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Accident Compensation Cases

Weller v Accident Compensation Corporation (DC, 31/10/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal concerns the respondent's decision of 24 August 2000 whereby it suspended entitlements to the appellant pursuant to Section 116 of the Act, on the grounds that his medical condition as it then presented was not attributable to the personal injury by accident for which he had been granted cover. 
[2]
The background facts relevant to the determination of this issue may be stated as follows: 
On 19 April 1993, the appellant, then aged 38 years, tripped and fell at his in-law's home and hyper extended his neck. Although there was some initial pain nothing too untoward was experienced by the appellant at this time. 
On 14 June 1993 the appellant woke up in the morning with severe neck pain, his neck was locked up. He consulted his GP who referred him to physiotherapy where he was treated with cervical traction. 
The appellant was off work for a month but then returned to work, initially for half time and then to full-time. He continued to experience neck pain. 
The appellant lodged a claim for cover on 17 June 1993, the diagnosis was injury being “neck pain from cervical disarrangement especially at C5/C6 level.” 
Besides receiving treatment from his GP, Dr Wong, the appellant also received treatment through Hutt Valley Health from Mr A Simmonds, Orthopaedic Surgeon, who first saw the appellant shortly after the neck locking incident. He prescribed a course of treatment including physiotherapy, non-steroidal injections and pain relief medication. 
In the course of Mr Simmonds' consultations the appellant advised that he had suffered two neck injuries in the 1970's, the first being a football injury and the second being when he was thrown from a car in a motor accident. 
X-rays taken of the appellant's cervical spine whilst he was receiving treatment from Mr Simmonds identified that he had a severely arthritic cervical spine. Mr Simmonds diagnosed the appellant as having a disc lesion at C5/C6. 
The appellant continued to receive treatment from various health professionals but by December 1993 the appellant was unable to continue with his work. 
Various rehabilitation initiatives were carried out, including the appellant being referred to Mr Graham Martin, Orthopaedic Surgeon, who considered that whilst surgery may be an option it was not appropriate at the present time. 
Over the ensuing years the appellant continued to be certified as being unfit to resume his former employment, which essentially involved computer work, and he continued to receive weekly compensation. 
In September 1999 the respondent referred the appellant to Dr Peter Dodwell, Specialist in Occupational Medicine, for a current assessment. It was Dr Dodwell's advice that the cause of the appellant's problems was the underlying degenerative disease in his cervical spine and which had been aggravated by the injury of 1993. 
The respondent did not take any action in relation to Dr Dodwell's opinion and the appellant continued to receive weekly compensation and other entitlements in relation to his neck condition. 
In June 2000, the respondent referred the appellant to Mr Peter Welsh, Orthopaedic Specialist for assessment and advice. In his report Mr Welsh advised that the appellant's present condition was attributable to his pre-existing cervical disc disorder. 
On 24 August 2000 the respondent advised the appellant of the information it had received from Mr Welsh and Dr Dodwell, and that on the basis of that information it was suspending entitlements, the respondent contending that the medical condition the appellant was then suffering was not attributable to the neck strain injury for which he had been granted cover. 
The appellant sought a review of that decision and for the purposes of that review further medical evidence was introduced from Mr Graham Martin, Neurosurgeon, the appellant's GP, Dr Wong, and Mr Brett Krause, Orthopaedic Surgeon. 
In his decision dated 6 March 2001, the Reviewer found that the medical evidence supported the respondent's contention that the appellant's condition was attributable to a pre-existing degenerative condition in his cervical spine. He therefore confirmed the respondent's decision to suspend entitlements. 
For the purposes of the appeal to this Court further medical evidence was produced in the form of reports from Dr Maurice Nathan, Radiologist, Mr Brett Krause, and Dr Peter Dodwell. 
[3]
As is always the case when the respondent's reasons for suspending entitlements are as stated in the present case, the matter really turns on the medical evidence as determination of the issue is very largely a matter of medical fact. 
The Medical Evidence 
1.
X-ray Report dated 14 June 1993 
This was the X-ray taken on the day that the appellant awoke with the locked-up neck. The X-ray report of his cervical spine stated: 
“There is focal degenerative change at the C5/C6 level with significant disc space narrowing and anterior osteophytic lipping here. There is also some early neural foraminal encroachment at the C5/6 and C6/7 levels bilaterally. ”
2.
Initial Report from Mr Simmonds, Orthopaedic Surgeon, dated 1 July 1993 to Dr Wong, appellant's GP. 
Mr Simmonds was the Consulting Specialist at Hutt Hospital to whom the appellant had been referred for management of his pain. Mr Simmonds noted that the appellant had quite a severe C5/C6 disc lesion which was slowly improving. He further stated: 
“The patient has a very severe C5/C6 disc collapse with secondary reactive changes at the disc margin which is a lot more severe than I would expect in a man of 38, but he recalls no previous episodes of major cervical trauma, which usually pre-dates this type of lesion. He may well have suffered a rugby injury but does not recollect such an event. ”
3.
Further report from Mr Simmonds dated 12 August 1993 to Dr Wong, the appellant's GP. 
In this brief report Mr Simmonds noted: 
“The X-rays showed quite extensive degenerative changes for a man of his age and I have warned him that he must be more careful in future because there is a quite definite weakness in his neck which will precipitate further similar episodes under excessive strain. ”
4.
Letter from Mr Graham Martin, Neurosurgeon, to Dr Wong, dated 4 October 1994. 
Dr Wong had referred the appellant to Mr Martin because of pain spasms he was experiencing in his lumbar spine. Mr Martin arranged for an MRI scan of his lumbar spine and he had already had X-rays of the appellant's cervical spine. In his report Mr Martin noticed that the appellant's lumbar spine was “strikingly normal”. Mr Martin went on to state: 
“This I think confirms my impression that his pains are muscle spasms secondry to a C5/C6 osteoarthritis in his neck. 
This has progressed a bit and I am sure is giving him quite a bit of pain. ”
5.
Report from Dr Peter Dodwell, Specialist in Occupational Medicine, dated 22 September 1999 to ACC. 
Dr Dodwell had been provided with all medical information and reports on the appellant and he interviewed and examined the appellant for the purposes of his report. Dr Dodwell noted the diagnoses that had been made by various specialists in the past and his comment on that was as follows: 
“From the description of the fall and the subsequent symptoms it might originally have been reasonable to suspect disc disruption in the form of frank protrusion (in either cervical or lumbar spine) to have arisen. However this seems never to have declared itself in X-rays and MRI and so can now be discounted as never having occurred. 
What we are left with is evidence of degenerative disease (osteoarthritis also termed spondylosis) affecting the neck mainly, but with some problems also arising later in the lower back. ”
Dr Dodwell was asked for his opinion as to whether there was a causal link between this condition and the injury suffered in the accident in 1993. He stated as follows: 
“Although the fall appears to have precipitated some of his symptoms it would be over-stating the case to say that it caused the underlying disease process. Normally, one would expect such symptoms of an underlying aggravating problem to improve over a matter of weeks or months. In my view, symptoms persisting after 1995, should be considered to represent the underlying disease process rather than any aggravation from a single fall in 1993. ”
6.
Report from Mr Peter Welsh, Orthopaedic Specialist, dated 27 June 2000 to ACC. 
Mr Welsh was provided with the medical background and he examined the appellant for the purposes of his report. Included in the medical information which Mr Welsh had were the various reports and notes made by Mr Simmonds back in 1993 and 1994. Mr Welsh advised that the appellant presented with a continuing pain complaint in the neck associated with an element of underlying cervical disc degeneration with some possible nerve root irritation. He then went on to state: 
“Review of the documentation, would indicate that Mr Simmonds' history of the accident is incomplete and it does not recognise the symptomatology long pre-existent before Mr Weller's presentation at the Hutt Hospital and documented in his family doctor's notes. Significant one level disc degeneration was described though by Mr Simmonds and this clearly related to a long pre-existent state. While Mr Weller gives a history of having stumbled through a blind, there was not immediate impact from that incident and it was not for some two weeks later that he awoke with a torticollis. That is, a stiff neck, not an uncommon accompaniment of a degenerate spine. Unfortunately though, this acute episode was long in settling and the situation became more complicated, once Mr Weller was made redundant for work and prospects for re-employment became less and less positive. The whole constellation of the ongoing pain affect and the limitations that Mr Weller felt, conspired to see him enter into a long period of less gainful productivity and that has prevailed to this time. ”
Mr Welsh concluded that the appellant's diagnosis was one of a regional pain syndrome with neck and back pain and with an element of cervical neuritis on the basis of long-standing disc degeneration. He then stated: 
“As to the genesis of his problem, it is very evident that his difficulties are due substantially to the effect of pre-existent cervical disc disorder. His doctor documents symptoms from 1990 through until 1993, when there was the incident when he fell. This was undoubtedly the provocateur of an exacerbation of problem with his neck, and probably contributed to the acute episode two weeks later. One could then see the impairment that ensued through that next several months, perhaps to year's end, as being due to the accident. 
One cannot though sustain continued problems to this time, are the result of that accident. They are due to the pre-existent, and continuing degenerative features described on x-ray by Mr Simmonds now seen on MRI to involve two levels in the spine. ”
7.
Letter from Mr Graham Martin dated 11 September 2002 to the appellant's advocate. 
Mr Martin had been asked to comment on the reports of Mr Welsh and Dr Dodwell. Mr Martin noted that there was no disagreement that the neck x-rays taken at Hutt Hospital in June 1993 showed changes in the vertebrae at the C5/C6 level which could not be related to an accident in April of that year — two months before. However he went on to state: 
“Mr Weller tells me, and Dr Wong agrees he had no complaints for spinal disorders of muscular spasm, nor ACC claims before 1993. He had been employed at Pilkington Glass for many years and had risen from doing a relatively heavy job to managing the division. 
If this is so, then it seems that something happened in 1993 which changed the course of his life and back problems. It should be noted that it is accepted that there was previous trauma to his back as evidenced by the damage to C5/C6, but it seems he did not make any complaint about it at the time. 
I cannot produce a certain link between the injury and his present disability, but MRI scans do not show everything that hurts. I cannot see any other cause than the injury in 1993. ”
8.
Report from Mr Brett Krause dated 15 September 2000 to appellant's counsel. 
Mr Krause examined the appellant for the purposes of his report. He referred to the X-rays of the cervical spine taken in 1993 and 1994 and then went on to state as follows: 
“I think it reasonable therefore to conclude that there was pre-existing disc damage to the C5/6 level when he had his fall through the vertebral bone, [sic] this has subsequently been seen on X-ray. However, there were no symptoms prior to this and I think therefore it also reasonable to conclude that the fall was instrumental in causing his symptoms from a pre-existing but asymptomatic pathological C5/6 disc. The fact that the radiological change does not seem to have changed dramatically over seven years would suggest that the degree of pathology is longstanding. 
The fact that the fall through the vertical blinds therefore is unlikely to have caused the pathological change within the C5 disc but made it symptomatic raises the question of whether the ACC should cover this as an injury. I am aware that the aggravation of pre-existing change has in the past been covered and I think a similar case could be made here. It seems likely that the accident described has caused 100% of his symptoms but a smaller percentage of the pathological change. I would estimate that at approximately 15-20% based on the rate of radiological change since the 1994 X-rays. ”
9.
Report from Dr Maurice Nathan, Radiologist — March 2003. 
Dr Nathan, a senior and experienced Radiologist, was asked to comment on the various X-rays and X-ray reports which had been taken of the appellant's cervical spine, commencing with the X-ray taken in June 1993 at Hutt Hospital. Dr Nathan noted the X-ray report of the 1993 X-rays and he also viewed the actual X-rays taken in August 1994. His interpretation of those X-rays were as follows: 
“There is narrowing of the C5/6 disc with prominent secondary osteophyte formation on the adjacent vertebral bodies. 
Secondary osteoarthritis changes are present in the right unco-vertebral joints of C4/5, C5/6 and C6/7 resulting in osteophyte formation with some narrowing of the exit foramina for the right C4 and C5 nerve roots and more marked narrowing of the foramen for the right C6 nerve root. 
There is a rounded area of ossification approximately 7 mm in diameter in the interspinous ligament near the tip of the C6 spinous process. 
THESE FINDINGS ARE DUE TO OLD INJURY. ”
Dr Nathan confirmed similar findings from more recent X-rays and the MRI scan. Dr Nathan then discussed his findings and stated that in the absence of any one single major injury the cause of these post-traumatic changes was speculative. He noted that the initial injury may have been from the ruby league incident in 1971. Dr Nathan noted that there were no signs of degeneration in the lumbar spine. He then advised that the current degenerative changes in his cervical spine were secondary to old injury and less than 5% could be attributable to the usual ageing process. He stated that if the appellant had not suffered any injury or injuries then any degenerative changes present at his age would be expected to be of a trivial nature. 
Dr Nathan's conclusion was that the appellant has severe changes in his neck, including disc collapse, all of which were secondary to injury which took place months or years before August 1994. He noted that the rugby injury in 1971 could have been more serious than was recognised at the time. 
10.
Report from Dr Dodwell dated 2 September 2003 to respondent's counsel. 
Dr Dodwell was asked to comment on the reports from Mr Welsh, Mr Krause and Dr Nathan. Dr Dodwell's assessment of the situation based on those reports is as follows: 
“It appears likely, on the balance of probabilities, that the cumulative effect of the injuries outlined in his 2001 brief of evidence (but particularly the rugby injury in 1971, and the fall from a moving vehicle in 1975) were the substantial cause of this premature degenerative change. In this I support the report of Dr Nathan. Hence, it appears that Mr Weller suffered a series of PICBA with only the most recent having been the subject of a claim. The 1993 injury, as previously noted, would have aggravated this underlying degenerative change and rendered the problem symptomatic but the substantial cause of this composite problem appears to be essentially a series of PICBA events. There is no evidence to confirm that there was an underlying age-related degenerative condition of his neck. ”
Submissions: 
[4]
Miss Drayton-Glestie submitted that the medical and other evidence made it clear that the appellant suffered no difficulties with his neck until the incident in April 1993 and that he has had an unbroken chain of pain and incapacity since June 1993. She submitted that the appellant continues to suffer from the effects of that April 1993 accident and therefore his entitlements should be continued. Counsel did acknowledge that the medical evidence recognised that the 1993 accident caused an aggravation of injuries suffered prior to that date. 
[5]
Miss Drayton-Glestie further submitted that the earlier accidents in the 1970's were relevant and it must be acknowledged that if claims had been lodged for those accidents then it would be more than likely that those claims would have been accepted. She submitted that to ignore those earlier accidents as being causative would be unreasonable. 
[6]
Miss Jerebine, counsel for the respondent, submitted that the only injury that the Court could consider was that which occurred in 1993 and for which cover was granted. She submitted that this was the only covered injury and therefore conditions which may have been as a consequence of other injuries could not be used as a basis for continued entitlement. Counsel submitted that the clear medical evidence was that the effects of 1993 injury were no longer effective. 
Decision 
[7]
The medical evidence from the various specialists makes it clear that the condition of the appellant's cervical spine, which is identified as being the cause of his ongoing incapacity, manifests a considerably greater degree of degeneration and osteoarthritis than would normally be expected to be seen in a person of the appellant's age. 
[8]
It is also clear that the combined medical opinion identifies that the degree of degeneration is attributable to incidents of trauma in the appellant's past, and the two major events of trauma were those that occurred in the 1970's, being the rugby injury and the motor accident. 
[9]
It is a fact that the rugby injury occurred in or about 1971, prior to the commencement of the Accident Compensation regime, and the subsequent neck injury from the motor accident, which occurred in 1977, seems not to have been the subject of any claim for cover. Indeed it took some probing from some of the specialists when seeking a history, before the fact of this accident was uncovered. 
[10]
Whatever may have been the physical consequences of those injuries they were not causing this appellant any concern, as it seems to be the case that other than a few neck niggles in the early 1990's he was relatively untroubled in that area despite having what seems to be a series of neck incidents in his past. 
[11]
In the context of this appeal this Court is required to determine whether, in terms of Accident Compensation legislation, the appellant continues to have entitlements under the Act for the condition that he presented at the time that the respondent made its decision to suspend those entitlements. In the case of this appellant the Court must consider only the personal injury for which the appellant was granted cover and determine whether that injury or its consequences are still the operating cause of his continued medical condition as it presented at the time the respondent's decision was made. 
[12]
Counsel for the appellant made a forceful plea to the effect that the appellant's earlier injuries by accident cannot be ignored and must be taken into account when determining what the appellant's rights and entitlements under the Act are in relation to the condition that he presented at the time the respondent made its decision. 
[13]
That plea, I have to say, is quite erroneous in law as the Accident Compensation regime is based entirely on the concept that the statutory entitlements for which the Act allows are bound inextricably with the particular injury for which cover under the Act has been granted. That is the fundamental concept of a claimant's right to entitlements under the Act. Put another way, it can only be for injuries which have been recognised by the respondent and for which cover has been granted to which entitlements under the Act can attach. It is the case of this appellant that his old injuries are not those for which cover has been granted, particularly the two injuries in the 1970's which seem to be the genesis of his problems. 
[14]
The medical specialists all agree that the advanced osteoarthritic state of the appellant's cervical spine at the time of his fall in 1993 had been in existence for some time and was certainly not attributable to any event of trauma from that fall. The disc lesion which the X-rays identified pre-existed and I find that the common thread of the specialists is that the appellant's degenerative condition in his cervical spine, which was asymptomatic prior to the fall in April 1993, became symptomatic, probably as a consequence of that fall, even though there was some gap of two months before he experienced the disabling symptoms which have remained thereafter. It is the symptomatic condition of his cervical spine, particularly at C5/C6, which is the cause of his present disabling condition. 
[15]
Those being the facts as I have found them, it is clear that as a matter of law the appellant's right to continued entitlements no longer exists. Several decisions of this Court have asserted that as being the case and those decisions were approved by the High Court in its decision of McDonald v ACC (AP2/02 Christchurch Registry). In that decision Justice Gendall approved the decisions of this Court, including the decision of Hull (189/98) in which it is stated inter alia as follows: 
“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 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 effect on the pre-existing degenerative condition can be covered. The fact that it is the event of an accident that renders symptomatic that which was previously 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. ”
[16]
As I have stated it makes no difference in law whether the disabling features are degenerative changes from the natural ageing process or degenerative changes brought on by incidents of trauma which are not themselves covered accident injuries. 
[17]
For the foregoing reasons, therefore, I find that the appellant's condition as it presented in August 2000, was not a medical condition which was attributable to or caused by the fall which the appellant suffered in April 1993 and the respondent's decision to suspend entitlements was the correct decision in the circumstances. 
[18]
This appeal is dismissed. 

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