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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Jackson v Care Advantage (DC, 21/06/07)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
The central point in this appeal concerns a question of causation of a shoulder joint condition in relation to a minor accident when the appellant moved some heavy shelves. 
[2]
This is the second of two judgments concerning refusal or suspension of possible entitlements based on a covered back injury. This judgment follows a review decision dated 23 September 2005 confirming the respondent's decision of 4 March 2005 suspending entitlements on Mr Jackson's claim 
[3]
The accompanying judgment Jackson (134/07) sets out the general background. In summary, Mr Jackson suffered pain and restriction of movement of his left shoulder from mid 2001 and he associated it with an incident at his work at Farmers on 8 or 11 May 2001 when he had been pushing heavy shelves and experienced pain in his shoulder. He mentioned it to a supervisor, but the employer did not record it in the accident book. Mr Jackson had continual pain and restriction of movement in his left shoulder. He then resigned from his job on 6 August 2001 following a breakdown caused by stress. He had been working until a few days before his resignation and there was no contemporaneous indication of incapacity caused by his shoulder strain. 
[4]
The claim for cover was not lodged with the respondent until 16 months after the incident on 17 September 2001. He obtained cover on the basis of a deemed decision following a delay when the insurer failed to make a decision on his claim within the statutory time limit. The insurer rejected the claim for cover but Mr Jackson succeeding in establishing deemed cover under the Accident Insurance Act 1998. 
[5]
The insurer then declined a claim for weekly compensation on the ground that any incapacity could not have occurred while he was an earner. The respondent did not concede that there was incapacity. In the accompanying judgment I have found that Mr Jackson did not have incapacity when he had been an earner, or shortly after his resignation. 
[6]
Following an arthroscopy, Mr Denholm performed surgical repair of the SLAP lesion in January 2002 under the public health system. The condition did not resolve. In a letter in August 2004 Mr Krause said that he thought it was likely to continue to improve slowly. He said that the pain and restriction of movement continued “and the cause of this remains unknown”. Mr Krause recommended re-arthroscopy of the shoulder to determine any further pathology the state of the joint. The respondent declined to fund an arthroscopy and issued a decision suspending entitlements on the ground that the appellant's ongoing condition was not accident related. The authority for the decision is said to be s 116 of the 1998 Act which stated: 
“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. ”
Review 
[7]
The Reviewer referred to a report and opinion of 12 February 2003 by Mr Brett Krause, orthopaedic surgeon, stating the SLAP lesion found in Mr Jackson's shoulder was not only inconsistent with the mechanism of injury, but was also inconsistent with the subsequent symptoms. A repair of the SLAP lesion had effectively made his symptoms and restriction worse rather than better. Mr Krause thought that Mr Jackson would appear to have a chronic pain syndrome in his shoulder, the source of which seems unclear. He said “I am not at all sure that the injury related [sic] on 8 May 2000 is responsible for the subsequent events and current situation.” A similar conclusion was reached by Dr C T C Kenny, occupational specialist, who examined the diagnostic reports and notes but did not see the appellant personally. 
[8]
The Reviewer recorded the opposing submissions. In brief, the claimant said that the decision to suspend entitlements was premature because Mr Krause had said that he could not provide a further diagnosis until he had carried out an arthroscopy which he recommended. The insurer submitted, first, that Mr Krause and Mr Kenny did not believe that a SLAP II lesion would have been caused by the kind of accident that was described, secondly that it was not responsible for the consequences of surgery paid for under the public health system when SLAP lesion surgery had been done in November 2001, and thirdly that Mr Krause had declined to furnish a copy of his latest report, as it turned out on the instruction of Mr Jackson. The essential point was that the insurer did not accept that there was evidence connecting the shoulder problems with the covered accidental injury and that the insurer was not liable for the cost of further surgical investigation. 
Opinions 
[9]
The opinions of particular weight in this claim are those of Dr Kenny and Mr Krause. Dr Kenny did not see the appellant but he analysed radiology and surgical reports and general practitioner's advice. In his report of 21 May 2002, after orthopaedic surgery had been performed by Mr Denholm, he described the injury as a SLAP lesion (superior labrum anterior to posterior) which may result from certain kinds of force or which can occur spontaneously as part of degenerative change. He thought that an activity at work could have been the “last straw” which caused the injury which otherwise could have occurred at any time. He expected that a successful repair of the lesion would be likely to lead to resolution of the symptoms. In view of the known history of psychological stress, he thought that Mr Jackson could be likely to continue to experience pain despite resolution of the shoulder condition. In a further report of 10 September 2002, Dr Kenny described the injury as “reflecting a subacromial impingement syndrome, and probably resulting from degenerative changes in the acromio-clavicular joint (as diagnosed clinically by both his general practitioner (May 2000) and confirmed by the orthopaedic surgeon (Feb 2001)”
[10]
Dr Kenny did not agree that the SLAP lesion was a prime cause of the problems. He said: 
“When [exploratory] surgery identified a minor defect in the rim of the glenoid labrum (the collar-like rim of cartilage surrounding the ‘socket’ of the shoulder joint) this was considered to be cause of the problems experienced by Mr Jackson, despite other the clinical evidence of long-standing acromio-clavicular and rotator cuff changes and the operative findings of sub-acromial bursal thickening (a common accompaniment of long-standing rotator cuff impingement). 
A further shoulder operation was performed to repair this lesion but, not surprisingly given the initial presenting symptoms/findings, and Mr Jackson's wider circumstances, this apparently made no difference to his symptoms, and certainly did not restore his medical fitness for work. The opinion is maintained by some clinicians and researchers that such SLAP II lesions are a normal structural variant (i.e. are not pathological) and by others that these arises as part of a degenerative (age-related ‘wear-and-tear’) process. Certainly, such lesions can be present in asymptomatic individuals, and the finding on MR arthrogram or at arthroscopy of such lesions by no means indicates that any shoulder symptoms relate to the lesion. ”
[11]
Dr Kenny then set out his views as follows: 
“1.
It is significantly more likely that he developed the spontaneous onset of left shoulder symptoms, probably on the basis of some acromio-clavicular/rotator cuff degenerative changes, quite possibly noted after (but not necessarily caused by) physical activities (including moving shelves. 
2.
Given the description of the activities apparently undertaken around 11 May 2000 (moving shelves), this was not an activity which would be considered to be outside the physical capabilities of Mr Jackson, it was not considered of any consequence (did not mention the activity during several subsequent assessments/meetings), and did not lead to any time off work for the next 15 months. 
3.
Such an activity would be extremely unlikely to lead to the SLAP II shoulder finding at arthroscopy in November 2001 (see earlier report on mechanism for glenoid labrum tears), and I believe that this finding is entirely incidental both to the activities described and the shoulder symptoms reported. This is strongly supported by nature of the symptoms and clinical examination findings in the shoulder when reported by Mr Jackson, and the lack of any improvement following surgery. 
4.
Further, the shoulder symptoms had apparently been minimal or absent for many months, and had not resulted in any incapacity for work, until immediately after a serious incident at work in August 2001, resulting in Mr Jackson's employment being terminated. He then became apparently unable to work, attributed by Mr Jackson and by his general practitioner to his shoulder problems and stress resulting from the apparent level of pain. 
5.
There is evidence that, in addition to the stress likely to have resulted from the money from the safe, incident, there were significant psycho-social factors operating. These included, at least, marital separation issues. Mr Jackson had been seen regularly by his general practitioner during the period from June 2000, but clinical notes for these consultations have not been provided. Further, Mr Jackson has been treated with anti-depressant medication, strongly suggesting that he has an anxiety/depressive disorder. 
6.
There can be little doubt that given Mr Jackson's previous work record (despite earlier shoulder symptoms), and the work incident and marital problems, that his relative incapacity for employment subsequently is entirely or predominantly on the basis of psychological/psychosocial factors. The GP refers to ‘huge amount of stress over the preceding year’ (letter 28 Feb 02). 
7.
While it is quite possible that Mr Jackson may well now experience a greater degree of shoulder symptoms, have lesser tolerance for any shoulder symptoms, and may even have developed a (shoulder) regional pain disorder, this situation is very likely to be a direct response to the stresses which he has been experiencing over the period. Surgical procedures under such circumstances, and particularly in the presence of any central nervous system sensitisation (neurogenic pain), have a high likelihood of leading to increased symptoms and increased disability. 
8.
It is extremely difficult to see how, even if any minor shoulder injury had occurred around the time of reported onset of shoulder symptoms, this could have resulted in the stress-related symptoms for which Mr Jackson is now clearly receiving treatment. This is particularly the case when other, significantly more plausible, reasons exist as an explanation for his anxiety/depression symptoms. ”
[12]
Dr Kenny's views depended on his reading of the materials and he did not have assistance from Mr Jackson in order to understand the real dynamics of the accident or the beginning and continuity of symptoms since the accident. Nevertheless, the opinion appears to be based on facts consistent with those before the Court and the opinion cannot be regarded as influenced by any misunderstanding or extraneous consideration. On its own, it would be questioned for lack of engagement with the claimant himself. It is to be read however along with the views expressed by Mr Krause. 
[13]
Mr Krause wrote on 12 February 2003 to Mr Young-Gough, the lawyer representing Mr Jackson. Mr Krause examined Mr Jackson and obtained a history including a description of how the accident occurred. Mr Krause wrote in answer to some specific questions: 
“Question 1: 
This is a difficult case. From the examination and his history I see a man with quite a lot of apparent shoulder pain and restriction in movement but without much physical reason. From the injury described on 8 May 2000 the diagnosis subsequently of a SLAP lesion does not seem consistent with the mechanism of injury. This is also not consistent with the numbness and tingling in the side of the face, further evidence by repair of the SLAP lesion effectively making his symptoms and restriction worse rather than better. It would appear to me that this man has a chronic pain syndrome in his shoulder, the source of which seems unclear. I am not at all sure that the injury related on the 8th May 2000 is responsible for the subsequent events and current situation. 
Question 2: 
It may be that he was incapacitated from work given his symptoms as recorded over that time from the orthopaedic notes but one cannot be certain of the cause of this, see the answer to question 1. 
Question 3: 
I think the diagnosis is likely to be a chronic pain syndrome. I have concerns as to whether this is solely as the result of personal injury by accident. 
Question 4: 
There are clear limitations of function that the patient exhibits at the present time, part of this is ongoing from the initial presentation and part perhaps in complete rehabilitation from the surgery. He will obviously have difficultly doing physical work with his shoulder the way that it is and I doubt that this will be easy to improve. 
Question 5: 
Management of his pain would seem to be the most important feature here as many of the physical facts are not consistent with the outcome. It may be that a team approach from QE2 Hospital may be useful. In Dr Kenny's report there has been reference made to other assessments and I would concur with Dr Kenny's assessment in that regard. ”
[14]
Mr Krause cautioned against any further surgical intervention. He provided a supplementary report on 25 August 2004 in which he confirmed his earlier view. In summary he wrote: 
“I have not received any further information regarding this man since the last report. As one will see, his range of motion is better than it was in February 2003 and I think it is likely to continue to improve slowly. However he still has the pain and restriction of movement and the cause of this remains unknown. 
I think the next appropriate move would be to re-arthroscope the shoulder to see how the joint appears and what condition the repair is in. I think one has to raise the question as to whether the restriction of range of motion is a response to the surgery that was done, because he has now recovered good external rotation and this is unlikely to be a ‘frozen’ shoulder. 
It would be my advice to re-arthroscope the shoulder to determine any further path the state of the joint, as the next move and one would be able to have a reasonable chance to prognosticate after this information is received. ”
Decision 
[15]
The accompanying judgment concerning incapacity for the purpose of weekly compensation relates to a question of incapacity at a certain date. This judgment concerns the complete suspension of entitlements and looks at the more sweeping question whether the appellant's condition involving pain and restriction of movement to the extent that it continues, whether incapacitating or not, is a consequence of the covered strain injury. 
[16]
The Corporation suspended entitlements after considering specialist reports of Mr Kenny and Dr Krause. Both doctors expressed the opinion that the appellant's shoulder condition could not easily be connected with the incident accompanying the covered injury. The covered injury was a strain caused by a crushing or other force exerted while pushing heavy shelving. The appellant developed symptoms consistent with a pain syndrome associated with an abnormal or degenerative condition of the left shoulder joint and with mental and emotional stress capable of causing a spectrum of pain symptoms. 
[17]
While the opinions were expressed in different ways, they both contained a clear view that a causal link with the accident in May 2000 was improbable. They both considered that the pushing accident was unlikely to have caused a SLAP lesion. 
[18]
While the MRI appearance of the lesion was not serious, surgery was performed in January 2002 because of pain which appeared to be associated with the shoulder abnormality. The lesion was repaired but the symptoms continued. Mr Krause could make no further diagnosis without a re-arthroscopy which he recommended. 
[19]
The suspension decision was reached when the insurer believed that here had been sufficient investigation by way of MRI imaging and specialist reports to establish that there was no probable link between the May 2000 accident and the condition leading to ongoing symptoms. 
[20]
I agree that was a reasonable view. There has been no cogent opinion directed to the causation question and expressing the view that the May 2000 incident caused an injury resulting in pain and restriction of movement. A further arthroscopy would have diagnosed the present anatomical condition of the shoulder, but there is no indication that it would have assisted by identifying the abnormality as a consequence of the covered strain injury. Mr Krause recommended an arthroscopy for diagnosis and treatment, not to establish cause. I find that the respondent's duty to enquire in the circumstances of the injury had been discharged and no significant link could be established between the covered injury and the ongoing pain or disability. 
[21]
For those reasons the appeal must fail and it is therefore dismissed. 

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