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Accident Compensation Cases

Boston v Accident Compensation Corporation (DC, 09/04/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal is whether the respondent was correct, by its decision of 30 October 2001, to suspend entitlements to the appellant on the basis that his current incapacitating condition was no longer attributable to the personal injury by accident for which he had been granted cover. 
[2]
The background facts which are relevant to the determination of this appeal can be stated as follows: 
At the time when the respondent made its decision to suspend entitlements, the appellant was just short of his 58th birthday. 
In April 1986 the appellant was employed as an Earthmoving Machine Operator and he suffered an injury to his cervical spine when his head struck the roof of the cab of his scraping machine as it travelled over bumpy ground. 
X-rays taken on the day after the accident showed that his cervical spine was not damaged in any way but at the same time it did show extensive degenerative changes of long standing. 
After a short period off work the appellant resumed his employment until April 1988 when he was certified as unfit for work and from which time on he has received weekly compensation. 
In 1968 the appellant had been injured in a motor vehicle accident and suffered head and other bodily injuries and was in hospital for almost 12 months. 
In 1969 the appellant suffered a further injury, described as a whiplash type injury, in another motor vehicle accident. 
In 1989 the appellant was assessed as having a disability of 25% in accordance with section 78 of the 1982 Act. 
In early 2001 the respondent, through its agent Injury Management NZ, undertook a medical review of the appellant's condition and sought the advice of Dr Chris Walls, Occupational Medicine Specialist. Dr Walls provided two reports, including a report after obtaining the results of an MRI scan. 
The respondent then sought further opinion from Mr Arnold Bok, Neurosurgeon and Professor Des Gorman, Head of Occupational Medicine at Auckland University Medical School. 
Following receipt of those medical reports, the respondent, by its agent IMNZ, determined that the appellant's current disability was not attributable to the personal injury for which he had been granted cover and it therefore advised him by letter dated 30 October 2001 that his entitlements under the Act were being suspended. 
The appellant sought a review of that decision and for the purposes of that review his advocate sought and obtained medical opinion from Mr Peter Robertson, Orthopaedic & Spinal Surgeon. 
A review hearing took place in April and June 2002 and by decision dated 5 July 2002 the Reviewer determined that the appellant's pre-existing degenerative condition was now the sole cause of his current ongoing incapacity and she therefore confirmed the respondent's decision to suspend entitlements. 
For the purposes of appeal to this Court no further medical evidence has been sought to be introduced. 
[3]
As is invariably the case where decisions under section 116 are under scrutiny, the correctness or otherwise of the decision is largely determined by the nature of the medical evidence as to the present incapacitating causes and whether it or they are, or are not, attributable to the personal injury for which cover had been granted. 
[4]
In this case Miss Taylor correctly pointed out that this appellant had cover granted to him under the 1982 Act and in line with previous decisions in this Court such as Smith (271/01) the appellant was entitled to a continuation of entitlements unless it be established that his current condition was exclusively caused by the degenerative condition identified as opposed to it being substantially so caused. That position at law was accepted by Mrs Gillies, counsel for the respondent. 
The Medical Evidence: 
[5]
The nature of the injury suffered by the appellant in 1986 was described as a ligamentous neck strain and, as noted, x-rays taken the day after the accident showed no fracture of his cervical spine and there were no neurological signs. It was noted by Mr Alex Rutherford, Orthopaedic Surgeon, in a report to the respondent in July 1988 that the x-rays of his cervical spine showed gross degenerative changes at C2/3, C5/6 and C6/7 levels. Mr Rutherford's interpretation was that the appellant had an osteoarthritic cervical spine which had given mild problems in the past but after his injury of 1986 had increased in severity and were now causing him significant disability. 
[6]
It was Mr Rutherford's opinion that the 1986 injury had undoubtedly aggravated his pre-existing osteoarthritic spine. He assessed the appellant's disability as being 50% due to the accident and 50% due to the pre-existing cervical osteoarthritis. 
[7]
A further medical opinion was obtained from Alan Alldred, Orthopaedic Surgeon, on 18 February 1989. Mr Alldred had details of the x-rays taken in April 1986 and further x-rays taken in April 1988. He noted that there were no significant changes between the two sets of x-rays and that the 1986 x-ray showed advanced changes at several levels in the cervical spine. He noted there was well-established degenerative change in the lower cervical spine with anterior osteophytes resulting in almost complete fusion. He did however opine that part of those degenerative changes may have been caused by earlier trauma such as the motor accident in 1968. 
[8]
It was Mr Alldred's advice that the appellant's neck was stirred up by the injury of April 1986. He later used the expression that the appellant's cervical spondylosis from previous injury had been aggravated by the injury of April 1986. 
[9]
In February 1995 a further report was provided to the respondent on the appellant's condition from Mr Brian Thorn, Orthopaedic Surgeon. Mr Thorn advised that there were now signs to suggest that the appellant was suffering spinal cord compromise secondary to his cervical spondylosis. Mr Thorn stated that the appellant's condition as it presented to him was cervical spondylosis aggravated by injury in 1986. 
[10]
That diagnosis was confirmed when the appellant was examined by Dr Chris Walls, Occupation Medicine Specialist in June 2001. Dr Walls gave as his opinion that the injury of 1986 was the triggering event but not the sole cause of his current symptoms. It was his opinion that earlier injuries would have been responsible for the majority of his current symptoms. 
[11]
Dr Walls requested that an MRI scan be obtained and this was duly received, the advice of the radiologist, Dr Peter Gendall, being “cervical spondylosis with major effects at the C5/6 and C6/7 levels. No sign of cord or nerve root compromise”
[12]
Dr Walls interpretation of that MRI scan was that the appellant's major problem was that of cervical spondylosis which was not an accident related condition. It was Dr Walls opinion that the incident in 1986 would have precipitated symptoms but would not have caused the changes shown in the MRI scan. Dr Walls actual words as contained in his report were: 
“I believe Mr Boston's current condition is related to cervical spondylosis and that the accident in 1986 which precipitated his symptoms was not really causative. ”
[13]
The appellant was then referred to Dr Arnold Bok, Neurosurgeon, for further diagnosis of the appellant's chronic non-specific headaches and neck aches. Dr Bok gave his opinion as follows: 
“I do not agree with Dr Walls that Mr Boston's symptoms are purely related to cervical spondylosis. Cervical spondylosis of the extent as demonstrated in Mr Boston occurs commonly, and is mostly not associated with significant symptoms. It is therefore likely that his neck pain and headache are due to other causes. Pain may arise from facet joints, or from ligaments and from muscle fibres in the neck, from stretched nerve roots, or from disc displacement. Although long standing neck pain and headache is rare after a jerking type injury to the neck, it has been described in some patients. Mr Boston sustained a significant head injury and two significant neck injuries according to his history, and I therefore do not feel comfortable totally discounting these as contributors to his ongoing pain. His problem started after the head injury, and was aggravated by the subsequent neck injuries, and all three should be seen as contributors to his problem. As he was symptomatic before his injury in 1986, it is difficult to say to what extent this specific injury contributed to his ongoing symptoms. ”
[14]
Following receipt of Mr Bok's opinion the respondent sought a further opinion from Professor Des Gorman, Head of Occupational Medicine at the Auckland Medical School. Professor Gorman's advice was by way of a clinical audit by file review. He was asked to consider the difference in interpretation which Mr Bok and Dr Walls had indicated in their earlier reports. Professor Gorman stated inter alia as follows: 
“Mr Bok agrees with Dr Walls in that cervical spondylosis may explain some of Mr Boston's symptoms, but also points out that other soft tissue phenomena may be involved and there may be other causes for his pain. In that context, I agree that Mr Boston's headache, neck and shoulder pain are almost certainly multi-factorial. There will certainly be a mechanical component and in that context the cervical spondylosis demonstrated radiologically may be a source of nociception. However, the difficulty in this context is that there is little or no correlation between the degree of change, as evident radiologically, and the level of symptoms that someone experiences. There may well be other sources of nociception such as osteoarthritis, and perhaps even some of the soft tissue changes to which Mr Bok refers. However, this is entirely conjectural. There is almost certainly a superimposed non-nociceptive physiologic chronic pain syndrome and some of Mr Boston's symptoms are highly suggestive of such a disorder. Finally, there is a possibility of a psychiatric component to this pain, although neither Mr Walls nor Mr Bok have identified any markers of such a condition. ”
[15]
Professor Gorman was asked to comment on the opinion given by Mr Bok that all three accidents suffered by the appellant would have contributed to his head and neck problems. He was also asked to comment on what effect the 1986 injury had had. To this Professor Gorman stated as follows: 
“The most probable analysis here is that the 1986 accident had a significant short term effect, but will have had a negligible long term effect. It is also clear that there are many other incidents, other than the three specific accidents, which have caused exacerbation's in Mr Boston's state. ”
[16]
Finally the appellant was seen by Mr Peter Robertson, Orthopaedic & Spinal Surgeon in May 2002. For the purposes of his examination and report Mr Robertson had copies of the reports from Mr Thorn, Mr Bok, Mr Rutherford, Professor Alldred, Dr Walls and Professor Gorman. Relevant parts of Mr Robertson's report state as follows: 
“His MRI scan does not demonstrate unduly dramatic abnormalities for his age and the type of work that he has been involved in over the years. The plain x-rays demonstrate more generalised changes of spondylosis. The finding of a spontaneous fusion at C5/6 is interesting as this would not normally occur in spondylosis and may reflect injury changes. 
It is clear that this man's major symptoms relate to ongoing pain that occurred subsequent to a clearly described accident. Notwithstanding this he had mild symptoms before the accident. Although x-rays are not available for me to review, it is my understanding that x-rays early after the accident demonstrated changes of spondylosis and these changes almost certainly existed prior to the injury. A reasonable interpretation would be that he had relatively asymptomatic cervical spondylosis before the accident. 
It is clear that the injury has had a significant effect in the onset of Snow's major symptoms and ongoing disability. His current symptoms and disability are quite out of keeping with the normal pattern of symptoms one would expect from cervical spondylosis. I am tempted to hypothesise that he has had some form of significant soft tissue injury at the time of the 1986 accident, perhaps similar to a whiplash type injury, that has gone on to cause severe ongoing pain and a subsequent chronic pain syndrome. The spontaneous fusion at C5/6 may lead thinking in this direction. 
It would seem highly unlikely that had Snow not sustained the accident described, he would have gone on to suffer the current level of symptoms and disability based on the x-ray changes alone. 
In summary it is clear that this man's accident, based on the history given today, has had a very significant bearing on his ongoing pain and disability, and current situation. It is also clear that mild symptomatology existed before the injury although it was not troublesome at that time. I understand there was evidence of mild spondylosis although this could be accepted as relatively normal in a person of Mr Boston's age at the time. ”
Submissions 
[17]
Miss Taylor, on behalf of the appellant, submitted that the respondent had accepted that the aggravation of the pre existing degenerative changes caused by the accident was an acceptable personal injury by accident under the 1982 Act, and that it followed from that that if some part of the ongoing incapacity continued to be on account of that aggravation then cover for that incapacity must continue. 
[18]
She further submitted that it was important to note that the appellant enjoyed some 17 years without significant neck problems between 1969 and 1986. In essence, Miss Taylor submitted that the appellant's condition as it presented it at the time the respondent made its decision to suspend was exactly the same as it had been throughout the preceding years during which the respondent had accepted that the appellant had a right to cover and entitlements for that condition. 
[19]
Mrs Gillies, counsel for the respondent, submitted that the principles enunciated by this Court in Hill (189/98) and Burke (198/98), as confirmed by the High Court in its decisions of Fowlie (AP 50/00) and McDonald (AP 2/02) established that a claimant was only entitled to receive entitlements under the Act for so long as it was established that those entitlements arise as a consequence of the personal injury for which the claimant had been granted cover. 
[20]
Counsel submitted that the medical evidence established that the appellant's ongoing neck problems were attributable to the degenerative state of the cervical spine and that the 1986 accident merely aggravated those symptoms. 
Decision 
[21]
I have considered the medical evidence, both past and present, relating to the state of the appellant's cervical spine and it is quite clear that at the time of his 1986 injury that part of his spine was showing gross degenerative change. I note particularly the advice of Mr Rutherford in that regard. 
[22]
The pattern of medical evidence and opinion which has been presented over the years since Mr Rutherford's initial advice has been to the effect that the appellant's ongoing symptoms were attributable to his cervical spondylosis, which condition had been aggravated by the trauma of the injury suffered by the appellant in April 1986. 
[23]
Equally clear from the medical evidence is the fact that no significant injury was initiated by the event of April 1986. The x-rays were normal and there was no neurological deficit. The nature of the injury was considered to be ligamentous, that is a strain. Furthermore the injury did not cause any nerve root entrapment which itself can be a constant source of pain in a spondylolytic condition. 
[24]
I am aware of the fact the appellant suffered quite severe injuries in the motor accidents of 1968 and 1969 and that these may well have been the genesis of his spondylitic condition, but it is equally clear that the appellant was able to lead a comparatively pain free existence with that condition until the incident of April 1986. In other words the appellant's degenerative condition was present but largely asymptomatic. 
[25]
A common thread amongst all the medical specialists who have considered the appellant's condition is that the spondylitic condition was aggravated by the injury of 1986. Further, it seems to be a probability that had it not been for that 1986 incident the appellant may well have had a number of further pain free years. 
[26]
On close analysis I find that both Mr Bok and Mr Robertson accept that it was the 1986 incident of trauma which triggered the appellant's cervical spondylosis to become symptomatic and be the cause of his disabling pain. 
[27]
From the perspective of entitlements under the Act, it is now clearly established that a person is only eligible to receive entitlements under the Act for so long as the basis for that entitlement is attributable to the personal injury for which the claimant was granted cover. The legal principle which is recognised and which has been accepted by the High Court in its decisions in Fowley and McDonald is that which was enunciated in the decision of Hill namely: 
“If medical evidence establishes that there are pre existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre existing degenerative condition that can be covered. ”
[28]
In other words whilst the physical effects of the injury suffered in the accident are present, entitlements must be expected to continue, but once it is determined that it is only the ongoing effects of the now symptomatic pre existing arthritic condition that is causing the incapacity, then there is no basis for entitlements to continue for that condition. 
[29]
Even having regard to the fact that the appellant's situation must be looked at in the light of the 1982 Act description of “Personal Injury”, I find that the medical evidence does not disclose any continuation of injury from the trauma of that 1986 accident. That is there is no physical injury remaining which was caused by the bang the appellant's head received in April 1986. That which is continuing is the ongoing effects of the pre existing cervical spondylosis. 
[30]
For the foregoing reasons therefore it must be the case that, as the appellant's condition presently stands as identified by Dr Walls and Professor Gorman, and earlier identified by Mr Alldred and Mr Thorn and Mr Bok, it cannot attract continuing entitlements under the Act. Accordingly this appeal is dismissed. 

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