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Accident Compensation Cases

O'Neill v Accident Compensation Corporation (DC, 21/01/09)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
This is an appeal against a decision by the Corporation suspending the appellant's entitlements for a lumbar pain condition on the ground that it was no longer the result of a back strain injury that the appellant suffered on 6 March 2004 when using a garden weed-eater. 
[2]
Before the gardening injury, the appellant had been seen by a number of medical practitioners who diagnosed her as suffering from scoliosis. In a report in January 2003, after an MRI scan, Dr Fitzjohn, specialist radiologist, diagnosed a marked lumbar scoliosis concave to the right, which was apparently longstanding. In March 2003 Mr Hunter, orthopaedic surgeon, confirmed a severe thoracolumbar scoliosis extending from T10 to L3 measuring approximately 80 degrees. He suspected that Ms O'Neill's back was about to decompensate and pain would become a recurrent problem. Outpatient letters in 2003 written by Mr Peter Hunter and Mr Chris Hoffman, both orthopaedic surgeons, confirmed the diagnosis. There is no dispute that the appellant suffered a scoliosis. While she has maintained that it was caused by treatment some years ago, it is clear from the reports that the scoliosis was an idiopathic abnormality and was not caused by trauma. Dr Hunter wrote: 
“Xray shows a scoliosis extending from T10 to L3 measuring approximately 80° and it looks as if there is some commencing subluxation at L3/4. 
This is a significant problem to deal with. I suspect her back is about to decompensate and pain will become a recurrent problem. At present no specific action is necessary but she should be seen again in about six months. Not necessary for another xray but for assessment so that should the situation continue to deteriorate some thought must be given to a stabilisation of the situation by a spinal fusion. ”
[3]
On an emergency medical services report of 6 March 2004, Dr Talbot noted “done something to her back .. worse last few weeks .. now worse with weedeating”. In a report dated 1 April 2004, Dr Smith at Capital & Coast Emergency Service stated that the appellant was suffering from “decompensation of scoliosis causing increased acute episode frequency and peripheral symptoms”. The report did not mention an acute episode and Dr Smith noted “overall has been ‘good’ for the past six months”. The appellant's covered injury refers to 6 March 2004 when she strained her back while using a garden weed-eater. A number of reports noted the garden injury as occurring on 6 July 2004, but the difference in dates has not been material to the diagnosis. 
[4]
In an x-ray report dated 11 May 2004, Dr Kerr consultant radiologist found: 
“There is a marked thoracolumbar scoliosis with lateral curvature of the thoracic spine convex to the right and compensatory lateral curvature of the lumbar spine convex to the left. There is associated multi-level disc degenerative change, particularly laterally to the left of the lower thoracic levels. ”
[5]
Other reports and clinical notes were consistent in diagnosis. 
[6]
On 20 May 2005, Mr Sherwood orthopaedic and spinal surgeon, examined the appellant for the first time. He stated in his report that: 
“Most of the history is well detailed in the hospital notes, but she has an adult form of an adolescent left-sided lumbar scoliosis. She said this was caused by injections in the spine in her twenties, but I think this is highly unlikely, and it is more likely that she had an adolescent lumbar scoliosis which has progressed somewhat throughout adult life and come to her attention later in life. A couple of years ago she was getting a lot of pain, but with physiotherapy, acupuncture and TENS she has been doing very well. She said she feels a 100% better than a year ago. ”
[7]
Branch medical adviser, retired neurosurgeon Mr Graham Martin, reported on 12 August 2005 that in his view the medical evidence indicated that the appellant's current condition was caused by scoliosis and not the 6 March 2004 injury. The Corporation then issued its decision on 23 August 2005 that the appellant's current condition was no longer the result of her personal injury of 6 July 2004. 
[8]
There are now three key medical reports addressing the question of a causal link between the appellant's condition and the covered injury or the underlying scoliosis. The respondent's position is that the covered injury was no more than a transient strain, while that the scoliosis was at a point where decompensation and more serious symptoms were bound to occur and did so. 
The medical reports 
[9]
Mr Sherwood examined the appellant and reported on 8 February 2007. In his report he answered a list of questions provided by Mr Jonathon Miller acting for the appellant. As to the accident, he said: 
“Three years ago she had an accident where she developed a back pain while she was weed eating. I was unable to obtain from the patient specifics regarding a traumatic event. She just told me that her back got sore after the event. She has been in chronic pain for the last two years. She has suffered 10 falls in the last two years. ”
[10]
Mr Sherwood considered that “a significant proportion” of the appellant's current condition was caused by her pre-existing scoliosis, with contribution to her back pain from the mechanical and anatomical factors associated with the scoliosis and the effects of gravity on the severe curve. He considered there was no clear correlation between a traumatic event which brought on her pain and the condition which she has now. In his view it was unlikely that any part of the scoliosis was caused by trauma. 
[11]
In relation to a question concerning a link between the traumatic back events and onset of symptoms, Mr Sherwood wrote: 
“Long-term studies of scoliosis patients who have not had surgical treatment do show increased morbidity as they get older. Scoliotic curves do progress at approximately 1° per year throughout adult life due to the effects of gravity and muscle tone. The uncertainty for Cathy is that we will never know just how long she would have coped with her back without pain if it had not been for the purported injury. The same dilemma applies to patients with pre-existing natural age-related changes on their backs who then have an accident and are never the same again. ”
[12]
Mr Sherwood believed that the likely cause of the appellant's current pain was degeneration related to her scoliosis. He did not think that she had a chronic pain syndrome. 
[13]
Mr Hoffman reported on 4 April 2007 after examining the appellant. He noted that she had been recorded as having a left sided scoliosis, T10/L2. He was unaware of any change since examination in 2005. He said that it is not uncommon for there to be some facet joint degeneration in the presence of such a scoliosis as a secondary phenomenon. It appeared to be an idiopathic scoliosis that is normally identified in the adolescent age group. The appellant may not have had it identified at the time when she was seeking treatment as a teenager, but no documentation was available. Mr Hoffman considered that most of the injuries that the appellant could recall in recent times had been more likely to have aggravated her scoliosis rather than to have produced any structural change to her back. He was unaware of any injuries that would have contributed to her scoliosis. 
[14]
In answer to the specific question of injury cause, he said: 
“I am unaware of any traumas documented by ACC prior to 2003. There have been some traumas that have occurred between 2003 and 2004 but I don't think they have had any demonstrable affect on her current condition and are unlikely to be producing any lasting physical affects including degeneration. I feel the degeneration that her spine has undergone is due to the scoliosis. ”
[15]
Concerning the question of traumatic precipitation of symptoms, Mr Hoffman wrote: 
“It is difficult to be certain but it would appear from the xray record that she has had some degenerative process occurring in her back prior to the repeated traumas that have been documented. Therefore I think it is unlikely that these traumatic events have brought the scoliosis to the surface. 
The degenerative change that occurs in the scoliosis is more likely to do that and it was going to do it anyway. It is impossible to say whether these traumas have enhanced or accelerated that process. ”
[16]
Dr Newburn also examined the appellant. He reported on 2 August 2007, describing severe pain experienced by the appellant after the weed-eating incident, and her consequent impairment in daily functioning and development of secondary symptoms. Some of those symptoms reflected the build up of a major depressive episode. 
[17]
Dr Newburn's report touched on background issues of childhood development, emotional trauma and mental health. In dealing with the scoliosis, he accepted that is was an idiopathic condition but he saw it as progressing by way of am episodic set of back related symptoms secondary to trauma, rather than characteristic relatively chronic progression. In his view, her index injury in 2004 was different from her previous injuries. In earlier instances she had continued working and had recovered from symptoms, but the clinical history gave more weight to the notion that there was an injuring event which is associated with her ongoing symptoms. 
[18]
He said that, given the acute nature of the onset of this injury, it would seem “remarkably unlikely” that the scoliosis was the cause of her symptoms. He said: 
“This does not of course mean that her scoliosis is in no way associated with the development of subsequent symptoms, but simply that it could not be logically considered the primary causal factor. If this were the case, then one would have expected a consistent set of symptoms to have been occurring earlier in a gradual fashion, rather than a stepwise onset of symptoms. ”
[19]
Dr Newburn's report dealt with psychological factors that have a bearing on the appellant's way of dealing with pain and that a “denial of the significance of pain at periods has meant that she has worked herself beyond tolerance”. He considered that multiple factors lead to her current presentation, and finally: 
“She has also developed an idiopathic scoliosis, but this has not caused consistent or steady symptoms. Rather, her earlier experience of back pain has been associated with the development of pain and injury, followed by a period of recovery, in the absence of avoidance of vocational activity. 
Given the above, and in spite of a range of other variables that may influence current behaviours and presentations, Ms O'Neill has sustained an injuring event in July 2004 which has led to a set of symptoms. Therefore, on the basis of probability, it must be considered, given the above arguments, that this injuring event is a significant and substantial factor in the presence of her current symptoms. ”
Submissions 
[20]
Mr Whalley for the respondent submitted that the opinions of Mr Sherwood and Mr Hoffman should be given significant weight because the appellant's condition and possible causes fell in their specialist field of expertise as orthopaedic and spinal surgeons. Furthermore, they both knew the appellant from the public heath system and had both examined the appellant. Mr Whalley submitted that both specialists gave clear answers to the question of causation. 
[21]
It is the respondent's position that, at least by the time of its decision on 23 August 2008, the appellant's condition was caused by her underlying medical condition that is to say, caused wholly or substantially by a non work related gradual process, or caused wholly or substantially by the ageing process. 
[22]
Mr Lakshman for the appellant referred to the circumstances of the accident and the appellant's situation. The reports and the review evidence record that she was under a good deal of stress and had already suffered physical abuse at the hands of her partner. She was caring for three children and working as a cleaner. She said that the pain she experienced following the accident was different from back pain she had experienced before. She had a lump that she did not notice until it was pointed out to her by her local dairy owner. Her son assisted her to the after hour medical centre. She could not lie flat. She had trouble sleeping and said that she stopped sleeping and could not function normally at all. She was so restricted in looking after her home and children that she begged CYPFS to have her children looked after. She described how the pain spread and she experienced other stressful symptoms, all of which flowed form the injury in March and continued at the time when her compensation was suspended. 
[23]
Mr Laksham traversed the principles relating to an appeal by way of rehearing and the test requiring the Corporation, and the Court on appeal, to suspend only if there is enough evidence for it to be not satisfied that the claimant is entitled to continue receiving the entitlement. I accept of course that the Court is required to consider the question of suspension de novo. The appellant is not required to show that the Reviewer was wrong. The approach to possible suspension of entitlement is discussed in Ellwood v ACC (unrep. High Court, Wellington Registry CIV 2005-485-536, 18 December 2006). The statutory provision is s 117 of the Act which provides: 
“117 Corporation may suspend, cancel, or decline entitlements 
(1)
The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. 
 ”
[24]
Justice Mallon in Ellwood said: 
“[63]
… If the ACC/the Reviewer/the District Court is ‘not satisfied’ then the evidence has not persuaded them that there is a right to entitlements. That may occur where the evidence on the balance of probabilities establishes no right to entitlements. However it might also occur where the claimant has not established on the balance of probabilities that there is a right to entitlements. In that situation (if the evidence was in balance or unclear) the ACC would not be satisfied that there was a right — it would be uncertain. 
[64]
In contrast if the test required the ACC/the Reviewer/the District Court ‘to be satisfied that there is no right to entitlements’ then that test would not be met where the evidence was in balance or unclear. They could not be satisfied because the evidence would have left the position unclear. That said, the ACC must make reasonable decisions. In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. Mr Beck's proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of ‘is not satisfied’ is not met. If there is a sufficient basis then ACC can be ‘not satisfied’ of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage. ”
[25]
In Ellwood, Mallon J discussed cases in which it had been held that the party seeking to remove a right had the onus. Mr Lakshman also referred to those cases. 
[26]
The essence of the appellant's claim is that the consequences of the injury in March 2004 were so distinct that they provide evidence of probability of a new injury and the Corporation could not reasonably be satisfied that there was not a new injury. Mr Lakshman submitted that the specialist opinions were almost entirely directed to the scoliosis and did not separately consider whether the injury was a probable substantial contributing cause. For example, Mr Hoffman on 4 April 2007 wrote “I have seen Catherine in the Public Hospital in relation to her scoliosis”, whereas in fact he was supposed to be seeing her in relation to her injury. He did not produce a report relating to the injury. 
[27]
Mr Newburn's opinion was favourable to the appellant. Mr Lakshman submitted that the question was within Dr Newburn's specialist knowledge and that his opinion is an important refutation of the findings that deal only with scoliosis and which do not give adequate consideration to a collateral and contributing cause. 
Decision 
[28]
The evidence that the appellant's condition is caused almost entirely by a scoliosis is very strong. It is a conclusion reached by two specialists who have been presented with the causation questions drafted by the lawyer then acting for the appellant. Mr Lakshman submitted that the opinions did not directly address the injury question. That may be so, but I do not accept that the specialists failed to direct their attention to the injury. My reading of the reports is that the scoliosis was the clearly implicated cause of the symptoms presented by the appellant to the specialists. In terms of diagnosis they did not consider the March 2004 injury was significantly involved. In this case, diagnosis and cause were essentially the same thing and they were unable to find a continued link to the gardening injury. The questions addressed to the specialists did not carefully probe an injury as a possible cause, but there is no reason to believe that the answers would have been any more helpful to the appellant if the questions had been more directly addressed to injury cause. Clearly the specialists regarded non-injury scoliosis as the effective cause of the appellant's condition. The gardening injury was never specifically diagnosed. It appeared to be a strain injury with the potential to have caused some spinal damage or destabilisation that could not be observed by scan or x-ray. The existence of an injury could only be assumed or derived from the symptoms, which did not suggest more than a strain. 
[29]
It is common to find medical opinions that a minor injury has made symptomatic a condition that was previously unsymptomatic. In such cases the short-term effects may well be regarded as being caused by the accident, because they would not have occurred but for the accident. Long term effects are often found to be caused wholly or substantially by the underlying ageing or disease condition once the accident related physical injury has resolved. But there are also cases where the onset and continuation of symptoms may be of greater significance in the context of causation, and where the injury related symptoms are not fairly to be disregarded as a cause of an ongoing condition. 
[30]
A difficulty for a claimant is that medical opinion is sometimes irreconcilable with the claimant's own experience of pain from its onset at the time of an injury. But it is unavoidable that the decision about eligibility for compensation has to be made on the basis of opinions derived from objective clinical and medical reasoning. 
[31]
The central question in this case is whether the gardening injury remains a substantial and effective cause of continuing pain and disability. In considering causation, there may be more than one effective contributing cause. There is a viable argument that the degree of aggravation or change of symptoms is evidence of a supervening injury. Predisposition to injury because of the appellant's scoliosis condition would not preclude cover if a supervening injury remained a contributing cause of any significance. 
[32]
Those possibilities are expressed here only as a background for weighing the evidence. The evidence in this case leaves a possibility that the appellant continues to suffer the consequences of a new injury, but that is as far as it goes. The evidence as a whole shows a probability that the appellant's condition is caused wholly or substantially by scoliosis that was itself not caused by injury. It is reasonable to accept the medical opinions that the appellant's back was likely to decompensate and did so. The gardening injury would have been a precipitating factor, but something of that kind was bound to occur. My understanding of the evidence is that decompensation could have occurred through additional stress at any time, and may even have occurred without any further injury. 
[33]
The fact that the appellant experienced different and more persistent pain may have been because her back was unable to function as it had before. It does not necessarily follow that the different kind of pain was a symptom of a new injury. The medical reports do not discuss that point separately from the main diagnosis, probably because the injury was not diagnosed for treatment. I acknowledge Mr Lakshman's argument that the opinions are lacking in some respects for a full analysis of causation. I bear in mind that findings of causation may be reached differently from a legal as opposed to a scientific perspective. In the latter case a greater degree of certainty is required. 
[34]
Dr Newburn's opinion is important evidence for the appellant. As a neuropsychiatrist he is qualified to deal with neurological or psychiatric disorders system related to injury to parts of the body. In this case his speciality area is relevant but the experience of an orthopaedic surgeon is more clearly suited to correct diagnosis of the origin and cause of the appellant's condition. It is possible that Dr Newburn may have taken a more careful history and may have identified facts that make a clearer case for continuing injury consequences. On balance however, I consider that the orthopaedic specialist opinions should be given greater weight. 
[35]
On the whole of the evidence I find that the Corporation was correct in reaching a conclusion that it was not satisfied, that is to say it could not be satisfied, that the gardening accident was a cause of substance for the appellant's continuing pain and disability. It was shown to be a cause but for which the symptoms would not have developed at exactly the time of the injury, but it is not shown to be an substantial cause of the persistent condition, because that condition was likely to have developed in any case from decompensation. 
[36]
I do not think that this was a case where the evidence was evenly balanced or unclear. The Corporation had sufficient evidence to decide that the entitlement should be suspended because it was not satisfied on the basis of the available information that the appellant's continuing condition was caused by injury. 
[37]
For those reasons the appeal is dismissed. 

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