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Accident Compensation Cases

Mckinlay v Accident Rehabilitation and Compensation Insurance Corporation (DC, 08/03/01)

Judgment Text

DECISION OF JUDGE P F BARBER 
Judge P F Barber
Issues 
[1]
This is a case where, on 18 March 1999, the respondent cancelled entitlements as from 19 October 1998 pursuant to section 73(1) of the Act. In essence, the reason for that decision of the respondent was that, while the appellant may have sustained a minor soft tissue injury at the time of the relevant accident on 22 April 1997 (referred to below), the effects of this personal injury are now spent, and the appellant's ongoing condition is the result of a chronic pain syndrome, previously described as “ME syndrome”, being a condition which predated the accident. Accordingly it was considered that: 
(a)
Under section 37A(2) the appellant no longer satisfies the test of incapacity, namely, the appellant is not, by reason of his personal injury, unable to engage in employment; and 
(b)
Pursuant to section 10 of the Act, the appellant's “chronic pain syndrome” is a gradual process, disease or infection not arising out of and in the course of employment. 
[2]
Essentially, the respondent's view was that any minor soft tissue injury sustained by the appellant on 22 April 1997 had long since cleared up. 
Background 
[3]
This appeal concerns the appellant's claim for cover for injury to his back arising out of an accident on 22 April 1997. 
[4]
For about 5½ to 6 years from the age of seventeen (i.e. 1984 through to 1990) the appellant suffered from “ME” syndrome (Myalgic Encephalomyelitis). This involves symptoms including poor sleep, back pain, muscle pain, diminished strength and depression. The appellant describes suffering from “head to toe pain” during this time and suffering from frequent headaches. The symptoms and diagnosis are supported by a letter from Mornington Health Centre dated 10 December 1986 (referred to in Dr Strack's report of 10 August 1998 mentioned below). 
[5]
In March 1994 the appellant attended the emergency department at Dunedin Hospital suffering from a painful neck and left shoulder when driving a car. The diagnosis of muscle-spasm-stiff-neck was made (Emergency Department letter dated 27 March 1994). 
[6]
On 23 June 1996 the appellant had suffered an acute injury to his lower spine while lifting two large boxes from the boot of his car. Pain was experienced in both his lumbar spine and in his thoracic spine between his shoulder blades. On the morning following that injury he found that his back had seized up and that he had great difficulty moving. His back continued to be painful at the site of the injury and his movements remained significantly restricted. At that point he stopped work and began administering his business from home. 
[7]
The appellant's symptoms subsequently improved over time. However, two to three weeks later, he experienced a recurrence of pain down his entire spine but, specifically, in his lower back and between his shoulder blades. On 2 July 1996 his back again became acutely painful and he was admitted to hospital. While this pain subsequently improved, it has never completely abated. 
[8]
Subsequently the appellant spent 3-4 months off work. From home he managed his business (in which he was self-employed) and recuperated. Eventually his back improved and he was able to return to work. 
[9]
On 22 April 1997, the appellant suffered another onset of pain to his back while lifting luggage out of the boot of his car. This is the accident for which cover was given for present purposes until March 1999. His subsequent symptoms were essentially the same as before with pain in his lumbar spine and thoracic spine in his shoulder blades. He felt stiff and had difficulty moving and was again unable to work. 
[10]
At the time of consultation with Dr Strack in August 1998 the appellant described suffering from a variety of symptoms related to his back including: 
(a)
Sudden sharp bursts of pain across the lumbar region and lower thoracic region 
(b)
“Locking up” 
(c)
Sharp shooting pains travelling over his back when straightening his back fully to stand up 
(d)
Tightness and soreness in lumbar spine 
(e)
Lower back pain affected by weather and cold. 
[11]
In addition, the appellant described pain in other areas other than the back, which included: 
(a)
Burning sensation in both anterior thighs 
(b)
Tingling under the left arch of the foot and top of the toes 
(c)
Pain in both knees. These symptoms are reported as having come on several months after being certified unfit to work in 1997. 
(d)
Left ankle pain since about September/October 1997 
(e)
Tingling sensation in fingers on and off 
(f)
“Giddy” sensation if the appellant moves 
(g)
Migraines 
(h)
Difficulty sleeping 
(i)
General irritation as a result of ongoing pain 
(j)
Right wrist pain 
[12]
Dr Strack also summarises various investigations by way of x-ray spanning the years 1985 through to 1988. The majority of these disclose areas where pain has been identified by the appellant (both knees (July 1985), right elbow (February 1987), right wrist (June 1987), left ankle (October 1983), cervical spine (May 1994), both ankles (March 1995), right wrist (June 1998), left knee (July 1998)), yet no abnormalities detected. 
[13]
I turn to the medical investigation following the accident in April 1997. 
[14]
On 10 July 1997 a treating practitioner report (MCR2) was provided by Dr Young which provided a case history and stated: 
“Strain lower back on lifting heavy luggage at home just after arriving back from a trip from Christchurch on 22/4/97. No sight of any nerve impingement sites. Pain is said to be quite severe at times especially on turning in bed. As noted general tenderness throughout body particularly in the groin. ”
[15]
The appellant was subsequently referred to Mr Dunbar, an orthopaedic surgeon who, in a report dated 22 October 1997, records: 
(a)
The appellant first ran into problems with his low back in 1996 when he was lifting some merchandise and strained the back. Since then he has continued to have variable pain in his low back. 
(b)
The pain is felt predominantly in the low back but the appellant also has pain between the shoulder blades and he has other symptoms such as tingling in his feet and a feeling of heat in the thighs. He has not had any numbness or weakness in his lower limbs. 
(c)
The appellant's past history includes ME which was associated with quite significant pain and he also experiences regular headaches. 
(d)
The appellant had multiple areas of tenderness throughout the lower lumbar spine and also the mid-thoracic spine between the scapulae. His x-rays of the lumbar spine show spina bifida occulta of the L5 vertebra which is of no particular significance. 
(e)
The appellant appears to have mechanical back pain with a large component of muscular spasm. It is difficult to say exactly what might be underlying his pain but there are considerable other factors which are contributing. 
[16]
Following an MRI scan, Mr Dunbar reported to ACC and Dr Young on 11 February 1998. In those letters he records: 
(a)
The only abnormality seen on the MRI scan is some loss of hydration in the L5/S1 disc which does not necessarily explain his back pain. 
(b)
The appellant has now had low back pain with some radiation to the thoracic spine for many months. It varies in severity and, at times, incapacitates him and, at other times, he is able to get on with life. He doesn't have neurological symptoms although he did mention a feeling of tingling and heat in his feet, thighs and also in his hands. 
(c)
The MRI scan shows a loss of the normal hydration in L5/S1 discs and a slight bulge at that level, but insignificant cause in any neurological compression. The remaining tests look normal. The dehydration at the L5/S1 disc would not be expected to cause the appellant's pain. 
[17]
In March 1998 the appellant was referred for a functional work conditional program. In a report to the respondent dated 2 April 1998, his physiotherapist (Andrea Moseley) reported: 
(a)
The appellant reported high levels of pain at lumbar to mid-thoracic spine, his right knee and ankle. 
(b)
The appellant repeatedly expressed two major concerns: 
(i)
That he had not received a definite cause for his pain and therefore he considered any exercise may worsen his condition; and 
(ii)
His previous problems with ME have meant that he has a high pain threshold and exercise may cause further damage he is unaware of. 
[18]
The appellant was then seen by Dr Strack who provided his extensive report dated 18 August 1998. Following his review of the appellant's medical history and current symptoms Dr Strack provided, inter alia, the following opinion: 
“Mr McKinley presents a rather complicated clinical problem with respect to his ongoing musculoskeletal pain symptomatology. I am unable to identify evidence of clear neurological involvement clinically. Imaging studies have failed to identify spinal abnormalities, which could explain his ongoing symptomatology …  
Mr McKinley's lower back pain is associated with a number of other pain symptomatologies including pain in his thoracic spine region, pain in both knees, pain in his left ankle and pain in his right wrist. The pain symptomatology in his knees, left ankle and left and right wrist appear to have all arisen in the absence of an injury …  
I believe that Mr McKinley suffers from a chronic pain syndrome affecting his lumbar spine, thoracic spine, both knees, left ankle and right wrist. While there may well have been some injury on or about mid-1996 or April 1997, I do not believe that this is the cause of his ongoing symptomatology. Mr McKinley has a significant history of chronic pain difficulties as evidenced by his previous diagnosis of ‘ME syndrome’. It is noted in his old medical notes that he had had pain in his neck, back and legs from at least May 1985. These symptoms lasted for approximately five and a half to six years. They were associated with irritable bowel-type symptoms of abdominal pain and recurrent diarrhoea. Mr McKinley also indicated that he has suffered from a degree of depression over the years and in his mid-teens had suicidal thoughts on occasion. The history of significant pre-existing conditions such as these noted above, in conjunction with the rather generalised pain symptomatology Mr McKinley suffers from at the moment, leads me to believe that Mr McKinley is suffering from a chronic pain syndrome with some features such as generalised pain …  
I believe that Mr McKinley's chronic pain syndrome is perhaps best viewed as a recurrence of his previous ‘ME syndrome’ type symptomatology rather than as a direct result of the incidents he described in 1996 and 1997. Mr McKinley has had chronic back pain since approximately 1985 and I do not believe that it is reasonable to assume that the incidents described in 1996 and 1997 were therefore the sole or even necessarily a significant cause of his ongoing pain symptomatology which as previously discussed includes pain symptomatology in areas that one would expect to be associated with a back injury. 
There are in my opinion significant pre-existing conditions in the form of his previous history of chronic pain, longstanding history of back pain, previous history of depressive symptomatology with suicidal ideation and by chemical evidence suggestive of excessive alcohol intake. 
I do not believe that Mr McKinley's present disability is due to the accident suffered on 22 April 1997. As previously discussed, I believe it is best seen as a continuation of his previous chronic pain syndrome and ongoing back problems which date back to 1985. ”
[19]
A copy of Dr Strack's report was subsequently provided to Professor Gorman, the head of the Occupational Medicine Department at Auckland University. In a report of 10 September 1998, Professor Gorman concurs with the opinions expressed by Dr Strack, specifically: 
(a)
The appellant has a chronic diffuse pain syndrome. He has a past history of such pain syndromes. He also has the commonly associated problems of depression, sleep disturbance, migraines and irritable bowel syndrome. The past history of chronic pain is such that it is untenable to argue that any recent accident is the cause of his current disability. 
(b)
The appellant's pain syndrome is very longstanding. 
(c)
The injuries suffered to the appellant's back appear trivial and would be unlikely to have been the cause of any sustained invalidity or the cause of his chronic pain syndrome. 
[20]
The appellant subsequently obtained a further, brief, undated report from Mr Dunbar in which Mr Dunbar refers to the 1997 accident and states: 
“Since that time he has had back pain of variable intensity with features of mechanical pain. This may be on the basis of facet joint dysfunction or muscular dysfunction. He has been investigated with some … films, bone scan and MRI scan all of which show no significant abnormality. These results, however, do not rule out he is having mechanical back pain. ”
[21]
In December 1998 the appellant was seen by Dr McGrath, an osteopath. In his report dated 29 December 1998 Dr McGrath states, inter alia: 
(a)
It is not possible to demonstrate any objective neurological signs for the appellant's complaint. The exception to this is the presence of features associated with chronic pain, namely allodynia, referred pain and possibly dysthesias. These are the hallmark of a state of peripheral sensitisation of the sensory nervous system. 
(b)
The presence of spina bifida occulta at S1 may be instrumental in a less mechanically efficient lumbosacral spine. There is evidence that this is associated with accelerated related (L5) invertebral disc wear. 
(c)
It is not possible to meaningfully dispute the findings of either Professor Gorman or Dr Strack if one takes an overview of the appellant's medical history. The diagnosis of chronic diffuse pain syndrome is a reasonable one under the circumstances. 
(d)
The findings so far do not exclude mechanical back pain. The appellant may have factors present in his medical history which suggest a greater risk for chronicity but this is a separate issue from the issue of his acute low back pain events and subsequent chronicity. 
(e)
There is little clinical doubt that the appellant suffers from quite severe chronic somatic dysfunction (ICD 10M99), both in his lumbosacral and mid-thoracic spine. This diagnosis can only be made as a secondary one. The primary diagnosis is a lumbosacral disc strain. 
[22]
In January 1999 Dr Strack was asked to review the medical evidence obtained since his earlier report and in a report of 29 January 1999 Dr Strack reported, inter alia: 
(a)
That he agrees with much of Dr McGrath's report but does not accept that the L5 invertebral disc generation strain is the cause of the appellant's ongoing back problem. 
(b)
It cannot be ignored that the appellant has had five and a half to six years previously of “ME syndrome” where he suffered from chronic back pain amongst other symptoms. There is certainly no evidence of a prolapsed disc or significant spinal injury, and an L5 disc lesion could not account for the plethora of pain related and other symptoms quoted in Dr Strack's original report. 
(c)
It is more reasonable to look at the appellant's ongoing symptom complex as an extension of his previous longstanding pain and symptom complex which was previously described as a “ME syndrome”
(d)
While there may have been some minor soft tissue injury at the time of the incidents in 1996 and 1997, the presence of which can neither be proven nor discounted, such injury was relatively minor. It would also be necessary to postulate two sites of injury as immediately following the appellant's 1996 injury he had both lumbar and thoracic spine pain. It is also noted that shortly after the incident the appellant describes as pains involving the entire spinal column. This would not be compatible with a simple musculoskeletal L5 lesion and is more compatible with the onset of a regional pain syndrome, a problem which the appellant has a clear previous history of. 
[23]
In February 1999 Mr Dunbar was asked to review the earlier reports filed. He subsequently provided a report dated 12 February 1999 in which he gave his opinion that: 
(a)
The appellant has undoubtedly experienced an acute episode of low back pain. This may be arising form, his L5-S1 disc, facet joint dysfunction or muscular dysfunction. The exact cause is not important rather that he had an acute event and that subsequent investigations excluded major pathology. 
(b)
One would normally expect such an episode of mechanical back pain to settle down within a few weeks or a few months at the outside. This has not occurred in the appellant's case and he now has a chronic pain syndrome. Such syndromes cannot be clearly related to demonstrate abnormalities on investigations. In the appellant's case there are several pre-disposing conditions to his developing such pain. 
(c)
In summary, the appellant has experienced an acute low back injury causing mechanical dysfunction which normally should have resolved by now. While agreeing with Drs Strack, Gorman and McGrath that the appellant is suffering from a chronic pain syndrome Mr Dunbar believes that the syndrome was initiated by identifiable injuries in 1996 and 1997 and perpetuated by the factors outlined rather than being a simple recurrence of ME as suggested by Dr Strack. 
[24]
In December 1999 the appellant was seen by Dr Burry, a retired rheumatologist. In his report of 7 December 1999, Dr Burry reviews the medical evidence filed to that date and provides, inter alia, the following opinion: 
(a)
Usually the term “chronic pain syndrome” is used to indicate a condition characterised by unremitting pain for which no identifying physical or pathological cause can be identified. The appellant certainly has chronic pain and no one can state with certainty what is causing that pain. 
(b)
The mode of onset strongly suggests that there was an acute disruption of soft tissue in the lower back. The possibility that something of this nature occurred to the appellant would provide an explanation for his long continued symptoms. 
(c)
The appellant may suffer from a lumbo-sacral level. The presence of pain on extension and tenderness of the facial and tendinous attachments to the posterior superior iliac spine would support this diagnosis. 
(d)
The appellant may have been somewhat vulnerable to the development of chronic pain and this vulnerability would have been increased by his unsatisfactory experience with ACC. 
(e)
He does not believe that Dr Strack was correct in his opinion that the appellant was suffering from chronic pain syndrome to which he was pre-disposed by having had ME. 
(f)
Finally, he questions the qualification/experience of Dr Strack (and by implication Professor Gorman) as an occupational physician to provide diagnosis on musculoskeletal issues. 
[25]
Finally, on 13 June 2000 Dr Strack provided a report by way of review of the subsequent medical evidence filed since his earlier report, and in particular Dr Burry's report. In summary, Dr Strack states that: 
(a)
He reiterates his definition of chronic pain syndrome, namely “a condition where the predominant feature is pain often in the absence of, or excessive to, any demonstrative pathology. The pathophysiology of such conditions is poorly understood” 
(b)
Despite the most sophisticated imaging available, there is no evidence of significant tissue damage that can explain the appellant's ongoing symptoms. 
(c)
In most cases of non-specific back pain such as exhibited by the appellant, no clear cause of pain is identifiable. While Dr Burry discusses lumbrosacral strain as a possibility, he is of the opinion that this could not be seen as the cause of the appellant's ongoing pain symptomatology. As previously described, the appellant's symptomatology is far more widespread than one might expect from a localised or discrete injury. 
(d)
People who develop pain syndromes are quite commonly seen to develop similar problems in later years. Back pain is often a recurrent problem, the single best indicator of future progress is past history. Psycho-social factors are now considered to play a significant role in the aetiology and maintenance of chronic pain, as well as disability due to chronic pain. 
(e)
The problems that the appellant had, dating back to the mid-1980's, were diagnosed as “ME syndrome”. It is of note that these problems did include chronic pain difficulties, including backspin, which had been present since at least 1985. 
(f)
The appellant has had a history of chronic back pain prior to what appear to be quite trivial incidents in 1996 and 1997. It is very hard to argue that these incidents are the sole, or even significant, contributors to the appellant's ongoing chronic back problems for which no obvious physical pathology has been able to be identified. 
Extracts from Submissions for Appellant 
[26]
It is the appellant's submission that the Review Officer's decision (7 August 2000) is inconsistent with the weight of the medical evidence which clearly shows that the appellant's incapacity is due to personal injury suffered in 1996 and 1997 and covered by the Act. 
[27]
The Review Officer preferred the view of Dr Strack and Professor Gorman to those of the other three specialists involved in the case. It is the appellant's submission that she was wrong in this, and that there is a demonstrable connection between the personal injuries of 1996 and 1997 and the appellant's present incapacity. 
[28]
The respondent has accepted that the appellant suffered two separate personal injuries by accident — the first occurring in June 1996 and the second occurring in April 1997. In October 1998 the respondent temporarily revoked cover on the second back injury but later revoked that decision by letter dated 18 March 1999. The respondent reinstated cover with respect to the second injury then decided on 19 March 1999 that the appellant's back pain no longer stemmed from these personal injuries, and suspended his entitlement to compensation. 
[29]
It is that decision dated 18 March 1999 which is the subject of these review proceedings. 
[30]
As cover has been accepted the issue is simply whether either or both of these injuries is a cause of the appellant's ongoing incapacity. 
[31]
The appellants submit that the referral to an occupational physical was unusual, as occupational physicians do not have specialist training in the diagnosis and treatment of spinal or musculoskeletal injuries. The practice of occupational medicine focuses on injuries brought about through work processes. The appellant submits that it would not be normal practice for a general practitioner to refer a patient with acute back injury symptoms to an occupational physician. The Review Officer in her decision (page 12) accepts the branch medical advisor's advice that occupational physicians do deal with musculoskeletal problems. Mrs Beck submits that she is wrong in this and that it is necessary to seek the best medical advice available for specific problems. 
[32]
Mrs Beck submitted that Dr Strack's conclusion that the appellant's symptoms arose out of a generalised chronic pain syndrome do not explain the specific focus of pain in his lower back. The appellant's medical records do not reveal a clinical history of chronic pain in the lumbar spine, nor incapacity from employment due to such pain. 
[33]
By contrast (the submitted), there is a significant correlation between the two back injuries and incapacity. After the first injury the appellant was incapacitated for three to four months. The brief period of hospitalisation, for 2 or 3 hours only, and subsequent 3-4 months off work is consistent with a significant injury. Subsequently the appellant returned to work and remained in employment until the second back injury. 
[34]
Mrs Beck submits that there is a correlation between a back injury and subsequent incapacity, and that it is logical to conclude that these events are related. She puts it that one would have thought that if Dr Strack's comments were true, there would have been evidence of incapacity due to chronic lumber pain prior to the two injuries; but the fact is that the appellant was working without difficulty for some years prior to these incidents. Mrs Beck submits that the opinions of Drs Dunbar, McGrath and Burry should be preferred to that of Dr Strack. 
[35]
Mrs Beck submits that In terms of contemporaneous diagnosis it would also be logical to place greater weight on Dr Dunbar's report as he examined and interviewed the appellant closest to the accident of 1997 and has significant clinical experience in the treatment and diagnosis of back injury. She felt it significant that he at first hand witnessed muscle spasm approximate to the 1997 injury and his diagnosis was in part based upon this clinical observation, for which Dr Strack offered no explanation. 
[36]
Mrs Beck submitted that, in summary, we have three specialists with a familiarity with and clinical experience in back injury, who believe that the injuries of 1996 and 1997 are the key cause of the appellant's incapacity; and that Dr Strack who does not have training in this area believes otherwise, yet he leaves certain questions unanswered. She submits that, despite what the Review Officer says on page 12 of her decision, there is a large area of agreement amongst the three physicians — i.e. that the appellant is susceptible to chronic pain, but that a susceptibility to chronic pain does not affect the appellant's right to statutory entitlements. 
[37]
Mrs Beck submits that the balance of probabilities prefers a finding that the appellant's incapacity is as a result of personal injuries suffered in 1996 and 1997, and that the Review Officer was wrong in preferring the views of Dr Strack and Professor Gorman. 
Reasons for Decision 
[38]
Because I am in broad agreement with the submissions for the respondent my reasoning below relies heavily on those. I note that by letter of 19 October 1998 the respondent purported to revoke cover for the appellant under s 67A of the Act (power to revise decisions) but, on 18 March 1999, and also in reliance on that section, reinstated cover i.e. it revised its decision of 19 October 1998, but at 18 March 1999 still cancelled entitlements from 19 October 1998 pursuant to s 73 of the Act. That means that the appellant was accorded cover from 22 April 1997 to 19 October 1998, a period of about 18 months, i.e. he was given 18 months to heal from the 1997 accident. 
[39]
It is helpful to set out s 10 of the Act:- 
“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 of 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]. 
(2)
For the avoidance of doubt it is hereby declared that — 
(a)
personal injury caused wholly or substantially by the ageing process; and 
(b)
personal injury to teeth that is caused by the natural use of those teeth — 
is not covered by this Act. ”
[40]
I also set out the following extract from page 13 of my decision in Drokin (275/2000) which I referred to in Eckhold (277/2000):- 
“At this point in time, my concern is that section 73 of the Act expects a suspension or cancellation of payments under the Act when entitlement ceases. If it is ascertained that a person's ongoing condition does not qualify for benefits, then the benefits and/or payments cease. Although a person is entitled to cover, and has cover, in terms of section 8 if that person has experienced personal injury caused by accident (or any of the other matters set out in section 8(2)), that cover does not extend to a particular ongoing condition which becomes excluded under section 10. If a particular injury or medical condition is wholly or substantially as a result of, for instance, degeneration, then that is not covered and never should have been unless it is a consequence of a particular personal injury or its treatment. 
An injured person can expect cover under the Act until the injury heals. A condition and symptoms existing after that which arise wholly or substantially because of the matters set out in section 10 (gradual process, disease, or infection and the ageing process in particular) are not covered, and one would expect the respondent to be satisfied in terms of section 73 that benefits and payments must cease. For all that, the original injury which has healed seems to me to remain covered so that if there was proven reoccurrence of some type with regard to that injury then cover would still exist. 
In any case, entitlement to benefits and payments should cease when a personal injury is no longer caused by the original accident or is wholly or substantially due to any of the matters set out in section 10 of the Act. I appreciate that the issues of cover and capacity/incapacity are entirely different concepts and a person can be covered but not incapacitated. Insofar as counsel seem to think it important whether I deal with this case under section 10 or under section 73, that aspect seems quite academic to me. At any given time, the question must simply be what is the cause of the present medical condition of the applicant, and if it is not wholly or substantially the accident in question, thensection 73must be applied to cease benefits. Another way of putting the situation is that if a person's injury, at any point, is no longer caused by the accident then, although the cover for the accident injury still subsists, the person's current medical condition (which is in issue) may be caused wholly or substantially by gradual process outside employment, disease, or infection, or the ageing process. This means that the subsequent (or current) injury state is not and never was covered by the Act, unless it arose out of and in the course of employment, or by medical misadventure, or is a consequence of the original personal injury or its treatment. ”
(My present emphasis).
[41]
It now seems settled in this Court that section 10 of the Act establishes a fundamental exclusion for cover which needs to be addressed on an ongoing basis throughout the time a person is continuing to seek entitlements under the Act — Drokin and Eckhold. Accordingly, where the effects of an accident have subsided and a person's condition is caused wholly or substantially by gradual process, disease, infection or the ageing process, then entitlements can be terminated by the respondent. 
[42]
Where issues of section 10 arise, the onus is on the appellant to show, on the balance of probabilities, that his (or her) ongoing problems are as a consequence of the personal injury for which he has been granted cover rather than as a consequence of some other cause which is excluded under the provisions of section 10. 
[43]
Here the appellant has made a single claim with the respondent for cover for injury to his back arising out of an accident on 22 April 1997. The issue is not simply whether the appellant's injury is a cause of his ongoing incapacity. Rather, the appellant must prove, on the balance of probabilities, that his ongoing problems are as a consequence of the personal injury for which he has been granted cover, and are not caused wholly or substantially by some other cause which is excluded pursuant to the provisions of section 10. 
[44]
As has been observed by this Court on numerous occasions, this issue must be determined on a consideration of the medical evidence. 
[45]
As a preliminary issue, the appellant submitted that the evidence of Mr Dunbar and Drs McGrath and Burry should be preferred over the evidence of Professor Gorman and Dr Strack on the basis that, as occupational physicians, Professor Gorman and Dr Strack do not have specialist training in the diagnosis and treatment of spinal or musculoskeletal injuries; whereas Mr Dunbar and Drs McGrath and Burry have specialist training and clinical experience in dealing with back injuries. This submission appears to be based on comments made by Dr Burry in his report dated 7 December 1999 which were referred to the respondent's branch medical advisor who, in a Memorandum dated 20 April 2000, stated his and the respondent's view that: 

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