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Accident Compensation Cases

Gose v Accident Compensation Corporation (DC, 22/07/03)

Judgment Text

DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
A 17 September 2001 decision of the respondent suspended the appellant's weekly compensation on the basis that his ongoing incapacity was no longer related to the personal injury which he had sustained on 15 May 1996. The issue in this appeal by the appellant is whether that decision of the respondent was correct. 
Background 
[2]
On 15 May 1996 the appellant sustained injuries to his face as a result of being struck on the left had side of the face and on the nose by a road sign while in the course of his employment in a roading gang with Bitumix New Zealand Ltd. He had been attempting to pull the road sign off the back of a truck. His nose began to bleed heavily and he saw Dr Miller, a local general practitioner, in Palmerston South. I understand that the appellant sustained a fractured nose and concussion. 
[3]
After treatment to stop his nose bleeding the appellant returned to work, but shortly after that his nose began to bleed again. He went back to see the GP who advised him to go to the Emergency Department at Dunedin Hospital. He did and was discharged are receiving treatment. 
[4]
On 17 May 1996 the appellant's nose began to bleed again. He returned to the emergency department and was admitted. The 13 June 1996 discharge summary notes that the appellant was complaining of headaches, visual hallucinations and intermittent blurring of vision, and that he had a known congenital cervical stenosis. 
[5]
In a special note following surgery performed on 29 May 1996 it is stated that: 
“An MRI scan showing spinal stenosis from the lower border of C2 to the upper border of C7. The situation was discussed with him and it was decided to do a multiple level laminoplastry with the CG clip. ”
[6]
On 20 January 1997 Dr Miller advised the respondent that the appellant had aggravated a previous neck injury in the accident on 15 May 1996. 
[7]
On 12 April 1999, Dr J O'Donnell, Rheumatologist/Immunologist, reported: 
“ … Unfortunately, despite surgery Mr Gose has continued to suffer from symptoms largely unchanged. These consist of difficulty with his right side, particularly describing difficulty with the motor function in his right hand associated with pins and needles as well as discomfort in his right shoulder and about his neck. ”
[8]
Dr O'Donnell concludes: 
“On the basis of my examination this evening I can find no evidence of any significant neurological, muscular or skeletal abnormality that would account for his ongoing symptoms. He does have evidence of tender point about neck and shoulders consistent with fibromyalgia syndrome. Without reviewing those notes it is difficult for me to put all his symptomatology together, particularly whether or not there is a causal relationship between his current symptoms and reported injury. Suffice it to say I can find no current physical limitation to his ability to work … . ”
[9]
After receiving copies of Dr Miller's clinical notes, on 15 April 1999 Dr O'Donnell further reported: 
“What is clear from Dr Miller's notes which date from February 1990 is that Mr Gose is both accident-prone and pain-prone. In February 1990, note is made that he reported having pulled his shoulder while reaching out to grab a child who almost fell off a verandah. Two years prior to that he reported that he had been involved in a motor vehicle accident and sustained both shoulder and head injuries. At the time he was taking codeine phosphate for continuing headaches. The use of codeine phosphate and other pain relief has been almost constant since 1990 either for headache or other minor injuries without objective evidence of any serious anatomical abnormality developing consequent to such injuries. He has been involved in the pain management programme in Dunedin and in 1992 was seen by Mr Bishara, Neurosurgeon, having been referred because of neurological symptoms in the right shoulder, arm and fingers. He was sent to be investigated at that time for possible spinal cord or nerve root compression in the cervical spine, the conclusion of which was no significant abnormality was evident. Investigations included an MRI scan performed around 1994 which supported both the clinical impression and previous x-rays and CT scans. Injuries and consequent pain continued to plague Mr Gose and he continued on various forms of analgesics and minor tranquillisers. I did not receive any correspondence directly related to Mr Gose's presenting complaint of neck pain related to the injuries that he sustained when pulling off the road sign from the back of a truck, but do note that he did undergo a laminectomy performed by Mr Gillett. ”
[10]
On 23 August 2000 Dr M MacKay, Branch Medical Advisor to Catalyst reported: 
“With Mr Gose, I gain the impression that he may have had some minor symptoms prior to 1990, but that the series of accidental events were associated with defined cord signs. He was hospitalised after the fall in 1993, and had obvious positive findings of spinal cord injury. Xrays including CT showed no bony change. 
In 1996 he suffered a blow to the face sufficiently forceful to cause a fractured nose and concussion. During his admission for protracted bleeding, he was found to have spinal cord signs, and proceeded to surgery. The indications for surgery would be advancing neurological deficit due to critical cord damage within a tight space. This could not be held to be other than the result of the injury in the context of the admission. ”
[11]
Catalyst sought further comment regarding the appellant from Mr Gillett. On 26 September 2000, Mr Gillett reported: 
“Mr Gose in fact has a long history of being assessed for headaches and neck pain prior to his admission with the blow from the street sign in May of 1996. In fact the previous investigations done by the Orthopaedic Service have shown him to have a cervical spondylotic stenosis with minimal disc changes but in fact a very narrow spinal canal and incipient compression of the cervical spinal cord. This was diagnosed as a congenital spinal stenosis … . ”
[12]
With regard to the relationship between the accident on 15 May 1996 and surgery on 29 May 1996, Mr Gillett reported: 
“This came about as a result of investigation for his unremitting headaches provoked by that accident, which were thought to be due to a cervical stenosis which he had been known to have for some time but up until then it had only intermittently been symptomatic. It was thought that his accident on the 15th of May 1996 had actually precipitated a pattern of pain and decompensated his previous adjustment to his neck condition which was not completely successful. In the event, it seems that he has been plagued by an ongoing pattern of pain and discomfort related to his neck and that a temporary worsening of his problem that was produced by his head injury and only partly relieved by his surgery, if at all, has not really been affected by his contact with the Neurosurgical Service and therefore we would have to conclude that the structural basis of his pain was somewhat in doubt in that clear-cut abnormalities apart from his congenital stenosis have been hard to demonstrate in dealing with that has not significantly altered the course of his illness. ”
[13]
On 26 July 2001 Catalyst referred the appellant to Dr X Xiong, Specialist in Rehabilitation Medicine, who reported on 16 August 2001: 
“Based on the history and clinical examination Mr Gose is currently suffering from chronic migraine type of headache which has been long standing at least back dated before the previous injury around 1989. It is therefore quite clear that the problem was pre-existing particular [sic] prior to the current claim of accident in 1996. 
It was also quite clear that he had the diagnosis of congenital spinal stenosis although the relationship of this towards his symptoms were not entirely clear …  
It would appear to me that the need for surgery was clearly related to a pre-existing cervical stenosis. Whether the surgeon at the time felt the accident has triggered or aggravated some of his symptoms, would be really academic discussion. The accident between 1989 to 1996 would not be the significant cause of the stenosis which appeared to be clearly congenital with his pre-existing fusion between C3 and 4. 
I would agree at this stage I was not able to identify any objective neurological musculo or skeletal abnormalities that would account for Mr Gose's symptoms. It appeared therefore that his symptoms are largely idiopathic headache or chronic headache syndrome which is a medical phenomena rather than related to injuries. ”
[14]
Dr Xiong concluded: 
“Based on the medical file review and the clinical examination today, there are no objective evidence of information to support that Mr Gose's ongoing incapacity for work is still related to the injury dated back to the 15th May 1996. ”
[15]
On 17 September 2001 Catalyst advised the appellant that, based on the report of Dr Xiong, it was suspending his entitlement to weekly compensation as there was insufficient evidence to confirm that his current condition and incapacity for work was a consequence of the injury sustained on 15 May 1996. 
[16]
A review hearing took place on 16 July 2002. In a review decision dated 23 July 2002 the Reviewer dismissed the appellant's appeal on the basis that his ongoing incapacity/condition was no longer related to the accident in May 1996. I refer further to that decision below. 
New Evidence 
[17]
By consent, the appellant has introduced into evidence a 25 September 2002 report from Dr J Borowczyk, Musculoskeletal Specialist who reported: 
“Mr Gose currently suffers from a severe migraine like headache which comes on at least once or twice a week. It starts as a tear in one eye, with onset of pain in the region of the right side of his mouth and right side of his nose. The pain then travels up into the front of his head and travels backwards over the vertex of the skull and into the back of his head. By the time it has reached the back of his head he is consumed with pain and has to go and lie down in a quiet darkened room. He frequently vomits with the pain, and if it is especially severe he is also incontinent of faeces. He has no particular strategy for relieving the pain when it starts and he simply has to lie down until it settles. This has been a regular pattern since 1996. It represents an increased frequency of 4-8 times the headaches he previously suffered prior to his accident. 
He looks well. He is slightly overweight but not grossly obese. With particular reference to the neck and musculoskeletal system, Mr Gose has restricted neck movements. He has restricted rotation to both right and left of at least 40 degrees to each side. He has reasonably full neck rotation in full forward flexion but has limited extension and gross loss of rotation out of extension indicated that the mid and lower cervical spine are the regions where his problem exists. 
Mr Gose has had a chronic pain problem that started at least 8 years prior to his accident and operation in 1996. This took the form of episodic migraine on a once per month basis. He was on heavy doses of analgesics in the form of Codeine, Doloxene, Diazepam and Temazepam. Shortly following his accident and operation this was substituted to Methodone which he now takes in a daily dose of 120 mg, and this is supplied to him by the Dunedin Drug and Alcohol Service. 
What changed with his accident in 1996, was that the frequency of his migraine like headaches increased from one per month to more than one per week i.e. an increase by a factor of 4-8. This caused him to give up work. At the same time he was found to have an incipient spinal stenosis at the C4/5 level, and this was subsequently treated by surgical intervention. The exact relationship of this to his migraine like headaches has never been established. It may in fact have absolutely nothing to do with his chronic pain problem. He did have an MRI scan taken in 1993 when he fell off a wharf and ended up in cervical traction in hospital under the care of the Orthopaedic surgeons. As far as Mr Gose can recall there was no comment made to him at the time that he had this condition. According to the letter by Mr Gillett, the Orthopaedic Service did in fact diagnose his cervical spondylotic stenosis with incipient compression of the cervical spinal cord at that time. There was no comment made as to whether this was in any way related to chronic pain problem. ”
[18]
Dr Borowczyk then reports that following a recent CT scan that “there is no evidence of any spinal stenosis or spinal canal narrowing following this operation.” He concludes: 
“In summary, Mr Gose has a long-standing pain problem. What is quite clear is that the accident he suffered in 1996 precipitated a dramatic change in his pain problem with respect to severity and frequency. Immediately after the accident he had an almost unremitting headache and following his spinal decompression his headaches continued with a greatly increased frequency some 4-8 times than prior to the accident. It is therefore quite clear that his ongoing pain problem is in fact a marked exacerbation of a previous problem caused by the accident he suffered in May 1996. Cervical spinal stenosis and the subsequent operation may in fact have had no relationship to this ongoing problem. It is my opinion that his accident greatly exacerbated his pain problem, and that therefore the Accident Compensation Corporation should continue to compensate him for this as is required under the Act. ”
Relevant Legislation and Law 
[19]
Section 29 of the Accident Insurance Act 1998 (“the 1998 Act”) provides: 
29
‘Personal injury’- (1) Personal injury means— 
(a)
The death of an insured; or 
(b)
Physical injuries suffered by an insured, including, for example, a strain or a sprain; or 
(c)
Mental injury suffered by an insured because of physical injuries suffered by the insured; or 
(d)
Mental injury suffered by an insured in the circumstances described in section 40. 
(2)
Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 39(2)(d), (e), (f), or (g). 
(3)
Personal injury does not include a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in section 39(2)(h) or (i). 
(4)
Personal injury does not include— 
(a)
Personal injury caused wholly or substantially by the ageing process; or 
(b)
Personal injury to teeth caused by the natural use of those teeth. ”
[20]
Section 116 of the 1998 Act provides: 
“116 Insurer may suspend or decline statutory entitlements 
(1)
An insurer may suspend a statutory entitlement if it is not satisfied, on the basis of the information in its possession, that an insured is entitled to continue to receive the statutory entitlement. 
(2)
The insurer must give the insured written notice of the proposed suspension within a reasonable period before the proposed starting date. 
(3)
An insurer may decline to provide any statutory entitlement for as long as an insured unreasonably refuses or unreasonably fails to— 
(a)
Comply with any requirement of this Act relating to the insured's claim; or 
(b)
Undergo medical or surgical treatment, to be provided by the insurer, for his or her personal injury; or 
(c)
Agree to, or comply with, an individual rehabilitation plan. ”
[21]
In Burke v Accident Rehabilitation and Compensation Insurance Corporation (198/98) Judge Beattie considered the relationship between personal injury by accident and a pre-existing degenerative condition and stated at page 16 of that decision: 
“If the trauma of the accident hastens or precipitates the onset of the symptoms of the pre-existing degenerative condition, then once the medical opinion is that it is the degenerative condition which is wholly or substantially the cause of the ongoing symptoms then cover is excluded. Whilst the physical effects of the trauma are present, i.e. the twist or strain or such like, medical opinion would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury proved to be causative. Once the effects of the injury had receded and the medical opinion was that it was the residual degenerative condition which was wholly or substantially the cause of the ongoing problem, then at that time the claimant was no longer entitled to cover under the Act by virtue of section 10. ”
[22]
In Horsburgh (261/98) Judge Beattie considered the casual relationship required between a pre-existing condition and/or injury and the resulting symptoms in order for a claimant to remain eligible for entitlements and stated at page 7: 
“ … it matters not that the degenerative condition may have been asymptomatic and have been made symptomatic by the trauma of the accident. Once the injury caused by that trauma has gone the fact that the degenerative condition remains symptomatic is unfortunate and regrettable but it is not a state which permits ongoing entitlement. ”
[23]
In Hill (189/98) Judge Beattie stated at page 12: 
“The provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. If medical evidence establishes 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. 
The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature. ”
[24]
The reasoning in Hill has recently been adopted by the High Court in McDonald v Accident Rehabilitation and Compensation Insurance Corporation (High Court, Christchurch, AP 2/02, 20 May 2002, Panckhurst J). 
The Review Officer's Decision 
[25]
On 23 July 2002 Review Officer A J Vivian issued a clear and considered decision, dismissing the appellant's appeal on the basis that the appellant's ongoing incapacity/condition was no longer related to the accident in May 1996. The Review Officer carefully outlined the relevant facts and regarded the important medical reports to be those of Mr Gillett dated 26 September 2000, and of Dr Xiong dated 16 August 2001. He then provided the following helpful reasoning for decision, namely: 
“Mr Gillett in his report advised that Mr Gose had a long history of being assessed for headaches and neck pain prior to his admission following the accident in May 1996, and that these symptoms were made worse by the accident. Mr Gillett went on to say that the surgery on 29 May 1996 came about as a result of the investigation for his unremitting headaches, provoked by the accident, which were thought to be due to cervical stenosis. Mr Gillett said that in any event it seemed that Mr Gose had been plagued by an ongoing pattern of pain and discomfort related to his neck and that a temporary worsening of this problem that was produced by his head injury had only been partly relieved by surgery. Mr Gillett was unable to give a structural basis for Mr Gose's ongoing pain problem, as any clear-cut abnormalities apart from the congenital stenosis had been hard to demonstrate. 
Dr Xiong in his report was clearly of the view that there was not any objective evidence to support that Mr Gose's ongoing incapacity for work was still related to the injury dated back to 15 May 1996. Dr Xiong was of the view that the need for surgery was clearly related to a pre-existing cervical stenosis. 
It seems clear to me that both medical commentators acknowledge that Mr Gose had a pre-existing spinal stenosis and that the accident made Mr Gose's symptoms worse, and prompted the need for surgery which was only partially successful in relieving his symptoms. 
This is not a case where Mr Gose was asymptomatic prior to the accident and it is noted that he has had a long history of headaches and neck problems prior to the accident. It would seem to me that Mr Gose's situation falls into the line of authority beginning with Burke (198/98) and applied by the subsequent case of Wehipeihana (49/99). The question in Wehipeihana was whether the accident triggered the pre-existing condition to a new stage or level, or was it the initiation of something separate and distinct from that pre-existing condition. It is clear in Mr Gose's case that there has been no other specific injury-related condition as a result of the accident, but rather a worsening of his symptoms particularly his headaches following the accident. 
The onus in this jurisdiction, although not onerous, lies with the applicant and in this matter I do not consider Mr Gose has discharged this onus. On the balance of probabilities, I consider Catalyst was correct to suspend entitlements. 
It follows that I confirm Catalyst's decision of 17 September 2001 and dismiss the application for review. ”
Since then, there has been the said evidence from Dr Borowczyk, i.e. his report of 25 September 2002. 
Submissions for the Appellant 
[26]
Mr Miller submits for the appellant that there was a causal nexus as at September 2001 (the time that Catalyst issued its decision) between the appellant's ongoing headache symptoms and the accident injury for which he received entitlements from 15 May 1996. Mr Miller referred to the appellant having been able to work up until the accident in May 1996 but not since as a result of ongoing pain and discomfort, and this despite cervical spine surgery carried out by Mr G Gillett, Consultant Neurosurgeon, two weeks after the accident. 
[27]
Mr Miller submitted that the evidence shows that the appellant experienced significantly more pain after the May 1996 accident and that surgery has had little effect in diminishing that, and until May 1996 the appellant had intermittent pain symptoms seemingly related to a congenital stenosis cervical stenosis, but was able to manage those symptoms with some degree of success. Mr Miller referred to Mr Gillett having stated in his report of 26 September 2002 “that it was thought his accident on 15 May 1996 had actually precipitated the pattern of pain and decompensated his previous adjustment to his neck condition which was not completely successful”
[28]
Mr Miller submits that Dr Xiong has minimised or understated the effects of the May 1996 accident on the appellant. 
[29]
Mr Miller refers to the 25 September 2002 report of Dr J Borowczyk reflecting a careful and considered view of the medical evidence then available, as well as Dr Borowczyk's own examination of the appellant. Mr Miller particularly referred to Dr Borowczyk having stated in that report of 25 September 2002; “Mr Gose had a long-standing pain problem. What is quite clear is that the accident that he suffered in 1996 precipitated a dramatic change in his pain problem with respect to severity and frequency” et cetera as quoted at para [18] above. Mr Miller submits that Dr Borowczyk's report does provide objective evidence to support that the appellant's ongoing incapacity for work is still related to the injury dating back to 15 May 1996, and he referred to Dr Borowczyk being a specialist. 
[30]
Mr Miller submits that, at law, an aggravated injury or a fresh injury is nonetheless an injury in terms of the Act, and such a personal injury includes the consequences of pain arising from an aggravation or exacerbation of a condition. 
Submissions for the Respondent 
[31]
It is the respondent's case that the appellant is unable to discharge the onus of establishing that his ongoing condition can be attributed to personal injury from the accident of May 1996. More specifically, the respondent submits that the medical evidence now indicates that the appellant's ongoing incapacity is wholly or substantially due to congenital spinal stenosis, or to a medical phenomenon, and that the medical evidence shows that the appellant is no longer suffering from symptoms which can be attributed to the personal injury of May 1996. The respondent particularly refers to the following evidence: 
(a)
The special note following 25 September 1996 surgery recording the “MRI scan showing spinal stenosis from the lower border of C2 to the upper border of C7”
(b)
Dr O'Donnell's reports dated 12 April 1999 and 15 April 1999, which record the appellant's history of headaches and other minor injuries, prior to the May 1996 injury, requiring the use of “codeine phosphate and other pain relief”
(c)
Mr Gillett's 26 September 2000 report that: 
(i)
previous investigations done by the Orthopaedic Service had diagnosed the appellant with congenital spinal stenosis; 
(ii)
it was thought that the appellant's accident had precipitated a pattern of pain and decompensated his previous adjustment to his neck condition which was not completely successful; 
(iii)
his head injury produced a temporary worsening of his problem, which was only partly relieved by surgery; and 
(iv)
clear-cut abnormalities apart from the appellant's congenital stenosis have been hard to demonstrate. 
(d)
Dr Xiong's report dated 16 August 2001, which records that: 
(i)
the appellant's symptoms were idiopathic headache or chronic headache syndrome which is a medical phenomenon rather than related to the injuries; 
(ii)
it was clear that the appellant's current symptoms pre-existed the accident in 1996; 
(iii)
the appellant had a pre-existing congenital spinal stenosis;\ 
(iv)
the appellant's need for surgery was related to his pre-existing cervical stenosis; and 
(v)
there is no objective evidence to support the appellant's ongoing incapacity related to the injury on 15 May 1996. 
(e)
Dr Borowczyk's report dated 25 September 2002 which stated that the ongoing pain problem was an exacerbation of a previous problem. 
[32]
The respondent particularly relies on Dr Xiong's report and emphasises that he refers to the appellant's need for the said surgery a few weeks after the accident having been related to the appellant's pre-existing cervical stenosis. Mr Gillies submits that although the appellant seems to be now saying that the surgery was due to the consequences of the accident injury, it is hard to believe that the appellant would have been able to arrange surgery so speedily unless it had been arranged earlier in relation to the appellant's pre-existing problems. She also submits that the medical evidence shows that the appellant suffers from congenital spinal stenosis, and that this is the cause of the appellant's ongoing symptoms, rather than the injury which the appellant sustained in May 1996. 
[33]
Of course, if that is so, then the appellant is no longer eligible for entitlements. 
[34]
The respondent emphasises also, that this is not a case where the appellant was asymptomatic prior to the accident, because he had had a long history of headaches and neck problems, prior to the accident, for which he was receiving treatment. I agree. 
[35]
The respondent submits that whether the accident rendered the appellant's congenital spinal stenosis symptomatic or aggravated it, once the injury has receded and the ongoing incapacity is due to a pre-existing condition (e.g. congenital spinal stenosis), there can be no ongoing cover. That is a correct statement in principle. 
[36]
The respondent disputes that Dr Borowczyk's report supports the appellant's claim to entitlement to ongoing cover; nor does the respondent accept the appellant's submission that a personal injury includes the consequences of pain arising from an aggravation or exacerbation of a pre-existing condition. Counsel for the respondent notes that Dr Borowczyk's 26 September 2002 report records: 
(a)
The appellant has had a chronic pain problem for at least 8 years prior to May 1996; 
(b)
The appellant was on heavy doses of analgesics preceding his accident; 
(c)
Following the accident there has been an increase of his migraine-like headaches, by a factor of 4-8; 
(d)
The appellant was found to have an incipient spinal stenosis at the back of the neck at the C4/5 level, which was surgically treated; 
(e)
Mr Gillett did, in fact, diagnose his cervical spondylotic stenosis; 
(f)
The appellant's ongoing pain problem is a marked exacerbation of a previous problem caused by the accident suffered in May 1996. 
[37]
The respondent submits that Dr Borowczyk's report clearly records that the appellant suffered from congenital spinal stenosis prior to his accident; although Dr Borowczyk reports that the appellant's ongoing pain problem is a marked exacerbation of a previous problem, and that the accident exacerbated the pain problem. The respondent particularly submits that it is insufficient for the purposes of ongoing cover for the appellant's injury to have exacerbated his symptoms. The Ongoing effects must be caused by the injury to establish entitlements (Hill (189/98), Burke (198/98)). The respondent submits that ongoing cover cannot be provided for exacerbation of a pre-existing problem; and that in consideration of the totality of the medical evidence, the history of his pre-existing pain problem and his congenital spinal stenosis, the appellant is unable to prove on the balance of probabilities that his ongoing incapacity is caused by the personal injury for which he has cover. 
[38]
Essentially, the case for the respondent is that the appellant is no longer entitled to ongoing cover because his ongoing incapacity can only be attributed to congenital spinal stenosis or to a medical phenomenon, and is not attributable to the injuries which the appellant sustained in the accident of May 1996. In support of that submission, counsel for the respondent particularly refers to the content of the medical reports from Mr Gillett and Dr Xiong, and notes that Dr Borowczyk agrees that the accident exacerbated the appellant's previous pain problem. 
Reasons for decision 
[39]
In my view, the essential issue is whether the appellant's ongoing incapacity continues to be related to the personal injury of 15 May 1996 for which he has cover. The onus of proof is on the appellant to establish that he has a continued right to entitlement in respect of that injury and, of course, the standard of proof is that of the balance of probabilities. Essentially then, the appellant must show that he is still suffering the effects of the personal injury for which the compensation is sought, i.e. that there are ongoing symptoms from the said accident. 
[40]
It is clear that prior to the accident of 15 May 1996 the appellant suffered from the effects of cervical spondylotic stenosis diagnosed as a congenital spinal stenosis. It is also clear from the medical evidence that the 15 May 1996 accident to his face and nose produced at least a temporary worsening of an ongoing pattern of pain and discomfort related to his neck, which was only partly relieved by Mr Gillett's surgery. This assessment is derived from Mr Gillett's report. Frankly, until the medical evidence was received from Dr J Borowczyk one could agree with the Review Officer that the medical evidence showed that the appellant's ongoing problems pre-existed the 15 May 1996 accident. Dr Xiong's view that the appellant's ongoing symptoms “are largely idiopathic headache or chronic headache syndrome which is a medical phenomena rather than related to injuries” seemed consistent with common sense and with the view that the effects of the head injury received by the appellant on 15 May 1996 should have long since cleared up. Indeed, this situation was well put by the Review Officer, who also noted that this is not a case where the appellant was asymptomatic prior to the accident which simply led to a worsening of his symptoms, particularly his headaches. 
[41]
Dr Borowczyk starts from the correct premise that the appellant had had a chronic pain problem for about eight years prior to the 15 May 1996 accident which took the form of episodic migraine. He opines that the 15 May 1996 accident significantly increased the frequency of those headaches and that caused the appellant to give up work. The evidence is that the frequency of those headaches, caused by the accident of 15 May 1996, has not yet diminished. In terms of credibility, one is suspicious about that, but I am bound by the evidence before me (including the transcript of the Review Hearing), which has not be challenged as to credibility. 

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