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Accident Compensation Cases

Hemmings v Accident Compensation Corporation (DC, 21/08/09)

Judgment Text

DECISION OF JUDGE J. CADENHEAD AS TO LEAVE TO APPEAL TO THE HIGH COURT 
Judge J. Cadenhead
[1]
This is a decision as to whether the appellant should have leave to appeal against the decision of Judge Beattie dated 24 December 2007. 
[2]
The issue in this appeal is the correctness of the respondent's decision of 6 May 2002, whereby it cancelled entitlements relating to a back injury suffered by the appellant in April 1997 on the grounds that his ongoing back problems were not attributable to the covered injury, but were wholly or substantially attributable to degeneration and the ageing process. 
[3]
For the appellant, Mr Sara argued the case on the basis that the medical evidence identified that the appellant was still suffering from injury related problems, even if non-injury factors were also present. Mr Evans for the respondent submitted that the medical evidence was such that the effect of the injury for which cover had been granted, namely the prolapsed disc at L4/5, had resolved and that the appellant's ongoing back problems were due to the advanced degenerative state of his lower back. 
[4]
His Honour said that decisions such as the one under review in this case required a consideration of medical evidence which is largely determinative of the matter: that is a factual consideration and analysis of the medical evidence was required. 
Factual Background 
[5]
In April 1997 the appellant, then aged 53 years, suffered an acute back injury. The nature of the injury is well described by Dr Borowczyk in a subsequent report when he stated: 
“Its nature was that of a disc prolapse, which happened in response to a lifting accident with forward flexion and rotation of the lumbar spine under load, the increased pressure of which caused his L4/5 disc to prolapse para centrally to the left. ”
[6]
The injury was accepted for cover and was also accepted as causing incapacitation. 
[7]
The appellant was referred to Mr Grahame Inglis, orthopaedic surgeon, and he first saw the appellant shortly after the date of injury. In November 1997, Mr Inglis reviewed the appellant's position, and in particular canvassed the possibility of surgery. Mr Inglis' report to the respondent of 18 November 1997 stated, inter alia, as follows: 
“Neville returns to see me today. I last saw him back in May with a L4-5 disc prolapse which was resolving. Most of his leg pain improved. He tells me today thought it never really entirely went away. Over the last few months it has got a lot worse and now is a major problem to him. He wishes now to have something done about it. Prior to considering this further he requires a repeat CT scan to check what has happened to this disc to ensure that nothing has changed. I will arrange this and review him. ”
[8]
The treatment proposed was left L415 disc decompression. 
[9]
It is the case that the appellant put that surgery on hold on experiencing an improvement in his back, but it is also the case that that improvement did not last and he returned to Mr Inglis in or about June 2000 at which time a second CT scan on the appellant's lumbar spine was carried out. In the radiology report of that scan there is reference and noting of the findings of the May 1997 scan. 
[10]
Following that CT scan Mr Inglis reported to the respondent on 4 July 2000 and made a request for approval for surgery. The relevant passages of his report are as follows: 
“His CT scan also reveals severe stenosis at the 4-5 level with changes in the disc, fact hypertrophic and quite significant stenosis. There are lesser but also significant changes at the 3-4 level with a very desiccated looking disc. His stenosis though seen on CT scan at the 3-4 level is not as severe as his clinical picture. There are also significant changes at the 5-S1 level. 
Neville is now getting into very significant problems with his degenerate lumbar spine. He has gross degenerate changes at the 3-4, 4-5 level with stenosis. He is developing very significant leg symptoms. I feel he requires a decompressive procedure, possibly stabilising him from L3 to 5. I feel we should get on and do this at some stage in the near future. ”
[11]
The treatment proposed by Mr Inglis was stated as being as follows: 
“Decompress L3 to 5 inclusive, stabilise L3 to 5 with Moss Miami instrumentation. ”
[12]
It should be noted that in the place where the treatment provider is required to state whether he believes that the recommended treatment is required to treat a condition that is the result of personal injury caused by accident, Mr Inglis checked the option “not sure”
[13]
His Honour said surgery was carried out on 19 September 2000, and whilst the Court has not been provided with any further report from Mr Inglis pertaining to that surgery, that surgery and its aftermath are noted and commented on by subsequent specialists who have been involved with the appellant's ongoing condition. 
[14]
In March 2002 the respondent sought the opinion of Dr Xianghu Xiong, a specialist in rehabilitation medicine with special interests in injuries related to the spine and spinal cord. Dr Xiong's brief, as noted in his report, was to provide an opinion regarding the patient's medical diagnosis and rehabilitation recommendations. He had reference to Mr Inglis' reports and notes and the CT scans. 
[15]
Commenting further on the back injury, Dr Xiong stated as follows: 
“As far as the back and the leg symptoms are concerned, he did have a minor disc prolapse at the level of L4.5 for which Mr Grahame Inglis initially made the diagnosis. Again here I was not entirely sure about the relationship of his injuries towards the medical conditions however he appeared to have grosslydegenerative changes at the L3.4 and L4.5 levels. Overall I would consider his impairment and symptoms in the low back and left leg are caused substantially by degenerative changes and degenerative foraminal stenosis rather than injury related factors. Considering the inconsistent physical signs, however, his leg symptoms are most likely psychiatric or psychological manifestations rather than based on organic causes. Factitious disease is the most likely diagnosis, though clinically there is difficulty in differentiating it from conversion disorder or compensation neurosis. His history of family social problems and depression could be a significant contributing cause. 
At this stage I do not feel that any further medical or surgical intervention is indicated. 
From the medical point of view his disability and his symptoms and clinical manifestations are not entirely consistent with his background medical condition. I would therefore feel that there are no medical contra indications for him to return to light duties especially on a part time basis. ”
[16]
The respondent sought further clarification from Dr Xiong and he provided a second report dated 29 April 2002. That letter stated as follows: 
“Thank you for your letter dated 23 April 2002 asking me to clarin, Mr Hemmings current clinical presentation impairment and incapacity with respect to his back injury sustained on the 18th April 1997. 
Unfortunately, due to the complexity of Mr Hemmings problem, namely the causation factors: 
1.
Marked advanced degenerative lumbar spine condition including L3.4 and 4.5. 
2.
Disc prolapse at the level of L4.5 
3.
Probable psychiatric fictitious disorder. 
It would therefore be very difficult to attribute a percentage figure in terms of preexisting degeneration vs injury related trauma. 
The disc prolapse at the level of L4.5 was probably related to the injury however it occurred on the background of significant degeneration. In Mr Grahame Inglis' notes in 1997 he also commented that his symptoms from the L4.5 disc prolapse was resolving. 
Taking into consideration his symptoms and signs (apart from the significant psychological or psychiatric overlay), it would appear clinically that his symptoms and signs are consistent with the radiological findings particularly marked as spinal stenosis at the L4.5 level and the severe foraminal narrowing rather than focal disc protrusion. It was in my opinion that Mr Hemmings back problems are caused substantially degenerative changes and degenerative foraminal stenosis rather than injury related factors. 
From the clinical point of view I would regard the degenerative changes as the underlying causes for more than 85% of Mr Hemmings current medical impairment. In my opinion there was very little contribution from the injury related trauma. ”
[17]
It was consequent upon that report that the respondent then issued its decision on 6 May 2002, which is now the subject of this appeal. The reasons for its decision as contained in that letter stated as follows: 
“As stated above the Corporation holds the view that the current effects of that back injury are caused substantially or wholly by the ageing process and therefore no entitlement to weekly compensation exists. In arriving at this determination ACC is able to revise decisions made under former Acts, Part II, Section 390(3) of the Injury Prevention, Rehabilitation & Compensation Act 2001 enables ACC to do this. ”
[18]
The letter went on to advise that the appellant's entitlements in relation to his shoulder injury were not affected. 
[19]
For the purposes of a review of that decision Mr Sara for the appellant sought the opinion of Dr Jim Borowezyk, musculoskeletal physician and he examined the appellant for the purposes of his report. Dr Borowczyk noted that the appellant described himself as suffering constant pain in his left lower lumbar region, which radiated out from his left buttock and down into his left leg. Dr Borowezyk noted that the injury had been diagnosed as an L4/5 disc prolapse to the left and he went on to state as follows: 
“This injury was not operated on at the time, and by the time he eventually came to operation in 2000 he had other sequelae from this injury particularly from the degree of foraminal stenosis at the left L4/5 level, and changes including disc desiccation and narrowing and no doubt facet joint hypertrophy also as a result from his originally [sic] injury. 
Mr Hemmings continues to have a chronic low back pain problem as a result of all this and it is unlikely that his pain will spontaneously resolve, or be particularly amenable to surgical intervention. He does not have the ability to work which he thoroughly regrets, and this has resulted in reduction in his overall ability at nearly all tasks and a reduction at his social interaction. 
As reported by Dr Xiong he does have degenerative changes in his lower back, and these are secondary to his injury. Furthermore degenerative changes per se are not the cause of ongoing chronic low back pain and this is well documented in the scientific literature. 
In my opinion Mr Hemmings current unfortunate state of affairs is a direct consequence of his original injury and result in secondary changes, particularly the foraminal stenosis and the effect of the disc continuing to give him chronic pain which is particularly intractable. ”
[20]
The review hearing in effect consisted of a consideration of the respective reports of Dr Xiong and Dr Borowczyk and in his decision of 16 September 2003, the reviewer stated as follows: 
“Having considered the reports of Dr Xiong and Dr Borowczyk I find that each has noted similar conditions but has reached a different conclusion, . I find each of the two doctors competent to determine whether the patient's current condition is related to injury or to degeneration. ”
[21]
The reviewer then went on to rule against the appellant on the basis that he had not discharged the onus of proof as he found that the medical evidence did not tip the matter in the appellant's favour. 
[22]
Although the appellant, through counsel, lodged a timely notice of appeal against that decision, that appeal was not heard until 21 November 2007. For the purposes of the appeal, Mr Sara introduced a report from Mr Nicholas Finnis, neurosurgeon, who was treating the appellant for ongoing problems and was seeking to have the respondent accept responsibility for further surgery. 
[23]
His Honour said in a report to Mr Sara dated 17 April 2007, Mr Finnis stated, inter alia, as follows: 
“The MN scan which he had on 04/12/06 showed marked loss of disc space height at the L2/3 level with endplate changes. There is also spondylolisthesis or a slippage. There was marked hypertrophy of the facets. This was causing a significant and quite severe central canal narrowing. These changes at the L2/3 level were not apparent on the MRI scan of 10/07/02 where the reporting radiologist comments on there being only mild spinal stenosis caused by a broad- based disc bulging and some hypertrophic changes in the facet joints. He also had an x-ray on 04/12/06 that showed an increase in spondylolisthesis at the L2/3 level than that demonstrated on films done in May of that year. 
From my assessment I felt that Mr Hemmings' symptoms were related to the problems seen at the L2/3 level. In particular, this was the degree of central canal stenosis and also the likely instability at this level. I did not think he would settle well with ongoing conservative management and that he would get symptomatic benefit from decompression and stabilisation. I therefore made a request for funding to ACC. . 
The underlying structural basis of his problem is largely degenerative or spondylotic. This is based on the very narrow disc spaces and the more chronic endplate changes seen at the L2/3 level. These are modic type 3 rather than type 1, as reported by the radiologist, There is also facet joint hypertrophy causing ligamentum flavum hypertrophy contributing to the spinal stenosis. There is a disc bulge, but the appearances are more typical of that seen with a more chronic process rather than an acute disc prolapse, although more laterally in the foramen there does appear to be a more focal component. This latter protrusion would not be accounting for the dominant part of his symptoms. There appears to have been progression of these changes since the scan in 2002. The majority of these symptoms, therefore, are more long standing and probably cannot be attributed to any acute event, such as occurred in May 2006, However, it is not possible to determine whether he could have sustained some further disc disruption with the injury and some of the bulging we are seeing is a more acute structural process. 
The second issue which I considered at the time of my consultation and initiated referral to ACC for funding was the association of the degeneration at the L2/3 level as a consequence to his previous problems. I had at the time of the consultation assumed that the previous surgery he had was as a consequence of a previous injury. Mr Inglis makes the comment that the decompressive surgery was needed for spinal stenosis which was largely secondary to degenerative changes. It is of note, however, that the symptoms he had were also related to a previous injury in 1997. At this time he sustained a large disc prolapse at the L4/5 level, possibly as a consequence of the injury he describes. He also had a prolapse at the L3/4 level. It is quite possible that the sequelae of the disc prolapse has been an influence of the progression of the more chronic degenerative changes seen three years later when he presented with problems leading on to surgery. The subsequent fusion at the L2/3 and L3/4 levels may well have influenced in turn the progression of degenerative problems at the L2/3 level due to the adjacent level effects of increased load. This degenerative process, therefore, can be associated through his previous surgery and in turn are quite probably related to the previous acute disc prolapses as a result of injury. The request to ACC for cover of the operation was largely based on the current problem being the result of earlier trauma. ”
[24]
Mr Finnis was then asked to answer three questions, those questions and his answers being as follows: 
“Has physical injury occurred? 
A
The dominant pathology at the L2/3 level are changes which are well recognised as processes of a chronic nature. It is not possible to distinguish whether some further trauma to the disc causing disc disruption has been the final structural change which has led to the exacerbation of his symptoms and therefore the need for surgery. This, of course, is speculative but possible. 
Q.
What is the nature of the injury? 
A.
The nature of the physical injury is probably further disruption to the discs. There may be underlying degenerative changes, as described above, however any further disruption here may be consistent with your eggshell principal [sic] mentioned in your letter. 
Q.
Is surgery required to treat this injury? 
A.
If the above assumptions are followed and considered to be appropriately correct then the current surgery is required to treat the injury. Prior to the injury he had a level of symptoms which did not require surgery. The injury has led to structural changes which have exacerbated his symptoms sufficiently such that surgery is now considered appropriate. ”
The Decision 
[25]
Both counsel addressed me on legislation, and in particular the impact of the decision of Her Honour Justice Mallon in Ellwood (High Court Wellington (CIV 2000-485-386). In that decision Her Honour was considering the provisions of section 116 of the 1998 Act, which is exactly the same wording that now appears in section 117 of the 2001 Act. At paragraphs 62-65 Her Honour considered the wording and noted that the wording was in fact the expression of a negative. It was that wording of a negative as opposed to a positive that caused her to observe as follows: 
“[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 (f 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 clarini 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. 
[65]
I therefore consider that s 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis. The ‘not satisfied’ test is not met in these circumstances. ”
[26]
In the present case the reviewer found that the medical evidence that he had before him was evenly balanced and he therefore ruled that the appellant had not discharged the onus of proof which was said to be on him. That decision was of course made some years before the Ellwood decision was delivered and the reviewer cannot be criticised for the finding that he made. 
[27]
His Honour said that the Court now must look at the evidence in the light of the test required of it as set out in Ellwood, namely is the evidence clear to the effect that the Corporation could say that it was not satisfied that there was a right to continued entitlement. As Justice Mallon said, if the evidence is unclear or uncertain, that test cannot be met. 
[28]
The matter which the Corporation required to be not satisfied about, in the case of this appellant, was that his ongoing lower back problems were attributable to the back strain injury consisting of the prolapsed disc which he suffered in April 1997 and which was the covered injury. 
[29]
Judge Beattie accepted the evidence of Dr Borowczyk as to what were indeed the mechanics of the injury as it was suffered, as set out earlier in this judgment. CT scans and orthopaedic assessment makes it quite clear that the appellant did suffer a prolapsed disc at L4/L5. 
[30]
It is equally the case that at the time he suffered this injury his lumbar spine was in a state of some degeneration and it has been most helpful to be provided with a comparison carried out by the radiologists who conducted two scans at the request of Mr Inglis, the first in May 1997 and the second in June 2000. In an addendum to their report of the 2000 scan the comparison with the 1997 scan was stated as follows: 
“The previous CT scan of the lumbar spine from May 1997 is now available. L3-4: 
Disc material was present in the right intervertebral foramen on the earlier scan, and has not changed significantly. No new disc related abnormality seen. There has been progression of marginal osteophyte formation and hypertrophic changes in the facet joins which have caused a greater degree of central canal and foraminal narrowing in the interim. 
L4-5: 
The degree of stenosis has also increased at this level due to advancing spondylitic changes. Disc material in the left intervertebral foramen is more conspicuous than on the earlier scan, but this may be due to more severe foraminal narrowing rather than a focal disc protrusion. A focal left para-central disc protrusion on the earlier scan is now less evident. 
L5-S]: ”
[31]
There has been less marked progression of spondylitic changes than at the two levels above. No new disc abnormality seen. 
[32]
That radiology report identifies that the prolapsed disc at L4/5 was less evident in June 2000 than it had been in May 1997, shortly after the injuring event. 
[33]
His Honour said that the radiology reports had been commented on by each of the specialists whose reports have been presented and he found that it is quite clear that the appellant had significant pre-existing degeneration in his lumbar spine, and that this had reached the stage by June 2000 that it was causing him significant problems. This is stated as being so by Mr Inglis in his report of 4 July 2000. Mr Inglis described his decision as being that of gross degenerate changes at L3/4 and L4/5 with stenosis, that is a narrowing of discs. 
[34]
The X-rays of the lumbar spine which were obtained by Dr Xiong identify that the decompression surgery carried out by Mr Inglis was still in place and that a proper fusion had occurred. Mr Finnis also commented on that when he examined an MRI scan and noted that it showed a good decompression with fusion and no further operative management was considered necessary. 
[35]
His Honour said that Mr Sara relied on the report of Mr Finnis to tip the balance in favour of the appellant, contending that his report supported the view previously made by Dr Borowczyk, that the appellant's problems were all attributable to and secondary to his injury. 
[36]
His Honour said: 
“I have carefully considered Mr Finnis' report and find that it does not support the appellant's contention. Indeed, Mr Finnis also identifies that the underlying structural basis of the appellant's problem is largely degenerative and spondylotic. He identified the very narrow disc spaces and facet joint hypertrophy which was contributing to spinal stenosis. 
Mr Finnis noted the fusion at the two levels and observes that it may well have influenced the progression of degenerative problems at L2/3 level due to the adjacent level effects of increased load. I took Mr Finnis to be saying that the degeneration had progressed partly as a consequence of the surgery necessitated by the injury of 1997. 
It is to be remembered that Mr Finnis is making his report in support of a claim for surgery at L2/3 where he considers the discs at that level would benefit from decompression and stabilisation. ”
[37]
Judge Beattie said that there could be no basis for contending that any disc disruption at L2/3 is accident related. In any event, Mr Finnis notes that the state of L2/3 as he found it in 2007 was quite different from that which was identified in the earlier scans when the changes, now apparent, were not apparent on that MRI scan done in July 2002. 
[38]
Judge Beattie said that Dr Xiong was quite certain that the appellant's back problems were being caused substantially by degenerative changes and the degenerative foraminal stenosis rather than injury related factors, and he would put the degenerative changes as a contributor of more than 85% of the appellant's current impairment and that very little contribution could be seen from injury related trauma. 
[39]
The Judge said that Dr Borowczyk purported to state that all the appellant's back problems, including the degenerative changes, were secondary to his injury. He said that unfortunately, Dr Borowczyk does not give any reasons how he can come to this conclusion in the light of the severe degenerative state of the appellant's lumbar spine prior to the injury in April 1997. 
[40]
The Judge said that in the present case he found that such an opinion would need to be backed up by sound and valid reasoning for it to hold sway in the light of the overwhelming evidence of degeneration from other causes. 
[41]
Dr Borowczyk had Dr Xiong's reports for reference but he chose not to make comment on why he considers that Dr Xiong's assessment is wrong. The only reasoning which Dr Borowczyk gives is a claim, documented in scientific literature, that degenerative changes per se are not the cause of ongoing chronic low back pain. 
[42]
In conclusion the Judge said: 
“Having considered all the evidence that has been presented, I have come to the clear view that the whole or substantial cause of the appellant's ongoing back complaints and condition are attributable to the advancing of the degenerative processes which have brought about advanced spinal stenosis in the L3,4, and 5 area. If Dr Xiong's apportionment is to be accepted, and I find that there is no reason for it not to be so, then that apportionment would come within the requirements of the exclusionary provision of cover not being able to be had for a condition which is wholly or substantially caused by the ageing process. 
The appellant was granted cover in 1997 during the currency of the. Accident Rehabilitation and Compensation Insurance Act 1992 and as such the appellant would be entitled to the definition of personal injury as it was contained in that Act and where in Section 10(2)(a) it is stated that personal injury caused wholly or substantially by the ageing process is not covered 
In those circumstances, the appellant is not entitled to cover for the lower back condition which he currently presents and which he presented at the time the respondent made its decision in May 2002 and I find that there was proper and sufficient evidence for the respondent to be not satisfied that the appellant was entitled to continue to receive entitlements for that covered injury. This appeal is therefore dismissed ”
The Grounds for the Appellant 
[43]
The appellant puts forward four arguable errors of law: 
(a)
Failure to apply the statutory test for exclusion. The appellant argues that the respondent must show that it had a sound basis to terminate the entitlements. In this case the respondent had to show that the ongoing condition was caused wholly or substantially by the ageing process. In this case the issue was what was the cause of the degeneration. It is argued that Dr Xiong did only refer to the extent to which the “degeneration” was responsible for the appellant's degeneration. The submission is that only that issue was addressed by Dr Borowzcyk and Mr Finnis. 
(b)
Physical pain. The submission is that the physical pain was caused by the accident. 
(c)
Dr Borowczyk's evidence was dismissed without any proper basis. The doctor explained the reasons for his conclusions in his report dated 2 September 2003. 
(d)
The Judge misinterpreted the Finnis report and this caused him to reach an erroneous result on the issue of causation. 
Conclusion 
[44]
In my view this was a difficult case. There was strong, evidence of degeneration and there was also the evidence of the accident. The Judge, in my view, looked closely at the opposing medical evidence and reached a firm conclusion against the appellant. He, also, considered and applied the correct principles of law. Stripped bare the arguments of the appellant are to the effect that the Judge got it wrong by reaching the wrong conclusions as to the medical evidence. 
[45]
I accept that there are arguments either way on interpretation of the medical evidence, however, I find that the Judge's conclusions are a matter of fact and not of law. On this basis I find that there are no errors of law in this appeal that could give rise to an appeal to the High Court. 
[46]
For the reasons that I have given the appeal is dismissed and there is no order as to costs. 

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