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Accident Compensation Cases

Dehar v Accident Compensation Corporation (DC, 16/04/13)

Judgment Text

M J Beattie Judge
The issue in this appeal arises from the respondent's decision of 31 December 2008, whereby it declined to grant cover to the appellant for work-related gradual process conditions of osteoarthritis of the spine and right hip. The reason for the declinature was that the respondent considered that there was no evidence establishing that the appellant's employment activities had been causative of those medical conditions. 
It is the case that the appellant did not lodge his claim for cover until November 2008, and by which date he had been unemployed for well over three years, and it is the case that the appellant is asserting that it was the nature of his employment for a number of years down to January 2005 which brought about the work-related gradual process conditions for which he now sought cover. 
It is the case that the appellant did suffer a physical injury in January 2005, being an injury suffered to his neck and right shoulder arising from an accident event which occurred whilst he was engaged in physical activity at his home. The covered injury was not an injury which he had suffered in the course of his work. 
It was only after the respondent had issued a decision suspending entitlements to the appellant in respect of his covered injury, on the basis that he was no longer experiencing any problems associated with that covered injury, that the respondent then lodged the claim for cover for the gradual process injury. 
The background facts relevant to the issue in this appeal may be noted as follows: 
As of the date that the appellant lodged his claim for cover he was 50 years of age, and for most of his working life down to the cessation of same in January 2005, he had been employed largely in outdoor physical activity type work, and certainly the work activities that he was engaged in from 1987 onwards are set out in an affidavit and which identified that the various employments he had were all significantly employments involving labour activities. 
It was subsequently identified that the appellant had suffered an injury to his C5/6 disc in the accident event of January 2005, and he underwent anterior fusion surgery for his C5/6 disc in January 2006, that surgery being approved of and funded by the respondent as being treatment of a covered injury condition. 
It is of relevance to this present case that the radiological imaging of the appellant's cervical spine which was carried out two days after the accident event, identified that the appellant had marked degenerative changes in his cervical spine. 
It was accepted by the medical reports at the time of the appellant's covered injury and subsequent, that the degenerative changes which were identified all pre-dated the covered personal injury event of January 2005. 
As earlier noted, it was not until after the respondent had suspended entitlements to the appellant in respect of his covered injury, that the appellant lodged a claim for cover for work-related gradual process injury conditions. 
On receipt of that application the respondent sought the opinion of Dr Blair Christian, Occupational Medicine Specialist, and he examined the appellant on 18 December 2008 and provided a report to the respondent dated 24 December 2008, and it was his advice that the appellant's medical conditions, for which cover was sought, had not been caused by any work-related physical tasks. Further comment from Dr Christian's report will be stated later. 
It was as a consequence of Dr Christian's report that the respondent issued its decision on 31 December 2008 declining to grant cover to the appellant for the gradual process claim for osteoarthritis of the appellant's spine. 
The appellant sought a review of that decision and for the purposes of that review, Counsel for the Appellant sought the medical opinion of Dr David Black, Occupational and Environmental Medicine Specialist, and he in fact provided three reports for the purposes of that review. 
The respondent, for its part, obtained a further comment from Dr Christian, and also a report from its Christchurch Branch Medical Adviser, Dr A Hilliard. 
In a decision dated 21 December 2011, the Reviewer ruled that the medical evidence established, on balance, that the appellant had not suffered work-related gradual onset conditions relating to his cervical spine or his right hip, and the respondent's primary decision was therefore confirmed. 
For the purposes of the appeal to this Court, no further medical evidence has been introduced from that which was presented at the review hearing in December 2011. 
The relevant medical reports are as follows: 
Report from Dr B Christian dated 24 December 2008. 
Dr Christian had a significant number of earlier medical reports for reference, those reports in the main relating to the appellant's medical condition subsequent to his January 2005 injury. He commented, inter alia, as follows: 
“ …
I understand that the main purpose of today's medical case review is for assessment of whether William's cervical spine arthritis and right hip arthritis can be identified as being work-related gradual process conditions. 
There is no doubt about the diagnoses, with X-rays and MRI scans and CT scans of the cervical spine all showing very significant degenerative changes in that spine, from the upper to mid levels. The X-ray evidence for degeneration dates back to only two days following that fall onto the right side in early 2005, and thus very clearly predate the accident itself. 
Cervical spine degenerative change is an exceedingly common condition in the general ageing population, with some studies showing that, on a radiological basis, 90% of men over the age of 50 and 90% of women over the age of 60 have cervical spine degenerative changes seen. 
On one hand William's long work history clearly has involved repetitive forceful crouching and squatting and kneeling, often with heavy lifting involved. 
On the other hand what is unusual with William's presentation is that his right hip has become markedly arthritic, in fact requiring total hip replacement at a relatively young age, but with the left hip X-ray being reported as normal with no signs of any significant arthritis. 
To my mind this would go against work-related physical work tasks and factors being the predominant cause for the right hip arthritis, given that both the left and the right hips have been equally exposed to work-related factors over William's working life, and it does seem reasonable to accept that if work-related factors were in William's case leading to a major increased risk of developing hip arthritis this would have occurred more or less equally in the left and right hip given the equal exposure to these presumed risk factors. Thus in my view the evidence suggests that work factors in and of themselves have not been a predominant contributing cause for the right hip arthritis. 
… ”
Report from Dr D Black, Occupational and Environmental Medicine Specialist, dated 4 August 2011. 
Dr Black also saw the appellant for the purposes of his report and he stated, inter alia, as follows: 
“ …
… the question is, why does this man have such advanced osteoarthritis in his spine. There are several possibilities one of which is premature natural degenerative disease and its related changes. The latter is an option which does need to be excluded. However on examination of the rest of the patient I do not find the normally expected signs of psoriatic arthritis in peripheral or other joints and so it seems to me that despite having quite a significant skin problem there is no evidence that this patient has the arthritis aspect of psoriatic disease and neither would he necessarily do so. That option therefore is unlikely. 
From his history, Bill has had a lifetime of very heavy work in the building industry. This is particularly so because he was an unskilled or semi-skilled labourer therefore would have more or less continuously done the heavy jobs rather than the mix of light and heavy duties more commonly encountered by a tradesman. It is therefore much more than likely that Bill's work contributed significantly to osteoarthritis throughout his spine. …  
… ”
Further report from Dr Black dated 5 October 2011. 
In this report he expanded on the comments made in his earlier report. After noting a comment that it was now identified that the appellant's covered injury was spent and that osteoarthritis was now the primary and substantial cause of his current and ongoing incapacity. He then stated as follows: 
“ … I do not disagree with that except to say that right sided arthritis in a right handed man under 60 who has undertaken heavy work for 40 years is strongly indicative of damage by repetitive activity and heavy loading of the right side of the body and much less suggestive of any systemic of endogenous arthropathy. Osteoarthritis can occur as a systemic disease of unknown (but probably congenital) origin but when it does so it is widespread, even and symmetrical. When osteoarthritis is lateralised or confined to particular joints it is indicative of a physical or mechanical cause. In this case, the osteoarthritis is particularly seen in the knee and hip joints, both of which are heavy load-bearing joints. …  
I believe Mr Dehar has performed employment tasks which had properties and characteristics that have caused or substantially contributed to his condition of osteoarthritis of large, weight-bearing joints. He has been carrying heavy weight, has had to bear heavy loads for sustained periods as a builder, often in awkward positions and involving lifting and climbing. These properties of work are likely to cause excessive load on joints which exceeds the body's natural ability to repair. This repair appears to have been satisfactory on the less loaded left but has become critical and disabling on the heavily loaded right. 
… ”
Report from Dr A Hilliard, dated 10 November 2011. 
Dr Hilliard had considered Dr Black's reports and he commented as follows: 
“ …
Although it is agreed that unilateral joint OA can often signify injury, I disagree with Dr Black's view that the clients unilateral OA is more likely to represent an occupational or environmental cause. During the course of his work, the client will have been exposed to equal loading of both right and lower limbs (including risk factors such as climbing, lifting, kneeling, etc). Therefore if work had been causative of the client's pathology one would have expected bilateral symptoms in equal or near equal measure and which is not the case here. The unilateral nature of the clients pathology is therefore more indicative that the clients osteoarthritis is not related to work or work tasks. 
For the client's right hip osteoarthritis to be considered as having been caused by work, there must be evidence of significant loading on the affected joint when compared to the non-affected joint. Dr Black does not discuss a plausible biomechanical mechanism as to how equal loading of the hip joint over the client's work life could have potentially caused unilateral pathology. 
Also, Dr Black has not identified any specific characteristics in any of the client's work that would have placed extra loading on his right hip joint. 
Dr Black's report does not reflect the current consensus with respect to the causation of hip and cervical osteoarthritis. He provides no up to date or specific relevant references from the literature to support his views with respect to the causation of the client's incapacity. 
I also do not agree with Dr Black's views that the client's work has caused his unilateral pathology and as exposure to work tasks in this case has been identical to both lower limbs. The unilateral nature of the client's symptoms do not support a work related causation, but rather favour a different non-work related cause to the client's right hip pathology. 
… ”
Further report from Dr Black dated 21 November 2011. 
Dr Black responded to the report of Dr Hilliard. He stated, inter alia, as follows: 
“ …
Dr Hilliard notes that I do not put forward a plausible biomechanical mechanism for the unilateral hip pathology and that is because there is not enough information to reasonably do so. It is quite possible that the hip which failed had a congenital predisposition such as subluxation in infancy and was therefore susceptible but that, in the presence of heavy work loading, does not remove work-relatedness, the employer and their insurer have to take the worker as they find him and if he has what turns out to be a susceptible joint, then that is no less a work related disease. 
… Having obviously done considerable research Dr Hilliard is only prepared to say that there is no strong evidence in the medical literature that OA is caused by the type of work undertaken by ‘the client’. In my view, the evidence does not have to be strong, it only has to be there and supportive of a substantially likely relationship and I take Dr Hilliard's comment as conceding that this is so. 
… Ultimately, if on an investigation such as that which I have mentioned, work can be shown to be substantially responsible for the disease, then in my experience the required test is met. I am fully aware of the three part test which is supplied on a legal basis and no doubt ACC medical officers are required to use. I believe that Mr Dehar's case does meet this but I acknowledge that I am also advancing my opinion from a different perspective which is more aligned with that adopted in clinical medicine in providing a working diagnosis for management of the patient. ”
Mr Miller, Counsel for the Appellant, submitted that the appellant's osteoarthritic conditions were the result of a significant number of years or repetitive heavy work and he referred to the advice of Dr Black that the appellant's work activities were the cause of his osteoarthritic conditions. 
Counsel further referred to the fact that the requirement to establish the necessary factual situation was only on the balance of probabilities and further, that the work activities do not need to be established as being the sole cause provided they are a significant cause. He submitted that the appellant's spinal and right hip osteoarthritis can be considered to have been caused or contributed to by his work tasks on the balance of probabilities. 
Ms Light, Counsel for the Respondent, submitted that the opinions of Drs Hilliard and Christian are to be preferred to that of Dr Black. She referred to the unilateral nature of the appellant's symptoms and submitted that that situation did not support a work-related causation as the appellant's limbs would have been subject to the same exposure in the work tasks. The fact that there was no osteoarthritis on the left side indicates that it was not a work-related medical condition that had arisen. 
The appellant's claim for cover is a claim made pursuant to section 30 of the Act, and it should be noted that the provisions of section 30 that are applicable in this case are the provisions contained in the 2001 Act as amended by the 2008 Amendment Act, although it has to be said that those amendments are not matters that have a great deal of relevance in this particular case, other than it being the position where the onus is on the respondent to establish, if it should be relevant, that the risk of suffering the personal injury is not significantly greater for persons who perform the employment task in issue than for persons who do not perform it. Prior to that amendment the onus was on the appellant to establish that the risk of suffering the injury was significantly greater for persons performing the employment task, and it is the case that the legal situation has now been reintroduced following the further amendment to the Act in March 2010. 
The first issue which must be considered is whether any of the appellant's employment tasks caused the osteoarthritic conditions to the appellant's cervical spine, that condition being on the appellant's right side only. 
The onus is on the appellant to establish a causative nexus between work activities and the onset of the osteoarthritic conditions, and as earlier identified, the respondent's position that there is no causative nexus was provided and advised by Dr Christian and Dr Hilliard. 
As earlier noted, it was Dr Christian's report that caused the respondent to decline to grant cover, and in his report he noted, amongst other things, that cervical spine degenerative change is an exceedingly common condition in the general ageing population, and a significant percentage of men over the age of 50 can be expected to have some cervical spine degenerative change. 
The other factor which Dr Christian noted was that it was only on the right side that the appellant was experiencing the injury condition and it was his advice that it must be accepted that both left and right hip and cervical spine would have been equally exposed to work related factors and the fact that it is only on the right side that the medical condition is present, he considered was a strong reason why the work activities had not been causative of the appellant's osteoarthritic condition. 
The contrary view is provided by Dr Black who stated that because there was no condition on the left it was most likely that the appellant's asymmetrical osteoarthritis had an environmental rather than a congenital or endogenous cause. It is the case, however, that he then identifies that the appellant's employment tasks had properties and characteristics which would have caused those conditions, and he does not make any comment or give any reason why the conditions were only related to the right side and not to both sides, which was the reasoning of Dr Christian and confirmed by Dr Hilliard, and where Dr Hilliard also stated that the unilateral nature of the appellant's symptoms do not support a work-related causation. 
As earlier noted, the onus is on the appellant to establish the causative link between any work-related activities and the injury condition in question, and having regard to all the factors which have been referred to, I have come to the clear view that because the appellant's claimed injury condition is not bilateral and also to the fact that the nature of the condition is one which can and does occur significantly from non-physical activities, then I find it cannot be established to the balance of probabilities by the appellant that there is a causative link between his work activities and the onset of the cervical osteoarthritic condition. 
Having made that decision, it is not necessary to consider another aspect of the claim for cover, namely whether the risk of suffering the personal injury is not significantly greater for persons carrying out the physical activities of the appellant from those who do not, but it does seem to be the case that the particular physical condition in issue is one which is widely experienced and it is likely that it would be the case that the appellant's activities were not substantially more likely to cause the medical conditions in issue. 
For the foregoing reasons, therefore, I find that it cannot be established to the necessary degree of probability that the appellant's work activities did cause the osteoarthritis degenerative changes to the appellant's cervical spine, and therefore this appeal is dismissed. 

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