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Accident Compensation Cases

Carr v Accident Compensation Corporation (DC, 02/06/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 4 August 2005, whereby it suspended all entitlements to the appellant on the grounds that his ongoing medical condition was not attributable to the back strain injury for which he had cover under the Act. 
[2]
It is the respondent's contention that the appellant's ongoing lower back pain and resultant restriction of movement, is as a consequence of the now symptomatic degenerative condition of his lower back and is not as a consequence of any trauma from his covered injury. 
[3]
It is the appellant's contention that at least a significant part of his lower back pain is attributable to the back injury, in particular paracentral disc protrusion at L2/3. 
[4]
The background facts relevant to the issue in this appeal may be stated as follows: 
In 1996, when aged 49 years, the appellant suffered two incidents causing back pain. The first instance occurred in March when he was lifting a 20 kg pail of paint and in a twisting motion experienced pain radiating down his left side. 
The appellant was treated with anti-inflammatory medication by his GP and his back settled down. He lost no time off work. 
In May 1996 whilst raking leaves at home he again experienced pain in his lower back. This pain did not resolve and he saw his doctor. 
A claim for cover was lodged for this back injury, the claim stating that it was a back strain. 
The appellant was certified as unfit for work and his treatment included a number of epidural injections over time. 
The back pain and its disabling features remained and the appellant has never resumed employment. 
Various specialists have examined the appellant and have provided reports both to the respondent and to the appellant's GP. 
An MRI scan was taken of the appellant's lumbar spine in August 1999 and at various times since May 1996 there have been X-rays of his spine. 
In June 2005 the respondent sought the opinion of Dr W E D Turner, Specialist in Occupational Medicine. 
Dr Turner's opinion was that the appellant was suffering from a chronic regional pain syndrome affecting his lumbar spine contingent upon a degenerative lumbar spine disc disease. Dr Turner's opinion was that the appellant's then current symptoms arose as a consequence of his underlying degenerative diathesis. 
Consequent upon Dr Turner's report, the respondent issued its decision on 4 August 2005 suspending all entitlements. 
The appellant sought a review of that decision and a Review Hearing took place on 12 December 2005, and for the purposes of that review the appellant introduced a Specialist Report from Dr Wigley. 
In a decision dated 23 December 2005, the Reviewer found that the appellant's ongoing back problems were wholly or substantially caused by multiple level disc prolapses related to degenerative osteoarthritis and she therefore upheld the respondent's decision to suspend entitlements. 
For the purposes of the appeal to this Court the appellant has introduced a report from Dr Peter Dixon, a Principal Radiologist at Broadway Radiology. 
[5]
This is an appeal where the medical evidence is largely determinative of the issue, and I now set out the relevant parts of the various reports to which the Court was referred. 
1.
Medical Notes of Dr Ken Chin, the appellant's GP. 
21/11/95 
2/7 Sore lower back over abdomen. Intermittent. 
22/3/96 
Twinge in L paravertebral muscles L/side from lifting thinners. No obvious history of accident. 
20/5/96 
Exacerbation of L lower back pain — no history injury. ”
2.
Radiology Report on lumbar spine dated 18 June 1996. 
“Evidence of mild scoliosis with a concavity on the right side. There are signs of early mild degenerative osteophyte formations at the lower lumbar segment. The intervertebral disc appears preserved. Both sacral iliac joints appear normal. ”
3.
Report dated 15 August 1996 from Mr Robert Kusel, Orthopaedic Surgeon, to appellant's GP. 
The appellant had been referred to Mr Kusel by Dr Chin. His diagnosis was that of “lumbar disc injury with right sciatica”. He noted the history of the two episodes and the fact that whilst the first had settled rapidly after a course of anti-inflammatory medication the May injury had failed to settle and that the appellant had developed recurrent back pain with radiation down his right leg. He also noted no significant past history of back problems. 
4.
Series of reports from Dr Richard Grenfell, Anaesthetist, August 1996-April 1997. 
In the course of an eight-month period Dr Grenfell administered four epidural injections to the appellant's lumbar spine in consultation with Mr Kusel. 
5.
Report from Mr Kusel to Dr Chin dated 17 April 1997. 
Mr Kusel reported to Dr Chin following the completion of the epidural treatment. He gave as his diagnosis, “mechanical low back pain secondary to a lumbar disc injury.” Mr Kusel noted that the appellant's sciatica had settled as a result of the epidural injections, but his low back pain remained. 
6.
Report from Mr Graham Martin, Neurosurgeon, dated 15 August 2000 to ACC. 
Mr Martin noted that the appellant was troubled by back-ache but no sciatica. Mr Martin commented on the MRI scan taken on 4 August 1999. He noted as follows: 
“An MRI done on 4-8-99 shows a substantial right L2/3 disc protrusion which could well be compressing the L4 nerve. The L2/3 disc is narrower, and protrudes posteriorly and has lost most of the water in the nucleus, except that there is a little bit at the left posteriorly, but overall it is a quite abnormal disc. There is a small L5/S1 disc protrusion, and though hydrated, the disc space is somewhat narrower than the others, in addition small osteophytes are growing around the edges, indicating ongoing damage. 
Clinical findings and current diagnosis? L2/3 disc protrusion, quite consistent with account of 1996. 
Underlying factors contributing to the incapacity? Yes, though not psychological or social factors, merely the position of this damaged disc. At L2/3 it is higher up the lumbar spine than is usual, but in the an area of maximum mobility. This need for maximum mobility in the upper part of the lumbar spine is the reason he has considerable difficulty in sitting or doing anything else. ”
7.
Report from Dr Blair Christian, Occupational Medicine Specialist, dated 23 March 2001 to ACC. 
The respondent sought an assessment from Dr Christian as to the appellant's then situation. His diagnosis and comment was as follows: 
“It is difficult or impossible to say exactly what the cause of the pain is, although there is probably a combination of normal age related degeneration of the spine and the disc lesion seen on MRI. This disc lesion may or may not be related to the 1996 accident. 
If the disc injury is affecting the L4 nerve, as postulated by Mr Martin, and if the disc injury was caused by the accident in 1996, then the pain is injury related. Certainly John's back problems have been constant since the accident in 1996. 
It is difficult at this late stage to be definite about causation, as the MRI scan was obviously done some years after the accident, and the AX-Ray done at the time was already showing early spinal degeneration. 
In summary I agree with Mr Martin's report of August last year where Mr Martin stated that it is very unlikely that John could return to work full-time at all, certainly not within the next two years and probably not within the next ten. Mr Martin felt that the disc protrusion at L2/3 seen on MRI was quite consistent with accident in 1996. I feel this is possible although very difficult to prove on way or another. ”
8.
Report of Dr W E D Turner, Specialist in Occupational Medicine, dated 17 June 2005 to ACC. 
Dr Turner had the various reports that had been generated as well as some of the Radiology reports. Dr Turner obtained a full history of the appellant and carried out an examination. 
Dr Turner stated, inter alia as follows: 
“I have little doubt that this man suffers from a chronic regional pain syndrome affecting his lumbar spine contingent upon a degenerative lumbar spine disc disease. 
The diagnosis of regional pain syndrome in the lumbar spine contingent upon his degenerative diathesis is consistent both with his history and the clinical findings. The onset would appear to have arisen through extremely minor circumstances. Initially he suffered a lumbar spine sprain, which resulted in mechanical low back pain but he was able to work with this problem and it was not until he was raking leaves in May 1996 that he suffered further pain and on this occasion sciatica symptoms in his right leg. I have little doubt that these symptoms arose not because of the intensity of any injury that arose when he was raking leaves but because of his underlying degenerative diathesis. Clearly despite multiple therapeutic interventions including prolonged rest [he has not worked since 1996 and has undertaken a passive pain behaviour approach], non-steroidal anti-inflammatory medication, acupuncture, physiotherapy, epidural injections x 3, repeated orthopaedic assessments and advice, the wearing of a lumbar spine corset and a pain management activity based programme at the Hutt Hospital Rehab Centre; his condition has become worse and not better. This is consistent with his inexorable advancing osteoarthritic condition, which is the driving force behind his pain disorder and his mobility problems. I could find no evidence at the assessment that he was suffering from an injury lesion based on the event in May 1996. ”
9.
Report from Dr R D Wigley, Consultant in Rheumatology, Rehabilitation Medicine, dated 28 October 2005. 
Dr Wigley examined the appellant on 5 October 2005 and obtained a full history. He had all the previous medical reports and Radiology reports for reference. Dr Wigley noted as follows: 
X-rays of June 1996 do not show degenerative changes. 
The continuing back and leg pain is a direct result of the back injury of May 1996. 
Dr Turner has not produced any valid evidence to the contrary. 
His chronic pain is due to back strain with disc injuries. 
He still suffers from the injury for which he was originally granted cover. 
The suggestion that his disability arises from susceptibility to degenerative joint disease (osteoarthritis) is not substantiated by the clinical or radiological findings. 
Alternative opinion is contrary to the opinion expressed by Mr Martin. 
10.
Report from Dr Peter Dixon, Radiologist, dated 31 January 2006, to appellant's Advocate. 
Dr Dixon was provided with the X-rays and MRI films and was asked to provide an interpretation. His comments on the X-rays and MRI of the lumbar spine are as follows: 
“The lumbar spine x-ray of June 1996 demonstrates moderate scoliosis in the mid lumbar region centred at about L3 with rotation to the left. The disc heights are preserved and there is no spondylolisthesis. There is some slight increased density in the facet joints at the L5/S1 level but no osteophytes or cysts can be demonstrated. 
In answer to your specific questions on the lumbar spine: 
1.
There are some osteophytes in the lower thoracic disc margins. I do not believe these are clinically significant. There is a scoliosis in the lumbar region. This can be due to muscle spasm. There is no evidence of a structural spinal abnormality to cause the scoliosis and there was no change between 1996 and 1999, so I do not believe one can diagnose facet osteoarthritis from either these x-rays or the MRI. 
2.
As described above there is evidence of annular tear of the discs at L2/3 and a disc bulge at L5/S1. 
3.
Annular tears can occur as part of the aging process but have been demonstrated with acute back injuries. It is not possible to distinguish these entirely on the basis of the MRI. 
4.
I do not believe there is any apophyseal joint osteoarthritis. ”
[6]
Mr Dixon-McIver submitted that Dr Turner's report should be treated with caution as he made certain observations and findings, said to have been after viewing x-rays, when in fact he did not have possession of those x-rays. He further submitted that the opinions presented by Mr Kusel, Dr Christian, Dr Dixon and Dr Wigley should hold sway. He submitted that the appellant was not asserting that the injury from the May 1996 accident was the only cause of his ongoing problems, but rather that it was still a cause of substance and as such the appellant was entitled to retain his entitlements. 
[7]
Mr Barnett submitted that the evidence identified that the appellant suffered from multi-level abnormalities in his lumbar spine, that it was a degenerative condition, that the medical evidence met the test that the appellant's present condition was wholly or substantially as a consequence of the ageing process rather than of any continuing effects of personal injury. 
Decision 
[8]
The evidence establishes that prior to the two incidents in early 1996 the appellant had no real history of back problems, save for what Dr Christian described as “normal niggles”
[9]
The March 1996 incident brought about the sudden onset of pain but did not cause the appellant to have to stop work or take time off work, and I note that the anti-inflammatory medication that was given to him by his GP caused the rapid resolution of the problem. I find it can be taken from that state of affairs that no ongoing injury remained from that March incident. 
[10]
The next incident occurred in May 1996 and again that involved the onset of pain but as a consequence of the appellant's new back strain injury, the pain persisted despite all efforts, including epidural injections and other treatments provided or recommended by Mr Kusel and the Anaesthetist, Dr Grenfell. 
[11]
I find that it can be inferred from the course of the appellant's back condition after the May incident that the injury suffered was more serious than that which had occurred in March. 
[12]
When an MRI scan was carried out in August 1999, it showed L2/L3 disc protrusion and a small L5/S1 disc protrusion. Mr Martin described those two conditions with the former being “substantial” and the latter being “small”. It was Mr Martin's opinion that the L2/L3 protrusion was quite consistent with the appellant's account of his 1996 injury. 
[13]
I find that Mr Martin must be referring to the May 1996 injury which is the one which was ongoing, as the earlier injury had resolved. 
[14]
Dr Christian is broadly in agreement with Mr Martin, although he is more equivocal about whether the disc lesion seen on the MRI was related to the 1996 accident. I note that Dr Christian states that it is difficult at this late stage to be definite about causation. However, the test required is not that of being definite or of there being absolute certainty, but rather that the disc lesion, being as a consequence of the injury, is a circumstance more probable than not. 
[15]
Dr Turner's report is predicated by his opinion that the appellant's back condition “is consistent with his inexorable advancing osteoarthritic condition which is the driving force behind the pain disorder”. Even though x-rays and the MRI scan identified disc protrusions, Dr Turner did not consider there was any evidence of injury lesion based on the event of May 1996. This finding is of course contrary to that of Mr Kusel, Mr Martin and, on balance, Dr Christian. 
[16]
Dr Turner considers the appellant is suffering from multi-level osteoarthritis and that this is the underlying cause of all his problems. That assessment, I note, is not shared by other specialists who have considered the appellant's lumbar spine and viewed the x-rays and MRI scan relating thereto. 
[17]
In that regard, I find the evidence given by Dr Dixon, the Radiologist, to be important. His evidence was that there was no evidence of osteoarthritis in the lumbar spine and this observation is supported by that of Dr Wigley. 
[18]
Whilst it is the case that the appellant does exhibit degenerative changes in his lumbar spine, I am not satisfied that the appellant is suffering from an osteoarthritic condition or that the ongoing pain which the appellant suffers is as a consequence of that condition as opposed to it being attributable to the disc protrusions which are identified and which I find is more probable than not were caused by the May 1996 incident. 
[19]
This is a case where there is multi-level degeneration but there are also identified disc lesions which Mr Kusel, Mr Martin, Dr Wigley and Dr Christian identify as being a cause of the appellant's ongoing back pain. In those circumstances, I find that the exclusionary provision contained in Section 26(4), where the definition of personal injury does not include injury wholly or substantially caused by the ageing process, does not apply. I find that accident related injury is still a cause of substance of the appellant's ongoing incapacity, even though it may not be the sole cause, and the medical evidence does not allow for a finding that the ongoing cause is wholly or substantially the ageing process, as opposed to personal injury from accident. 
[20]
In all the circumstances I find that the respondent's decision to suspend entitlements on the grounds that it did, was wrong, and it is hereby quashed. The effect of this decision is that the appellant is entitled to have all entitlements which he enjoyed restored to him as from the date when they were suspended, for so long as he continues to satisfy the statutory criteria for same. 
[21]
The appellant being successful, I allow costs in the sum of $1,750 together with qualifying disbursements pertaining to the presentation of the appeal. 

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