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Accident Compensation Cases

Rocha v Accident Compensation Corporation (DC, 28/03/13)

Judgment Text

Roderick Joyce QC Judge
Note re hearing 
Mr Rocha did not appear at the hearing on Thursday 24 January 2013. However, and by then, both he and the Corporation had filed submissions in writing. 
In that state of affairs I issued a Minute that day which materially said this: 
“ … the Court's intention is to proceed and deal with the appeal in light both of those submissions and the bundle of documents that Mr Evans also handed up today. And it will proceed accordingly unless, no later than Friday 8 February 2012 [sic], Mr Rocha requests otherwise. In the meantime Mr Evans is to ensure that a copy of the bundle of documents is forthwith sent to Mr Rocha at the address he confirmed to Mr Evans' personal assistant earlier in the week. ”
It in fact turned out that a copy of the bundle of documents had already been couriered to Mr Rocha, that on 21 January 2013. 
Friday 8 February 2013 came and went without, so far as the Court has been informed, any request from Mr Rocha that his appeal be dealt with otherwise than was proposed in my Minute. The Court's judgment accordingly follows. 
Reason for appeal 
The question in contest in this appeal is whether or not the Corporation's decision of 5 July 2011 declining to pay Mr Rocha weekly compensation was correct. 
Mr Rocha had sought a review of that determination which was heard on 8 August 2011 but in a decision dated 22 August 2011 the reviewer had upheld the Corporation's determination and thus dismissed the review application. 
It is from that dismissal that Mr Rocha now appeals. 
I set out the following chronology of events, one largely taken from that provided by Mr Evans, but with it including due reference to the contents of the bundle of documents: 
On 19 April 2011 Mr Rocha was preparing to take a parachute jump and adjusting his equipment when he hurt his back. At that point in time he was working as a skydiver instructor in Wanaka. 
On 21 May 2011 his general medical practitioner submitted a claim on his behalf indicating that Mr Rocha had suffered a thoracic sprain for which analgesics had been prescribed, physiotherapy arranged and an appointment made to see Mr Medlicott, orthopaedic surgeon, on 2 June 2011. Successive (24 and 26 May 2011) certificates were to like effect. 
On 2 June 2011 Mr Medlicott reported to the GP. He wrote in terms that: 
Mr Rocha had had previous surgery to his cervical spine in Brazil about 10 years before. 
He was now presenting with significant pain in the lower neck radiating into the left side of the upper scapular which would fit with a cervical radiation. 
In terms of the radiology, at C5/C6 level there appeared to have been an old avulsion of the spinous process as there was a piece of bone in the soft tissue posteriorly; and 
Mr Medlicott wondered aloud, as it were, whether this had anything to do with things; in which respect 
He thought Mr Rocha should be scanned again. 
On 6 June 2011 the GP sent Mr Rocha's case notes to the Corporation and these included, on 21 April 2011, the note: 
“Presents with L intrathoracic pain after had been horsing around with friend prior to doing another jump. This is same as previous in time with same region of pain but feels fingers different/numbness one hour later which intermittent lasting minutes. ”
Mr Rocha's spine was the subject of an MRI on 8 June 2011 the report of which included reference to: 
A congenital fusion at C6/7. 
A left sided laminectomy of T1 consistent with the known past surgery. 
The spinal canal appeared to be narrowed “some of which is congenital and some of which is contributed to by disc and posterior osteophyte”
At C4/5 there was severe bilateral forminal stenosis. 
At C5/6 there was a normal right foramen but severe left foraminal narrowing due to disc and osteophyte; the end comment being that: 
“The narrowest level in the canal is at C4/5 where there is slight indentation upon the cord. There is severe foraminal stenosis at this level. There was also severe left foraminal stenosis at C5/6. ”
Upon receipt of this report Mr Medlicott referred Mr Rocha to Mr Nicholas Finnis. He told him that Mr Rocha had a rather complex neck problem the main element of which appeared to be referred pain either from the C4/5 or the C5/6 disc causing upper scapular problems. 
Mr Finis, who is a neurosurgeon, reported on 21 June 2011, being the day he saw Mr Rocha. He noted that at the time of writing he did not have the MRI films but did have a report on them. His diagnosis was expressed in these terms: 
“Mauricio has localised pain along the medial aspects of the scapular. He doesn't appear to have any symptoms radiating into his arm. In particular with the foraminal narrowing at the C4/5 level we may expect a C5 radicular problem into the region of the upper arm laterally and with the C5/6 foraminal stenosis a C6 radicular problem could radiate down into the arm. These symptoms are absent. He also does not have any neurological features to perhaps support problems of radiculopathy. The pain into the region of the scapular is more likely referred from the spondylotic changes perhaps seen on the MRI scan. The description would also imply quite a degenerative C5/6 disc and there may be some pain generated from this, again referred into the scapular region. ”
(Emphasis added) 
His recommendation was that facet injections for these would be helpful diagnostically as well as therapeutically. He raised, but did not then press, the possibility that if there were significant degenerative changes around the C5/6 disc then there might be some benefit in removing that. Here he commented that, given the C6/7 fusion, Mr Rocha would require a disc replacement to maintain mobility. 
Mr Finnis wrote again on 30 June 2011 having by then viewed the MRI scans. He then said: 
“From my clinical assessment I feel that referred pain from the neck could be an explanation for Mr Rocha's symptoms. I don't think he has any strong radicular features from nerve root compression. My plan in management is to exclude facet generated pain from some of the degenerative facets and I suggested a facet injection. From the MRI scan this would not be an unreasonable initial approach, The reason for this is that if facet pain can be excluded then it is possible that he may have C5/6 disc generated pain given the structural changes seen. I would then feel it not unreasonable to remove the disc and replace this with an arthroplasty, as discussed in my previous letter. ”
At around this point the Corporation sought the advice of its branch medical adviser, Dr McPherson, who observed: 
“(Mr Finnis) thought the pain likely to result from spondylotic changes in the cervical spine which … would not attract ACC cover. Any facet joint injections, for diagnosis or for treatment could not then be ACC's responsibility (the C5/6 fusion predates his residence in New Zealand and was not funded by ACC). 
… it seems that his current incapacity is not injury related. ”
On the basis of that comment and on 5 July 2011 the Corporation issued its determination that Mr Rocha was not entitled to weekly compensation as his current incapacity was unrelated to his covered personal injury, the letter continuing: 
“The medical information on file states that your symptoms are more likely due to pre-existing degenerative spondylotic changes which are not covered by ACC. As a result, ACC is unable to pay you weekly compensation and considers that your covered personal injury has now been resolved. …  ”
It appears that shortly after that the Corporation sought clarification from Mr Finnis and his response was this: 
The diagnosis of Mr Rocha's claim is not entirely clear and he is still undergoing diagnostic evaluation. His symptoms may be related to the initial interpretation of his problem, this being the left-sided thoracic sprain. Other possibilities are being evaluated such as cervical facet pain, but clearly this would not solely related to the accident date 19/04/11 as there may be some influence of pre-existing changes within the facets. 
The origin of the ongoing symptoms is yet to be determined. In my opinion there is a possibility that this is facet generated pain referred to the scapular region and that is why recommendations have been made to take evaluation further in this regard1
| X |Footnote: 1
These observations must now be read in the light of what Mr Finnis said when he wrote to Mr Rocha on 19 July 2011 — see [8] below. 
At this stage my recommended treatment is not to cover thoracic sprain but that of facet generated pain. 
Case for Mr Rocha 
In his written submissions Mr Rocha conveyed the following: 
Following his surgery in Brazil in 2001 his back/neck had given him no problems until sometime during 2008, 
He had come to New Zealand to work as a professional skydiver instructor in 2005 after which he had increased his numbers of jumps from the hundreds in the first 3 years to thousands since then. 
That change had occurred when he had moved to Taupo to work for one of the biggest skydiver operators in New Zealand. 
In late 2008 he had an incident “in many” where his tandem parachute deployment was harder than normal and gave him a huge “jerk” causing thoracic pains in which respect — 
He referred to a letter of 19 July 2011 that Mr Finnis had written to him in which he had said that: 
“It is accepted that you injured your neck several years ago, for which you had surgery at the C7/T1 level posteriorly. This is seen on the MRI scan. At C6/7 level you have a congenital fusion. Any relationship of your current problem to the injury at the C7/T1 area is speculative and subject to interpretation. It is possible that you did have increased loading through that level at the time of the injury which could have caused accelerated degenerative changes, as described. This, however, is speculative and is adjacent to a level which has congenitally fused, which may be equally significant. ”
(Emphasis added) 
That was the passage that Mr Rocha rehearsed but I now note that Mr Finnis in fact then continued: 
With the imaging information available, on the balance of probabilities it is more likely that pre-existing changes prior to the November 2010 event are more significant for you. Although you are entitled to appeal this decision, it would seem unlikely with the available evidence I have that this will be successfully overturned2
| X |Footnote: 2
Mr Finnis is no stranger to ACC claims and can be taken to be aware of s 26(2) of the Act. 
. ”
(Emphasis added) 
Anyway, of equal, if not greater, significance, Mr Finnis had preceded the observations particularly emphasised by Mr Rocha with this: 
“The dominant problem … on imaging criteria alone is not that of an acute injury but of changes which have been present prior to that event. ”
Mr Rocha then returned to his narrative to say this: 
“During the time I work for ‘Skydive Taupo’ I don't use to jump with camera helmets in my head as it wasn't part of my job description so I never thought or ‘connect’ my pains with my ‘old’ injury or surgery. 
In late 2009 when I move to Wanaka I came back to work as an outside cameraman capturing the customer skydive experience, so then I restart to use a camera helmet with more of less 3 kg of equipment (still camera and video camera) over my head. The parachute equipment we use now days are the most safe and have the latest production technology for soft openings and smooth and safe landings, however even when used as required it also can have problems and or malfunctions. As the new company (Skydive Wanaka) I was working required (almost demand) their contractors to have a faster turnaround in between loads they contract a parachute packer who start to pack my parachute for me, it is when I start to have problems with my inconsistent parachute openings that cause me my very first back/neck problem/complain in November 2010. In between 1 or other bad openings because of bad packing jobs and 2 or 3 parachute malfunctions in the process I had what was for me the worst parachute opening causing me the pain and discomfort late in April 2011. ”
Mr Rocha then set out his personal opinion on his case which evidences the misapprehension that, because he had cover for the immediately occurring injury that he reported to the GP, this must mean that subsequently persisting problems necessarily track back to that injury. 
I particularly add that (a) the terms in which Mr Rocha completes the submission make clear to me that his approach to his case has been entirely sincere; and (b) that his whole presentation was marked by a courteous approach for which I commend him. 
Case for Corporation 
Responding for the Corporation, Mr Evans began by making due reference to s 26(2) of the Act which is to the effect that an injury that is “wholly or substantially” caused by a gradual process or by disease or by the ageing process is excluded from cover and thus entitlements. 
He then noted that s 117(1) is to the effect that the Corporation may suspend or cancel entitlements if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive them. 
He acknowledged the Ellwood principle, the effect of which might shortly be stated in terms that because decisions to cease to pay weekly compensation are serious decisions for the claimant, none should be made except after due enquiry by the Corporation into the case, leading to clear evidence that that course is fully justified. 
Mr Evans then turned to the letter that Mr Finnis had written to Mr Rocha. He first noted that Mr Finnis had incorrectly referred to an injury in November 2010 whereas the date in question here was 19 April 2011. 
He then submitted that the pre-existing changes in Mr Rocha's cervical spine that Mr Finnis had identified could not, on the evidence, have occurred as a result of what happened in April 2011. 
In fact (in terms of Mr Finnis's advice) there was a range of degenerative changes that would have been apparent before ever the April 2011 event occurred. 
Mr Evans then pointed out that, in writing on 19 July 2011, Mr Finnis had confirmed the fact of the congenital fusion at the C6/7 level — so clearly that was not injury related. And he had acknowledged that the changes that were evident on the MRI were not of an acute kind. 
Counsel then draw attention to Mr Finnis's already noted observation that: 
“The dominant problem, therefore, on imaging criteria alone is not that of an acute injury but of changes which have been present. ”
This was an observation that went to the nub of, and in my consideration fully supported, the Corporation's decision for, as I had read Mr Finnis's advices, he counted the injury contribution to the sum of Mr Rocha's subsequent ailments as insignificant. 
In the terms in which the evidence stood at the time the Corporation made its 5 July 2011 determination, the position was that Mr Rocha had gone to his GP who had referred him on to an orthopaedic surgeon who in turn had referred him on to an even more specialised medical practitioner, namely Mr Finnis, a neurological surgeon. 
As of 30 June 2011 Mr Finnis had reported (including to ACC's Christchurch contact centre) in terms confirming a congenital fusion and otherwise (and variously) acknowledging degenerative features in the cervical spine. The tenor of this report was to point in the direction of surgery (disc removal and replacement) in an area of degeneration immediately adjacent to the place of the congenital fusion. 
Prior to that — when reporting on 21 June 2011 — Mr Finnis's diagnosis had ended with this observation: 
“The pain into the region of the scapular is more likely referred from the spondylotic changes perhaps seen on the MRI scan. The description would also imply quite a degenerative C5/6 disc (that he later proposed should be removed and replaced) and there may be some pain generated from this, again referred into the scapular region. ”
The branch medical officer's review notes of 1 July 2011 — leading obviously to the determination now put in question by Mr Rocha - noted in reference to Mr Finnis's 30 June 2011 report this: 
“There were no radicular symptoms, or features to support a radiculopathy. He thought the pain likely to result from spondylotic changes in his cervical spine, which, as you suggest, would not attract ACC cover. … It seems that his current incapacity is not injury related. ”
One might say here (the Corporation being at that time aware that Mr Finnis had not yet seen the MRI scans at first hand) that it could well have waited for the neurological surgeon's comment on those before it acted as it did on 5 July 2011. 
Since then of course the further advice of Mr Finnis, patently the expert here, has lent no support to Mr Rocha's case but rather reinforced that of the Corporation, So in retrospect the Corporation certainly got it right, an observation of no comfort to Mr Rocha. 
Returning to the crucial issue of the sufficiency of the Corporation's enquiries and resultant evidence as justification for the decision that it made on 5 July 2011, I find that in this case it had enough to be satisfied that it was right to make the decision it did. 
However, if I may say so, it would have been wiser to have awaited Mr Finnis's further advices before it did make that decision - a lesson I hope it would take on board for the future; for this is not the first instance I have struck off a rush to judgment in a case where there was no need for that. 
Nevertheless, and as I have so recently indicated, I do consider that there was sufficient by way of persuasive medical evidence available at the time of the determination to justify it, and that means that Mr Rocha's appeal cannot succeed. 
The appeal is dismissed. 

These observations must now be read in the light of what Mr Finnis said when he wrote to Mr Rocha on 19 July 2011 — see [8] below. 
Mr Finnis is no stranger to ACC claims and can be taken to be aware of s 26(2) of the Act. 

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