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Accident Compensation Cases

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

Judgment Text

Judge J. Cadenhead
This an appeal for leave to appeal against the decision dated 6 April 2009 of His Honour Judge Beattie to the High Court. The issue in this appeal arises from the respondent's decision of 15 January 2008, whereby it declined to fund surgery sought by the appellant and described as being surgery for left C6/7 anterior cervical discectomy and fusion with internal fixation. 
The grounds stated for such declinature were that the surgery was not for the purposes of treatment of a covered injury. 
His Honour said that it was important to note the background facts leading up to the request by Mr Nicholas Finnis, neurosurgeon, for the funding of the surgery, which was declined. Those facts are not in dispute and may be stated as follows: 
“On 23 December 2002 the appellant developed pain in her right shoulder and arm whilst lifting heavy ATM containers. 
A claim for cover for an injury described as right arm/shoulder sprain was made and accepted. 
The pain in her right shoulder and arm did not subside and the appellant was eventually referred to Mr Nicholas Finnis, Neurosurgeon, for assessment. His initial assessment took place on 26 July 2005. 
Following an Mkt scan Mr Finnis diagnosed a prolapsed disc at C6/7 compromising the right C7 nerve root. 
Mr Finnis sought approval from the respondent to carry out decompression of right C7 nerve root. 
On 29 September 2005, Mr Finnis carried out a posterior discectomy at the right C6/7 level. 
That surgery was considered successful with no further pain being experienced in her right arm/shoulder. 
Shortly after surgery the appellant began to experience pain and numbness in her left arm. Mr Finnis diagnosed ulnar neuropathy. 
A separate claim for cover for a treatment injury was lodged on the basis of Mr Finnis' advice that the appellant's left ulnar nerve may have been compromised during surgery. 
Cover was accepted for that treatment injury and the respondent approved remedial surgery and Mr Finnis carried out such surgery on 23 March 2006, that surgery being described as left cubital tunnel decompression. 
This surgery resolved the pain the appellant was experiencing in the ulnar side of her left hand, but she then developed pain in the radial aspect of the left hand, up the forearm through her left shoulder and left side of neck. 
The cause of this latest problem was not immediately apparent and Mr Finnis referred her to Mr MacVicar, who carried out facet blocks on the left at C5/6 and C6/7, the result of which was negative. 
Further investigation by Mr Finnis following another MRI scan identified neural foramina on the left at both C5/6 and C6/7. 
On 20 November 2007, Mr Finnis requested the respondent approve funding for surgery to relieve nerve impingement on the left of C7 nerve root. ”
Mr Finnis' accompanying explanation stated: 
“Further imaging of her neck has shown some mild foraminal narrowing on the left at C6/7, and it has been considered possible that some ongoing impingement on the left C7 nerve root may be contributing to her problem. ”
The request for approval was referred to the respondent's branch medical advisor, Dr Scragg, who considered the matter and advised that in his opinion the request for surgery was not for treatment of any of the covered injuries, but was due to a degenerative condition giving rise to the osteophytes compressing on the foramina. Consequent upon the advice of Dr Scragg, the respondent issued its decision of 15 January 2008 declining to fund the surgery. 
The appellant sought a review of that decision and a review hearing took place on 10 April 2008 at which the appellant was represented by Mrs Aubrey. 
In a decision dated 2 May 2008, the reviewer, Ms E Askey, ruled that the appellant did not have cover for a left C7 nerve root problem and that the comments of Mr Finnis did not provide any causal link from her covered injuries to the condition for which the surgery was sought. In that regard the reviewer made particular reference to the fact that no causal link could be established between the C7 nerve root condition and the ulnar nerve compression surgery carried out in September 2005. The respondent's decision to decline funding for such surgery was therefore confirmed. 
In the appeal a further report was introduced from Mr Finnis, that report being sought by the respondent consequent upon the appellant lodging a claim for cover for a further treatment injury, namely left C7 nerve root impingement, as having been caused by the ulnar nerve surgery carried out in March 2006. 
In her submissions in front of the Judge, Mrs Aubrey advised that she was relying on the most recent report from Mr Finnis, being a report dated 7 October 2008, provided by Mr Finnis in support of a claim for treatment injury. Mrs Aubrey submitted that the respondent had failed to establish that the cause of the problem for which surgery was sought was degenerative in nature and she referred to Mr Finnis' answer to the first question posed by the respondent's Treatment Injury Investigation Team, and which she said was conclusive of the matter. 
Mr Evans for the respondent, reasserted the respondent's position as being that there was no evidence of any causal link between the left C6/7 nerve root problem and either of the appellant's covered injuries. Counsel submitted that the evidence establishes that the decompression is aimed at relieving the compression of the nerve caused by the narrowing of the foramena which is a sign of a degenerative change. Surgery for degenerative changes is not, and cannot be, a covered injury condition. 
The Decision of Judge Beattie 
His Honour said it was important to identify that the issue in this appeal concerns the entitlement or otherwise of the appellant to have a certain specified surgical procedure funded as being a treatment entitlement under the Act. The issue in this appeal was not whether the appellant had suffered any further treatment injury within the meaning of the Act. 
It was axiomatic that the determination of the issue in this appeal required consideration as to whether the surgery sought was indeed surgical treatment for a covered personal injury. Put another way, it required to be established, on the balance of probabilities, that there was a causal nexus between the medical condition for which surgery was sought and the medical condition which was the personal injury for which cover has been granted. 
In the case of this appellant she had cover for two separate personal injuries, one arising out of an accident at her place of work which involved a right side shoulder and neck strain whilst lifting a heavy object, and the second, a treatment injury, namely left ulnar nerve compromise, caused during the surgery for treatment of her covered personal injury. 
It is important to note that the injury for which cover was initially granted in December 2002, was for right sided shoulder and neck strain. The surgery carried out by Mr Finnis in treatment of that injury was solely to the right side, and the discectomy surgery did indeed remedy the injury that had been suffered, namely the C7 disc protrusion. 
As earlier noted in the background facts, that surgical procedure nevertheless did have an impact on the appellant's left side ulnar nerve and this was accepted by the respondent as being an unforeseen consequence of that surgery, and cover was given for the ulnar neuropathy which had been brought about and which was itself resolved by further surgery described as left cubital tunnel decompression. 
Mr Finnis, in his report to the respondent of 7 October 2008, put the matter thus in relation to the need for that second surgical procedure: 
I saw Ms Gallagher again for review at my neurosurgical rooms on 24/11/05. She returned following the MRI scan of her neck which did not show any further disc prolapse at the C6/7 level. There was, however, a broad based disc bulge across the C6/7 level which was causing some foraminal narrowing on the left. The C7/T1 neural foramen was normal and therefore there was no impingement on the CS nerve root. Her symptoms were still most likely those of an ulnar neuropathy rather than a C7 radiculopathy and therefore nerve condition studies were arranged. She had these studies on the ulnar nerve across the wrist on 14/12/05 and this showed some mild changes consistent with compression of the nerve at this site. She therefore went forward for surgery for a left cubital tunnel decompression on 231103/06. ”
The next stage of the appellant's medical complications arose at some time after that March 2006 surgery. That ongoing situation was noted by Mr Finnis as follows: 
“I reviewed her for the first time following the ulnar nerve surgery on 20/04/06, She felt she did have some improvement in the sensory symptoms at this time but she did have some pain around her wound, as would be expected at this early stage. On review on 25/05/06 she complained more now of pain in the radial aspect of this hand extending into the region of the upper arm and shoulder. These symptoms were not obviously related to an ulnar neuropathy being in a different distribution. She was beginning to lose function in her hand. My plan was to refer her to the Burwood Pain Management Service for an assessment and input with pain management techniques and also to arrange for another MR1 scan. ”
The Judge said: 
It is clear from that statement that the symptoms which the appellant was displaying were not as a consequence of or caused by, the ulnar neuropathy which Mr Finnis had treated. 
As matters progressed after tests had been done, it was diagnosed both by Mr Finnis and Professor Shipton, a Pain Management Specialist, that the diagnosis of the appellant's pain on her left side was consistent with C7 radiculopathy on the left side. 
The evidence is that an MRI scan was taken in November 2007 and Mr Finnis thereupon advised as follows: 
‘The pain was initiated with neck movement and activity aggravated her symptoms. She had an MRI scan of the neck the same day as her clinic visit. This still showed mild to moderate foraminal narrowing on the left side. A disc osteophyte complex extended into this area causing foraminal narrowing. There was also some foraminal narrowing at the C5/6 on the left but this was quite minor. The decompression on the right at C6/7 still looked satisfactory. There was still signal change seen at the C5 level in the spinal cord. I felt that some of the symptoms could well be due to a C7 radicular problem given her description today. I felt this could be related to the mild to moderate C6/7 foraminal narrowing at the C6/7 level. I felt that it was likely that the signal change seen within the spinal cord could be accounting for some of the symptoms in her arm as well, but some of the descriptive characteristics of the pain would be more in keeping with a radicular problem and movement of the neck certainly aggravated the symptoms. ’”
In summarising the situation, Mr Finnis stated: 
‘On further review some C7 radicular symptoms became more dominant and given the ongoing foraminal stenosis at the C6/7 levels, although mild to moderate, I felt some component of her symptoms may be improved by decompression and fusion here. ’”
It must be noted that the passages quoted above from Mr Finnis ‘report of 7 October 2008, were to the respondent's Treatment Injury Centre, and it was a report requested by the respondent's Clinical Advisor and where certain questions were asked of Mr Finnis, and in respect of which Mrs Aubrey relies on the answer to the first question posed to Mr Finnis, that question being: “Whether a personal injury has occurred?” Mr Finnis’ reply was as follows: 
‘It is my opinion that a component of her problem is a C7 radicular pain in her left arm and this occurred subsequent to surgery. She has foraminal stenosis which has not changed since prior to surgery, however some effects of positioning may have been sufficient to initiate the symptoms. In this regard some injury may have been considered to have occurred. ’”
Mr Finnis' response, I find, is simply identifying that the particular foraminal stenosis which he identified, and which was the cause of her ongoing symptoms, and for which the surgery was intended to remedy, was to be considered an injury but Mr Finnis was certainly not suggesting by his answer that the particular foraminal stenosis which was identified had been caused by either the incident of the initial shoulder and neck strain injury of 2002, the surgery to alleviate it, or the subsequent surgery pertaining to the ulnar nerve. 
The surgery, which is now the subject of this appeal, was decompression surgery sought to treat a degenerative condition, clearly identified as foraminal stenosis on the left side at C6/7, 
From the foregoing, I find that the evidence does establish that the surgery is intended at relieving the compression on the nerve caused by a narrowing of the foramina, such narrowing being a degenerative condition and not one caused by injury from accident or from medical treatment. I find that there is no causative nexus which could bring that diagnosed medical condition for which surgery is sought within any framework of the appellant's two covered injuries. 
Accordingly, it must follow that as the medical condition is not one which is associated with a covered personal injury, the right for funding of remedial surgery cannot exist and the respondent was correct when it made the decision to decline the request for the funding of that surgery. ”
I found difficulty in locating any errors of law sought by the appellant. The appellant seemed to think that Judge Beattie's decision merged the two accidents that she had cover for. I reached a decision that Judge Beattie asked and answered the causation question correctly. I cannot find any legal issues that should be stated for the High Court. 
For the reasons that I have given I dismiss the application for leave to appeal. There is no order as to costs. 

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