact on what has followed and transpired since that time. 
In all fairness, I believe that her injury as described above, has at least had a fifty per cent contributing factor to her current situation and that it is not all totally related to a degenerative process without some impact of trauma playing its part. ”
While the appellant represented herself at the appeal hearing, she provided the Court with a very full written submission from her Solicitor in which it is emphasised that prior to the accident in July 1987 the appellant had suffered no back problems although she had had an earlier fall. It is submitted that Mr Curtis had had the benefit of being the appellant's treating specialist over a considerable period as a result of which he had had ample time to witness the ongoing problem. 
Mrs Grover submitted that while there was a disagreement between the two specialists, the medical evidence demonstrated pre-existing degeneration and that “the effects of the 1987 injury have passed, and that the ongoing incapacity is wholly or substantially due to the pre-existing degeneration.” She submitted that the evidence from both specialists confirmed signs of degenerative disease in the appellant's spine at the time of her 1987 accident. She submitted that the Court should take note of the opinion of Mr Allen who stated that the accident 1987 “may have aggravated the degenerative condition but did not cause it.” 
The issue falls to be determined under sections 10 and 73(1) of the Act, in so far as it applies to this appeal, states: 
10.
General exclusions from cover---(1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is— 
(a)
Personal injury caused by gradual process, disease, or infection arising out and in the course of employment as defined in section 7 or section 11 of this Act; or 
(b)
Personal injury that is medical misadventure; or 
(c)
A consequence of personal injury or treatment for personal injury covered by this Act. 
73.
Suspension, cancellation, or refusal of compensation and rehabilitation---(1) The Corporation shall, if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation. ”
There is no doubt that the fall in July 1987 gave rise to the symptoms in her back which caused pain and discomfort. She was clear of pain and restrictions up until that episode although she had previously suffered a back injury. There is no doubt from the medical reports that the x-rays taken shortly after the July 1987 accident demonstrated problems in the same back area in which subsequent surgical procedures have been undertaken and which still provides the site for the present symptoms of pain. The issue therefore is whether the ongoing symptoms arise from the accident in July 1987 or are caused wholly or substantially by gradual process. 
Mr Allen concedes that the accident in 1987 may have aggravated the pre-existing degenerative condition which did not cause it. However, the appellant was symptom free up to that time so that the effect of the fall brought to light the pre-existing degenerative condition which had led to the ongoing symptoms. On that basis the appellant was in the position that the accident triggered the symptoms from which she now suffers. Mr Curtis considers that the traumatic event in 1987 “bears a very considerable impact on what has followed and transpired since that time.” He attributes the effects of the accident as being at least 50% contributing to the current situation. 
That refines the question to the provisions of section 10 itself as being whether or not the ongoing symptoms are “wholly or substantially by gradual process.” I take those words “wholly or substantially” to mean that if the decision of the respondent is to be sustained then the degeneration should account for more than 50% of the current symptoms. I consider that on the balance of the medical evidence, and in particular, that of Mr Curtis who has been consistently involved with the appellant's treatment it cannot be said categorically that her ongoing symptoms are “wholly or substantially” the result of gradual process, disease, or infection. There may be some element of the pain which arises from the degenerative condition but it cannot be said that it is “the whole” or a “substantial” part of the cause. 
I consider that on the balance of probabilities the appellant still suffers substantially from the effects of the fall in 1987. If the Review Officer had had the benefit of Mr Curtis' report of 20 December 1999, his decision may have been different. For the reasons I have given the decision must be revoked. 
The appeal is allowed and the appellant is entitled to reinstatement of her entitlement as from the date of the cessation. 
As the Court was assisted by the full written submissions provided by the appellant's Solicitors, there will be costs to the appellant of $800 together with the sum of $30 to assist her in the cost of travel to the appeal hearing. 

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