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Accident Compensation Cases

Thirring v Accident Compensation Corporation (DC, 30/06/08)

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 17 January 2005, whereby it suspended entitlements to the appellant on the grounds that her current incapacity was due to a non-injury related condition, namely a primary pain syndrome. 
[2]
The background facts relevant to this issue may be stated as follows: 
In 1984 the appellant was employed as a typist-clerk. On 12 November 1984, she suffered a right shoulder strain whilst attempting to remove her cardigan whilst seated in her stationary motor car. She was aged 23 at the time. 
The appellant continued to work although she experienced increasing pain. The pain from her shoulder was such that she ceased work in December 1985. 
In March 1986 the appellant lodged a claim for cover for right shoulder sprain/strain. Cover was granted. 
The appellant was accepted as incapacitated and received weekly compensation. 
She returned to work in June 1986 but an exacerbation of her injury in April 1987 caused her to cease work permanently. She has not worked since. 
In August 1989 she suffered a low back injury for which she received cover and entitlements. 
In June 1991 she tripped and fell and suffered an injury to her right knee. This injury required arthroscopic cartilage repair on the medial side and removal of cartilage on the lateral side. She has cover for this injury as well. 
A considerable number of reports from various specialists have been created over the years and these were all considered by His Honour Judge Middleton in an Accident Compensation Appeal Authority decision where the appellant's continuing entitlement to weekly compensation was the issue, it having been ceased by the respondent in June 1989. 
His Honour Judge Middleton issued a decision on 22 July 1998, in which he determined that the appellant's ongoing problems, specifically her pain condition, was attributable to the shoulder injury of 1984, and he directed that weekly compensation be reinstated. 
In October 2004, the respondent requested Dr W E D Turner, Specialist in Occupational Medicine, to carry out a case review and give his opinion on the appellant's then medical condition and its association, if any, with her covered injuries. 
Dr Turner provided a report for the respondent dated 6 December 2004, and the bottom line was that in his opinion the appellant's current diagnosis was that of fibromyalgia pain syndrome, and he stated “ … the diagnosis is therefore beyond any real doubt, there is no evidence that this condition is injury-related as there is no ongoing injury lesion underlying her symptoms.” 
Consequent upon Dr Turner's report the respondent issued its decision of 17 January 2005, now the subject of this appeal. 
The appellant sought a review of that decision and at that review hearing the appellant represented herself. No further medical evidence was introduced. 
In a decision dated 26 July 2005, the Reviewer accepted Dr Turner's opinion, and found: 
(i)
that the appellant was no longer unable because of her covered injuries to engage in her pre-accident employment; and 
(ii)
that her current pain condition/fibromyalgia was not causally connected to any of her covered injuries. 
For the purposes of the appeal to this Court the appellant, through counsel, has introduced two reports from Dr R D Wigley, Consultant in Rheumatology, and the respondent, for its part, has introduced a supplementary report from Dr Turner. 
[3]
In this case, as earlier noted, the respondent relies upon the advice of Dr Turner as establishing grounds for suspension of entitlements, whereas the appellant relies upon the advice of Dr Wigley, which it is claimed is in accord with earlier medical reports which were considered by His Honour Judge Middleton in his 1998 decision, and which counsel for the appellant contends establishes that the appellant's chronic pain syndrome is attributable to her covered injuries. 
[4]
Dr Turner's report considered two separate issues: Firstly, whether there was any injury based reason why the appellant could not return to her pre-injury employment as a typist-clerk; and secondly, what effects of the original injury are still present today. 
[5]
Although the point seems not to have been appreciated by the Reviewer, the respondent's decision to suspend entitlements was simply that, a decision made under Section 117 of the Act. It was not a decision determining that the appellant was no longer incapacitated. Accordingly, the issue of incapacity is something of a red herring as the respondent, by its decision, seems to accept that the appellant is incapacitated but that the cause of incapacity is not related to any covered injury. 
[6]
For this reason I propose to consider Dr Turner's report only as it relates to injury and causation rather than capacity. 
[7]
Dr Turner had a number of medical reports for reference. The first point that he made was that he could find no evidence of any specific pathology in her neck, shoulders, arms, thoracic or lumbar spine, that could be related to any specific injury lesion which could be seen as the cause of her current symptoms. He therefore stated that in his opinion the appellant had a chronic pain syndrome with sufficient criteria, using the 1990 American College of Rheumatology recommendations, to diagnose a fibromyalgia pain syndrome. He stated that the appellant had 13 out of 18 trigger points and which indicated widespread chronic pain. 
[8]
Dr Turner noted that Mr Grahame Inglis, Orthopaedic Surgeon, back in 1988 had diagnosed the appellant with a chronic pain syndrome and this had been the diagnosis also of Mr Barrie Tait, Musculoskeletal Medicine Specialist. 
[9]
On the question of the appellant's ongoing chronic pain syndrome, and its relationship to the original injury, Dr Turner stated as follows: 
“In my opinion there is no evidence to conclude that the original injury is the cause of her symptoms. Mr Inglis, a pre-eminent orthopaedic surgeon in March 1998 concluded that the injury episode on 12/111/84 when she was struggling to get her right arm out of her jersey is not the cause of her chronic symptoms and I entirely agree with him. Clearly the same can be said of the incident affecting her lumbar spine when she was placed into the lithotomy position. ”
As earlier noted in the background, Dr Turner had stated that there was no ongoing injury lesion underlying her symptoms. 
[10]
Finally, Dr Turner advised that the appellant was suffering no residual affects of her original injury, that she was suffering from a primary fibromyalgia pain syndrome, that is a non-injury related condition. He stated that the original injury was spent. 
[11]
Dr Wigley examined the appellant in May 2006 and he too had a significant number of medical reports to refer to, including Dr Turner's report. Dr Wigley examined the appellant and his diagnosis was that although the appellant had widespread pain, there were not sufficient tender points to satisfy American College of Rheumatology criteria for fibromyalgia. His diagnosis was that of chronic pain syndrome, which he considered a preferable diagnostic term to fibromyaliga. 
[12]
Dr Wigley advised that in his opinion the cause of the appellant's pain syndrome was the pain that she had experienced from the injuries of her shoulder, low back and knee. He put it thus: 
“It is well established that any source of continuing pain can lead to increased sensitisation of the nerve cells and connections from the periphery right up to the brain (Nociception). These changes particular affect the dorsal horn of the spinal cord inducing hyper-sensitivity due to plastic changes (neuropathic) in the nerve cells. This allows one to build up a descriptive term which can be further classified as regional or widespread. In Mrs Thirring's case chronic nociceptive neuropathic widespread pain syndrome. In my opinion, this explains the pain in her neck and arms, and her back and may also increase the knee pain. Pain signals originating from each site affect the appropriate level of the spinal cord. The nerve cells send branches above and below each level so that the pain is not localised accounting for the more widespread pain in chronic pain syndromes. Sustained nociceptive pain signals from the periphery can lead to a chronic pain syndrome. In her case these signals derive from the shoulder, the low back, the knee and the gynaecological problems. Persistent pain from these (sustained nociceptive input) would all contribute to plastic changes in the nervous system leading to chronic neuropathic pain. ”
Dr Wigley also noted that there had been continuity of symptoms since the shoulder injury with a cumulative effect from the other injuries and that they all contributed to her chronic pain syndrome. 
[13]
Dr Wigley did not agree with Dr Turner's opinion that the appellant's symptoms were not attributable to any covered injury and he stated as follows: 
“ … She still has symptoms and signs on examination attributable to the original injury to the right shoulder. There has been continuity of the symptoms from that date and there were no such symptoms before that date. In my opinion the effects resulting from that injury are not spent. His apparent belief that fibromyalgia cannot result from injury is not based on sound evidence, and further, the diagnosis of fibromyalgia has not been established. ”
[14]
Dr Turner was asked to comment on Dr Wigley's report and he did so by letter dated 26 March 2007. His response was as follows: 
“There is nothing in Dr Wigley's report that would encourage me to change the view arising from the assessment of 30/11/04 and promulgated in my report of 06/12/04. There was no evidence to suggest that the injury event described by Mrs Thirring on 12/11/84 was at all significant. I prefer the opinion of Mr Grahame Inglis who provided a medical report dated 23/03/88 some 18 years before Dr Wigley's assessment. Mr Inglis is a very well respected and expert orthopaedic surgeon who diagnosed Mrs Thirring's right shoulder injury as, ‘minor’ and furthermore Mr Inglis opined ‘the report by Mrs Thirring of dislocating her right shoulder was a subjective assessment of her problem and she did not dislocate her shoulder’. Mr Inglis went on to say that the position in which her arm was placed and the activity she was performing with the extended arm in an adducted position was not the sort of position one would usually associate with dislocation. She also indicated a proximal dislocation, which does not occur. He diagnosed a pain syndrome which he was unable to relate to the original injury. 
I agree entirely with Mr Inglis and I do not accept the version of events described by Dr Wigley on page 10 of his report. On the balance of probabilities accepting Mr Inglis' expert opinion as the correct one it would appear that Mrs Thirring did not suffer dislocation of her shoulder and any injury that did occur was minor and that a pain syndrome was the predominant basis for her ongoing symptoms. 
Similarly Mr Ian Penny, another expert Christchurch orthopaedic surgeon, carried out an impairment assessment and was unable to award any incapacity for her right shoulder concluding that the issue of pain related to functional incapacity, there were no objective parameters and there was little to find other than slight limitation of cervical mobility. Again this throws into doubt Dr Wigley's clinical findings. ”
[15]
Dr Wigley was in turn asked to respond to Dr Turner. He commented as follows: 
“Dr Turner would be well aware that chronic pain syndromes can persist for many years. His view seems to depend on a belief that chronic pain syndromes are not caused by injury. I detailed my reasons why this can result from injury induced pain in my initial report (Page 14, last paragraph). As Dr Tait states ‘It's reality is not in doubt’. Subsequent research has provided detail on why this does happen. 
Dr Turner states ‘any injury that did occur in 1984 … was minor and is now well spent.’ I do not accept this statement. Even if that injury is well spent, and I do not accept that it is, it's continuing effect, chronic pain, is certainly not spent. He does not address the effects of the other injuries. ”
[16]
Both Dr Turner and Dr Wigley have referred to the 1988 reports of Mr Inglis, Orthopaedic Surgeon, and Dr Barrie Tait, Musculoskeletal Medicine Specialist. The point that can be taken from Mr Inglis' report is his identification of the appellant's pain syndrome as being severe. His statement on the matter is as follows: 
“Her pain syndrome has been so severe that she is unable to perform even the most trivial of activities, i.e., her domestic chores, taking notes in lectures and leaning on her arms at times can be unbearably painful She cannot hold a hose to water the garden. 
From ACC's point of view I cannot relate this rather extreme pain picture to the original injury or the type of work she was doing as a secretary. I really can find no good reason why ACC should have a longstanding ongoing responsibility for this girl. I feel that if she remains severely disabled she should be on some form of benefit rather than continued ACC. There is certainly no clear objective evidence today of significant injury. I certainly do not feel that she dislocated her shoulder. ”
Dr Tait's relevant statements are as follows: 
“ … As stated her continuing problem is the result of her accident and she has exhibited all the features of the chronic pain syndrome. The reason for the persistence of pain following what appears to be a minor injury is not able to be explained but its reality is not in doubt. Documentation of severe pain following minor injury dates back to 1863 and its recognition is fully accepted in the International literature. 
I am of the opinion that the ACC under the terms of the 1982 Act must accept Mrs Thirring's problem as their continuing responsibility in view of the clear-cut history of persistent physical findings, continuing pain and acknowledgement of this type of problem as being a consequence to injury by significant international figures in the area of pain research. ”
[17]
Both counsel made strong submissions in support of their respective points of view, but each accepted that the issue was whether or not it can be established that there was a causal link between the appellant's covered injuries and her chronic pain syndrome. 
Decision 
[18]
This is an appeal from a decision to suspend weekly compensation entitlements to the appellant on the grounds that her current incapacity was due to a non-injury related condition. That is the wording of the respondent's decision of 17 January 2005. 
[19]
Whilst the decision letter does not specify the statutory provision relied upon, it can only be, and I find, that the provision relied upon is Section 117(1) which gives power to the Corporation to suspend entitlements if it is not satisfied on the basis of the information in its possession that the claimant is entitled to continue to receive the entitlement. That is the state of affairs from the respondent's position. 
[20]
In line with the decision of Her Honour Justice Mallon in Ellwood v ACC (Wellington High Court 2005—485—536), where Her Honour identified that the wording of this particular subsection makes it incumbent upon the respondent to establish there is a sufficient basis for it to form the conclusion it is not satisfied, the initial onus is upon the respondent to establish a basis of it being “not satisfied”
[21]
In the present case, the respondent relies upon the evidence of Dr Turner, where the summation of his evidence is encapsulated in his advice that the diagnosis of chronic pain syndrome is not in doubt and that there is no evidence that this condition is injury-related as there is no ongoing injury lesion underlying her symptoms. 
[22]
I have set out in greater detail the reasoning by which he comes to this opinion and it must be said that prima facie this opinion would afford the respondent reasonable grounds to be “not satisfied”
[23]
Dr Turner noted that his view was similar to that expressed by Mr Inglis, Orthopaedic Surgeon, back in 1988, where he too said he could find very little objective evidence of injury to account for her extreme pain. Whilst Dr Turner also refers to the finding of Dr Barrie Tait, also from 1988, he omits to identify that Dr Tait stated, “The reason for the persistence of pain following what appears to be a minor injury, is not able to be explained but it's reality is not in doubt. Documentation of severe pain following minor injury dates back to 1863 and its recognition is fully accepted in the international literature.” 
[24]
This same theme has been dealt with in detail by Dr Wigley, who first of all identified her condition as being secondary chronic neuropathic pain syndrome, and which was the cumulative effect of the physical injuries that she had suffered to her shoulder, back and knee. 
[25]
Dr Wigley has restated an accepted medical phenomenon where a source of pain from an injury can lead to increased sensitization of the nerve cells and connections from the periphery right up to the brain, known as nociception. As Dr Wigley explained, and which I have set out earlier in this decision, confused signals are sent to the brain from the area where sources of pain originally occurred. The pain is real but the source has ceased to be, although it was the cause of the changes to the nerve cells. 
[26]
I have considered the respective reports of Dr Turner and Dr Wigley and find that Dr Turner seemingly sets his face against the accepted medical phenomenon of nociception, and has made his determination on the basis that if there are no physical signs of injury and therefore no physical causes of pain then the pain cannot be associated with physical injury. 
[27]
I take Dr Turner to be stating that for pain to continue to be causatively linked to physical injury, evidence of the physical injury must still be present. 
[28]
I find that this is not in accord with accepted medical opinion about the origins and cause of chronic pain syndrome and Dr Wigley and Dr Tait have clearly identified that medical acceptance. 
[29]
Dr Turner reinforces his opinion by saying that there are no residual effects of the original injury and that the appellant is suffering from a primary fibromyalgia pain syndrome that is not injury related. 
[30]
The evidence is that this appellant suffered increasing pain from the date of her shoulder injury, she having had no problems prior thereto. The pain was identified as being severe and chronic within four years of the shoulder injury and it has continued. As late as 1998 His Honour Judge Middleton identified the causative link and accepted that there was no evidence to suggest that the appellant's pain syndrome was not injury-related. 
[31]
In this present appeal, I find that the only evidence asserted is that because there is no evidence of physical injury the pain syndrome cannot be linked to it and is therefore of primary and unknown origin. 
[32]
I find it surprising that Dr Turner has not even addressed aspects and causes of chronic pain syndrome and acknowledged that it is an accepted medical fact that the process of nociception can arise from a sometimes modest or minor discrete physical injury. In the present case the appellant had in total three covered injuries which have contributed to her pain syndrome, as found by Dr Wigley, and in addition she suffered a gynaecological injury, not covered, but which Dr Wigley also considered would have had some effect. That non-covered causative factor however cannot derogate from the causes which were attributable to covered physical injuries. 
[33]
Whilst there is strong disagreement between Dr Turner and Dr Wigley as to the extent of the appellant's shoulder injury and whether there was a dislocation or not, and where Dr Turner's criticism of Dr Wigley's opinion seems largely to be based on his, Dr Turner's, view that Dr Wigley had greatly overstated the injury and that everything thereafter was therefore suspect, I do not consider that the nature or extent of that original injury is necessarily pivotal. 
[34]
It is a fact that the appellant suffered a shoulder injury which unusually caused her to experience pain and discomfort out of proportion to that type of injury, having regard to the usual expectations of recovery that a person could have. That is not the point as this Court has received expert evidence on numerous occasions which identifies that certain individuals can be more susceptible to the onset of a pain syndrome. 
[35]
Whilst it is the common perception that a minor injury should heal and the pain disappear, the fact is that this is not always the case and that in a small percentage of persons, the pain from the injury precipitates the sensitization of the nerve cells leading to nociception. As I have earlier noted, Mr Inglis noted and identified the appellant's pain as being extreme and severe, despite him assessing that she had not dislocated her shoulder. 
[36]
For the reasons therefore that Dr Turner has not given proper consideration to the concept of chronic pain syndrome, or fibromyalgia, as arising from a physical injury, but has chosen to consider that the chronic pain must be in tandem with the ongoing physical injury, I choose to accept the opinion of Dr Wigley that there is a causative link between the appellant's current chronic pain syndrome and her covered injuries. 
[37]
For the foregoing reasons, therefore, I find that the respondent's decision to suspend entitlements was wrong and it is hereby quashed, with the consequence that the appellant is entitled to have her weekly compensation reinstated as from the date it ceased. 
[38]
The appellant being successful, I allow costs in the sum of $3,000 together with qualifying disbursements. 

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