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Accident Compensation Cases

Simpson v Accident Compensation Corporation (DC, 21/05/01)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the appellant is entitled to cover for a prolapsed disc at L4/5, either as part of cover previously granted in respect of a back injury sustained in May 1984, or as a separate and distinct injury suffered on 7 June 1999. 
[2]
The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 
[3]
The appellant is now aged 39 years and until her injury in June 1999 she was employed as a dental receptionist. 
[4]
In May 1984 the appellant obtained cover under the 1982 Act in respect of a back strain injury she suffered whilst lifting a 40 kg block of cheese. That injury caused her lower back pain from time to time and she had physiotherapy treatment but was able to resume work, albeit in a different field, and she suffered from back pain from time to time. 
[5]
On 2 June 1999 the appellant sneezed suddenly whilst bending over and immediately developed acute low back pain and pain radiating into both her legs. That pain persisted and she found it difficult to straighten up. However it was not until five days later that she consulted her GP, Dr Tuckett. Dr Tuckett examined her and resolved to refer her to Mr T Love, Orthopaedic Surgeon. 
[6]
In his letter of referral dated 7 June 1999 Dr Tuckett stated, inter alia,: 
“My impression here is that she has a significant problem in her lumbar spine which is clearly recurrent and which is increasingly making her rethink her life. I feel that at this age she does deserve further investigation in specialist opinion. ”
[7]
On 28 June 1999 Mr Love wrote to the respondent at its Masterton office seeking approval for an MRI scan. In that letter the reference number of the back injury of 1984 is quoted. Mr Love's letter seeking approval sets out the background as it was made known to him and he referred to the recurrent episodes of low back pain interspersed with the chronic pain ever since that injury back in 1984. He went on to state: 
“However in the last few months she has felt that the episodes of pain have been worsening, becoming more frequent and lasting longer. In addition, in the last month, she has had pain radiating down both legs and also both shins. There has been some associated tingling but in a non-specific area. … She was working as a dental assistant until recently but had to give this up because of ongoing low back discomfort. 
She notices that if she coughs or sneezes as she did recently she does get severe pain which radiates down both legs. She has tried manipulative physiotherapy which, until recently, has proved effective in reducing the degree of pain that she suffers but in the past two months this has not proven to be the case. 
She certainly has features of discogenic back pain but I wonder whether with the recent onset of leg symptoms whether she has also prolapsed a disc. With the bilateral symptoms this may be quite a central prolapse. In order to diagnose the exact problem in her back I have recommended an MRI Scan of her lumbar spine. ”
[8]
An MRI scan was duly carried out on 16 July 1999 and the report indicated that there was a left paracentral disc protrusion at L4/5 and appears to involve origin of left L5 nerve root. There was also a central annular tear at L5/S1. 
[9]
Mr Love interpreted that scan as follows: 
“I have reviewed this woman's MRI scan. This has demonstrated disc desiccation at L4/5 and L5/S1. This would be the probable cause of her back pain. However, associated with the disc desiccation, there is a large left paracentral prolapse at L4/5. This more than likely is the cause of her ongoing sciatica and leg pain. 
I have indicated to her that the back pain component of her symptomatology cannot be addressed surgically. However, an L4/5 discectomy is significantly likely to alleviate her leg symptoms. ”
[10]
The next report is that of Dr Tuckett to the appellant's case manager in which he stated as follows: 
“This patient, you will recall, came to me on 19.8.99 with a history of having sneezed and suddenly made acute a chronic problem in her low back. There was no doubt that prior to this sneeze and the exacerbation of her symptoms that she had already been diagnosed ‘as having a chronic prolapsed disc problem in the low lumbar spine. This was identified as being at the level of L4/5. The original accident, which I have quoted the number for, referred to a very well documented accident that she had when working in a cheese factory. She lifted at that time a 40kgs. block of cheese and developed an acute pain in her low back and acute left sciatica. This occurred in 1984. She was at that time living in New Plymouth and her doctor was a Dr. Wilson of Okato. 
You will appreciate that, because in this most recent incident she quoted the cause of the exacerbation of her symptoms as being due to a sneeze, she has now been told that this does not qualify as an accident and as an outside influence resulting in an injury. However, the truth of this matter is, and has been clear from the beginning, that her actual original accident involving the L4/5 level of her lumbar spine occurred in 1984 and was documented and accepted by the ACC at that time. There is no doubt whatever that this is a continuing problem, which now has become acute, and that MRI has shown that she now does have an indication for operation. 
I would be most grateful if you could have this matter reconsidered, as she does need to move forward towards surgery, if possible in the near future. ”
[11]
It is noted that that letter was written in response to advice that had been provided to the appellant's case manager from Dr Kevin Morris, National Manager Medical Services, wherein he reviewed the medical notes and considered that the matter of the June 1999 incident represents a new claim and that the injury occurred following a sneeze and this circumstance did not satisfy the definition of an accident. It was Dr Morris' recommendation that the claim be declined. 
[12]
Following Dr Tuckett's letter of 7 October, Dr Morris responded further by stating that the views expressed in his memorandum of 31 August 1999 remained unchanged. He went on to state: 
“The facts of the matter are that prior to the sneeze, surgery was not required and after the sneeze it was. A sneeze does not constitute an accident as defined in the 1998 Act. I therefore cannot recommend any change in the opinion that I gave in August 1999. ”
[13]
It seems as though no decision letter was ever issued at that time and the appellant did go ahead and have the discectomy operation in December 1999and the next step in the chronology of events appears to be an assessment of the appellant by Dr Antoniadis for an independence allowance. The injury that was being assessed was that to her lumbar spine arising from the 1984 lifting incident. In his report the assessor refers to the exacerbating instances over the years and of the latest episode after the sneezing bout. The assessor also had x-rays of her lumbar spine taken after the discectomy operation which noted no evidence of new disc prolapse and the conclusion was that the discectomy was successful although some neuritis is seen. Dr Antoniadis went on to state: 
“The supplied documentation is adequate to corroborate the applicant's history of injuries by accidents and the progress of the conditions since then. It excludes medical illness or degenerative changes as significant contributors to her state. The documentation establishes that the conditions are now stable and assessment for permanent impairment is appropriate. ”
[14]
The appellant was assessed as having a category 3 impairment of the lumbar spine which co-related to a 10% whole person impairment. 
[15]
The only other medical report is that from Dr Metcalfe of 15 March 2000. Dr Metcalfe being a colleague of Dr Tuckett in the same medical practice. Dr Metcalfe referred to the previous correspondence of Dr Tuckett and Mr Love and noted that the sneezing episode of 2 June 1999 was perhaps the last straw for her back that was already weakened by previous injuries. He went on to state: 
“It would be very difficult to argue that her injury or event on the 2 June was an isolated incident and that it was not related to the previous back injury. ”
[16]
It was not until 14 July 2000 that the respondent advised the appellant's solicitor that her claim for cover for the disc injury was declined and the letter reaffirmed the reasons, being those previously advised in the memorandum of Dr Kevin Morris. 
[17]
It is from that decision that the matter now calls for the determination in this appeal. 
[18]
Mr Sceats, counsel for the appellant, submitted as follows: 
The respondent was wrong to treat the appellant's claim as being a new application for cover. 
The sneeze did not cause injury, it merely exacerbated the existing injury which related back to the 1984 incident. 
The injury of the prolapsed disc was simply a progression of the appellant's injury for which she had cover and was not a new and separate injury. 
The appellant's 1984 injury had been the cause of ongoing problems and the June incident merely moved those problems from chronic to an acute stage. 
The respondent is incorrect in determining that the sneeze caused the prolapsed disc. In any event, the timing of the prolapsed disc is not relevant as that injury is clearly related to the pre-existing injury caused in the accident. 
The medical evidence establishes a causal link to the most recent injury which required surgery. 
[19]
Mr Corkill, counsel for the respondent, submitted as follows: 
There was an incident on 2 June. The sneezing caused the appellant's disc to move as noted in Dr Tuckett's certificate. 
The evidence does not establish that the prolapse occurred at some time prior to the sneezing incident. 
There was an event which led to the prolapse, it needed an event to trigger it, it was not just a progression. 
The reports from Mr Love clearly indicate that he regarded the prolapse as a recent event, that is following the sneezing incident of 2 June. 
It is clear law that the injury caused by the sneeze cannot give rise to cover. 
Decision 
[20]
The difference between the positions of the parties in this appeal are that the appellant contends that her prolapsed disc is part of an ongoing progression of her original lumbar injury and made acute in the sneezing incident of June 1999 and should therefore be accepted as part of the cover that was granted for her original injury, whereas the respondent contends that the incident of June 1999 was a quite separate event causing the prolapsed disc and that this is a separate injury and one not to be confused with the ongoing problems associated with the desiccation of the appellant's lower lumbar spine. 
[21]
The appellant is not asserting that a sneeze constitutes an accident or that cover should be granted under that heading, but rather as was stated by Dr Metcalfe that it was the episode which was the last straw for a back that was already weakened by previous injuries. 
[22]
It is regrettable that no radiological evidence exists which indicates the nature of the appellant's back and the extent of any injuries thereto prior to June 1999. What is known is the history and experience of the appellant as she has related it to her GP, to Mr Love and to Dr Antoniadis. That evidence tends to establish that the appellant suffered chronic back pain over the past 15 years since the original accident with occasional bouts of acute pain, but not ongoing. In the months leading up to the June incident she experienced episodes of acute pain and which lasted longer. 
[23]
It was from that history as obtained by Mr Love, and before he had any radiological evidence to assist, that he gave as his provisional diagnosis that she had features of discogenic back pain but that he wondered whether with the recent onset of leg symptoms she had also prolapsed a disc. 
[24]
The MRI Scan confirmed the fact of a prolapsed disc at L4/5 and which was affecting the L5 nerve root. This circumstances was noted as being in conjunction with the disc dehydration (desiccation) identified at L4/5 and L5/S1. 
[25]
I find it of significance to note the opinion which Mr Love gave on his receipt of the MRI scan. He noted that the disc desiccation, which was of longstanding, was the probable cause of the appellant's back pain but that the prolapse at L4/5 was likely to be the cause of her ongoing sciatica and leg pain and that sciatica and leg pain could be alleviated by a discectomy at L4/5. 
[26]
This indeed is what occurred and the appellant is left with the ongoing back pain which has been identified as being unable to be relieved by any surgical means. 
[27]
Mr Love is quite clear in differentiating between the back pain and the leg pain, noting that the sciatica and leg pain was attributable to the prolapse disc and which was of recent origin. The appellant cannot point to any other event which could be the cause of the prolapse and clearly the acute pain that she experienced following the sneezing incident identified that something additional had occurred to that which had been her condition previously. It was the diagnosis of Mr Love, confirmed by the x-rays and MRI, that a prolapsed disc had occurred. This I find would require an event of some description, be it a circumstance which would give rise to a finding of accident or otherwise. 
[28]
The appellant can only give evidence of the sneezing incident which is not in law an accident, or more particularly does not amount to personal injury by accident, and therefore the separate condition of the prolapsed disc, associated though it may be with the disc desiccation which is the legacy of the 1984 injury, is nevertheless a separate and distinct injury which was able to be treated and largely cured. 
[29]
For those reasons therefore, I find that the respondent was correct to rule that the injury of the prolapsed disc was not one for which the appellant was entitled to cover. Having said that however, I note that the respondent accepts the appellant has ongoing entitlements in respect of the continuing problems with her back which have arisen from the 1984 injury and which are confirmed as still existing by Dr Antoniadis. It is for this reason that part of the respondent's decision letter is puzzling when it advises that the respondent cannot accept the certificate of 28 April 2000 from Dr Metcalfe. 
[30]
That certificate indicated that the appellant was continuing to have back problems subsequent to her discectomy and that she is unable to resume her work duties. I find that that certificate relates to the back condition which is attributable to the 1984 injury and not from the prolapsed disc which has to all intents and purposes been remedied. For this reason therefore, I would expect that the respondent would revisit that certificate and consider the appellant's condition in line with it being attributable to the 1984 injury and with the prolapsed disc being largely a matter in her past and not being a causative condition. 
[31]
Accordingly then, I find that the respondent was correct to decline to include in the umbrella of cover the prolapsed disc which the appellant suffered in the sneezing bout in June 1999. However that must be considered separate and distinct from her ongoing back pain problems from her lower lumbar spine which has been identified by her GP, Mr Love and Dr Antoniadis and it would seem that that condition alone is still causing problems which are likely to remain. 
[32]
On the narrow issue that this appeal was on the appellant is unsuccessful and this appeal must be dismissed. 

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