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Hayes V Acc (165/04) Request For Surgery. Treatment - causal nexus to injury?

#1 User is offline   ernie 

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Posted 24 September 2004 - 03:43 PM


District Court, Wellington (165/2004)
Judge J Cadenhead

Mr M Gibson, for Appellant
Mr I Hunt, for Respondent


The Issue
  • At issue in this appeal is whether the respondent correctly determined, in a decision letter dated 25 September 2002, that the appellant’s request for treatment should be declined. The respondent refused the appellant’s request for surgery, because it is alleged that the surgery was required because of the appellant’s pre-existing spinal stenosis.

    Narrative of Facts

  • The appellant, aged 70 years, lodged two claims. The first was on 16 June 2001, for a thigh sprain, knee sprain and contusion of the stomach; the date of the accident was stated to be 11 June 2001 (G2224037/009). The appellant slipped on ice at the bottom of her path and landed with her left leg twisted behind her.

  • The second was lodged and accepted on 17 October 2001, for a new sprain and contusion thorax – chest (claim G2224037/010). This was in respect to an accident, when the appellant tripped over a board, while coaching a marching team and landed on the base of her spine.

  • On 10 July 2002 the respondent wrote to the appellant and said it had received a request for surgery from Mr Hodgson, the appellant’s treating orthopaedic surgeon, and had referred that matter to its Dunedin contact centre for a decision. Subsequently, on 9 August 2002, Mr B F Hodgson, orthopaedic surgeon, requested the Corporation to fund surgery for the appellant, noting both dates of accident (11 June 2001 and 12 October 2001). The surgery request was for L3/4 discectomy and foraminotomy. The reason given for the surgery request was bulging of the L3/4 disc with narrowing of the exit foramen at this level. The request stated that there was “a direct link between her symptoms and personal injury”

  • On 25 September 2002 the respondent wrote to the appellant and said it had declined the request for lumbar spine surgery, because it believed the treatment was needed to correct a pre-existing spinal stenosis.

  • On 24 March 2003 the review application was dismissed.

    The Review Decision

  • The reviewer said that the issue was one of causation: whether or not the appellant’s need for surgery was caused from the injuries that she sustained in 2001, and particularly the injury dated 11 June 2001. The onus on this issue was on the appellant upon the balance of probabilities. The reviewer said that while the two injuries did not specifically relate to a back injury, the general practitioner noted that she was tender over the paraspinal muscles in the lumbar region following the accident on 11 June 2001. The reviewer accepted that both accidents resulted in the appellant falling on her tailbone and causing the symptoms resulting in her referral to Mr Hodgson and his recommendation for surgery. The reviewer, also, accepted that following the original accident back in 1992 and her subsequent surgery the appellant had essentially been able to carry out her normal activities until the most recent accidents. However, it was clear that she did have some symptoms before these accidents.

  • The reviewer said that but for the accidents it would be highly unlikely that the appellant would require surgery. He said that this was not the question that had to be answered, as the issue was not whether her symptoms were worse after the accident, as that did not satisfy the tests as outlined in the relevant case law.

  • The reviewer found that Mr Hodgson had diagnosed the appellant as having an L3/4 disc protrusion with foraminal stenosis and that the accident made the symptoms worse: the underlying condition being a pre-existing condition. The reviewer found that it was the underlying condition that precipitated the need for the surgery. The reviewer dismissed the review application on this ground.

    The Medical Opinion of Professor Theis

  • The report of Associate Professor J C Theis, orthopaedic surgeon, is dated 5 March 2004. He said that on 18 October 1998, spine x-rays were taken, which suggested that the appellant had had back pain for at least 15 years. In a report dated 14 July 1992 (being a letter from Mr Hodgson to the appellant’s GP, Dr N Inskip), reference was made to the appellant having had “niggly low back pain for a length of time”. It was said that she had developed left sided sciatica when she fell from a cycle on 1 February 1992. The report, however, was dated 14 July 1992. Initial impression was of an L4/5 disc prolapse, but it was necessary to carry out a CT scan, “to see what is going on”.

  • On 8 September 1992, Mr Hodgson noted that the CT showed a “…diffuse bulge at the L4/5 disc, more so on the left, and interestingly there was a very large osteophyte arising from the left facet joint at the L5/S1 level extending into the intra-vertebral foramen compressing the L5 nerve route.” He considered a decompression of the lumbar spine was needed.

  • Of the CT scan, Associate Professor Theis is of the view that there was also disclosure of degenerative changes in the facet joint at the level of L4/L5 and L5/S1. It was clear that this was evidence of degenerative disease at that level.

  • On 4 November 1992, Mr Hodgson carried out a laminectomy of L5. Associate Professor Theis describes it in this way:

    “…undercutting facetectomy between L4/L5 and L5/S1… and did not do a discectomy because he obviously found that the compression was not due to a disc prolapse but due to narrowing of the spinal cord as a result of degenerative disease. An undercutting facetectomy basically removes osteophytes from the facet joint which are grown as the result of osteoarthritis. The procedure carried out in this case was not a discectomy but a procedure which is normally done for degenerative spinal stenosis”.

  • She came back for review by Mr Hodgson on a number of subsequent occasions in 1993; on 1 October 1993, he reviewed the situation, noting that “…she had had a long history of niggly low back pain…”.

  • The condition appeared to settle for a while, until the appellant was referred by her GP to Mr Hodgson again in 2001. In a letter to the GP dated 28 August 2001, Mr Hodgson stated that the appellant had developed “claudiciant sciatica on the right hand side over the past eight months”. He then said:

    “You may remember we carried out a laminectomy of L5 in 1992 for back pain and spinal claudication from which she made a very good recovery and got herself pretty fit in getting back into marching as both a teacher and judge. She has kept herself fit over the years by walking regular distances up to 25 kms, but around Christmas last year she started developing onset of back pain and right sciatica with radiating from the buttock into the groin, also down the front of the thigh, to the calf towards the ankle, no real paraesthesiae or numbness as such or weakness. The discomfort is becoming progressively more marked and now interferes with her walking such that she is really only able to do a couple of hundred metres without having to stop and sit down…”.

  • He recommended an MRI scan.

  • She was reviewed on 18 December 2001. Mr Hodgson reviewed the MRI scan noting mild spinal stenosis at L4/5 and L3/4. He did not believe this explained her symptoms completely, and thus queried the vascular status in her legs.

  • Associate Professor Theis noted that he had ordered some other investigations probably on the basis that he was not quite sure which nerve routes were causing her problems in view of the fact that the MRI scan showed that three levels were affected. On 28 May 2002, a CT myelogram was carried out. In Associate Professor Theis’s view, this did not add anything additional to what was already known.

  • On 4 July 2002, Mr Hodgson wrote to the GP recording the conditions again, but this time stating that the patient had indicated that her problems commenced after two falls, one in June 2001, and the second in October 2001. The point system at Dunedin Hospital was insufficient to put her on the waiting list for surgery, and so he thought there should be an approach to the ACC. His statement in this letter, as to the onset of problems was contrary to what he had recorded in his letter of 28 August 2001.

  • Following a GP referral dated 9 July 2002, Mr Hodgson wrote to the Corporation on 9 August 2002, advancing the request for funding for surgery. This resulted in a decision letter, declining the request, dated 25 September 2002.

  • Subsequent correspondence has to be referred to, however, to complete the history. An application for review was lodged on 11 October 2002.

  • On 5 February 2003, the Corporation wrote to Mr Hodgson, seeking clarification of the symptoms to which he had referred in his letter.

  • He responded by letter dated 14 February 2003 stating, inter alia, that when he had seen the appellant, and when he had written his letter of 28 August 2001, he had been “…unaware that she had been injured, but I noted the symptom as outlined”. He went on to say:

    “I generally take people on face value and having known Mrs Hayes over quite a number of years, I have noted an excellent response to previous surgery, so her statement that her symptoms have been precipitated by a fall did not surprise me, given the findings on the CT myelogram”.

  • On 20 February 2003, the Corporation wrote again to Mr Hodgson, seeking clarification as to whether the appellant had required surgery to her back because of spinal stenosis. It was also pointed out that no reference existed to back symptoms in the ACC 45, as lodged by the appellant, or in the GP notes.

  • Mr Hodgson replied on 25 February 2003 stating that although there was no mention of a back injury, this did not necessarily mean that there was not an injury. He concluded:

    “…I believe it is quite possible Mrs Hayes L3/4 disc protrusion and spinal stenosis can indeed be linked to the accident on 11 June 2001 which would indeed fit with her presentation to me in August 2001 with the onset of symptoms.

    It is quite a common scenario for people to have a problem as a result of an accident but not to link the problems to that incident until the chain of events and circumstances is unfolded”.

  • On 21 July 2003, the surgery was carried out at Dunedin Hospital. Mr Hodgson carried out a lamenectomy of L4, partial inferior lamenectomy of L3, undercutting facetectomy of L3/L4 and L4/L5, as well as foraminotomy of L3/L4/L5 nerve routes on the right side. As Associate Professor Theis notes, no discectomy was carried out. The procedure was aimed at enlarging the spinal canal which had been narrowed by the degenerative process at the level of the posterior facet joints mostly.

  • Associate Professor Theis then presents his conclusion as follows:
    “In summary it is clear this claimant has had longstanding degenerative disease of her lower back which has resulted in spinal stenosis which is narrowing of the spinal canal resulting from degenerative disc disease and osteoarthritis of the facet joints which leads to narrowing of the spinal canal and nerve root compromise. The claimant has now had two spinal decompressions, one in 1992 and one in 2003 and seems to have benefited quite significantly from the surgery.

    I have reviewed all the investigations carried out on the claimant’s lumbar spine and at no stage have I been able to identify any injury related pathology in the form of a localised disc prolapse compressing a single nerve root. All investigations point towards a degenerative process in the form of a spinal stenosis which has been treated successfully by decompressive surgery.

    The injuries mentioned in the information provided to myself dated 11 June and 17 October 2001 are merely coincidental and although chronologically related to the time when the claimant’s back problems started there is no medical evidence that there is a direct causal effect of the alleged accident on the claimant’s spine pathology. However, there is ample medical evidence that the condition the claimant is suffering from is a result of a degenerative disease of the lumbar spine”.

    The Medical Opinion of Mr Hodgson

  • Mr Hodgson in his latest medical opinion dated 1 April 2004 reconfirmed his previous opinions and canvassed the medical opinions of Professor Theis. He said that the appellant had had significant problems in the lumbar spine, which necessitated surgery in 1992. She made a good recovery this in large, but redeveloped problems around 2000, associated with the two injuries.

  • He was concerned that she might have a further injury to the lumbar spine at the level above the previous surgery and he arranged for a MR and CAT scan. The MRI scan showed disc bulging at the L3/4 and L/4/5 with spinal canal narrowing at the same levels. The previous laminectomy defect at L5 was noted. EMG studies were arranged and a CT myelogram was carried out in May 2002. In the opinion of Mr Hodgson the CT mylegram showed a bulge of the L3/4 disc with narrowing of the exit foramina on the right side and compression of the L4 nerve root. In the view of Mr Hodgson in conjunction of the symptoms of the appellant surgery was necessary for exploration of this level and decompression of the L4 nerve root.

  • Surgery was unable to be carried out in the private sector and was carried out in July 2003 at the Dunedin Hospital. The surgery was carried out for a traumatic related problem (the L3/4 disc prolapse and L4 nerve root compression). The surgery was carried out to deroof the nerve root to gain access to the nerve roof canal without the need for removing a protrusion, which had precipitated the crisis in the first place. In the opinion of Mr Hodgson the appellant underwent surgery to correct the problem that occurred at the L3/4 level with nerve root compression, this was a result of an injury to the L3/4 level with nerve root compression. This operation was as a result of a injury to the L3/4 disc that he believed on a balance of probabilities was related to the injuries she sustained in 2001.

  • Mr Hodgson believed that Mr Theis was wrong in his assumption that because Mr Hodgson did not carry out a discetomy that this implied that this was not a traumatic problem. Surgery to free root nerves in the lumbar spine is often carried out to expose and free the nerve root and by doing so, often a disc protrusion may not necessarily need to be removed.

    Legal Principles

  • The material provisions of clauses 1 and 2 of the First Schedule to the Act, describe the Corporation’s liability to pay or contribute to the cost of treatment. The crux of the liability is that the Corporation is liable to pay or contribute to the cost of a claimant’s treatment “…for personal injury for which the claimant has cover”.

  • The onus is on the appellant (e.g. Hudson (164/00); and Coffin (247/02)). As to causation, it is well established that this is a “common sense” concept. It is well encapsulated by the Court in Gazzard (313/01):

    “It is a basic principle of the Act that a claimant only has a right to a statutory entitlement when that claimant can establish that entitlement arises as a consequence of the personal injury for which cover was granted. … The incapacity must be caused by or as a consequence of the personal injury by accident. In other words there must be a direct causal nexus between the injury which was suffered in the accident and the physical condition which was causing the incapacity at the time when that inquiry is being made”.

  • I am mindful of the observations of Panckhurst J in McDonald v ARCIC [2002] NZAR 970 where he said at para [30]:

    “… It poses a single test: whether the disease is the whole or the substantial cause of the injury. If so, cover is unavailable, regardless that the accident triggered (or accelerated) the progression of the disease.”

  • I appreciate that the issue in the case of McDonald concerned a claim for entitlements and whether the effect of symptoms arising some considerable time after the accident had happened still persisted as a substantial contributing cause. As Panckhurst J observed at para [21]:

    “… It follows that in the present case for example the disease, osteoarthritis , excluded cover only when it was the whole or substantial cause of Mr McDonald’s personal injury. The impact of the disease less than that, say at a minor or even moderate level, would not rise to give exclusion of cover. Put another way an accident remains causative until such time as disease (or other excluded conditions) is causative of the relevant injury to at least a substantial degree.”

  • In this case the concentration is upon the issue of whether an operation at the time of request was necessitated or caused substantially by the relevant accidents for which cover had been granted. In causation issues it is important to state clearly the effect attributed to the cause in order to answer the causation issue. Clearly, the issue of continuing entitlements some time after the initial accident poses different factual and medical questions than that of the need for an operation, occurring within a short time from the occurrence of the accident. The question to be answered is what was the substantial cause for the operation sought?

    Submissions of the Respondent

  • The respondent submits that the evidence is that the appellant slipped on ice at the bottom of her path and landed with her left leg twisted beneath her (11 June 2001); and tripped over a board while coaching a marching team, landing on the base of her spine (12 October 2001).

  • The condition for which the surgery was required, as described by Mr Hodgson in his report of 9 August 2002, was a bulging of the L3/L4 disc with narrowing of the exit foramen at that level. Once the procedure was in fact carried out, it was not necessary to perform a discectomy, and as Associate Professor Theis has noted this procedure was aimed at enlarging the spinal cord which had been narrowed by the degenerative process.

  • It is submitted that the appellant cannot establish causation, for two main reasons.

    [40]The first reason is that, on a dispassionate review of the history, Associate Professor Theis’s view is that, despite careful analysis of all relevant tests including x-rays, CT scans, and other clinical records, at no stage has there been any injury related pathology such as a localised disc prolapse compressing a single nerve route. All that is evident is a degenerative process in the form of spinal stenosis.

  • Nor is there any evidence of trauma having made symptomatic a previously asymptomatic condition, or hastening the effects of a pre-existing degeneration. The fact is the degeneration has been evident from well prior to 1988 (the first x-ray reviewed by Associate Professor Theis), and it is the consequences of the degeneration which have emerged from time to time.

  • The second submission relates to the inconsistent evidence which has come from both the appellant and Mr Hodgson (this is not a criticism but merely a statement that upon analysis, there are inconsistencies which tell against causation).

  • As far as the appellant herself is concerned, there is no mention of back pain at all in either of the claims lodged in June 2001 and October 2001. Allied to this, there was no reported back pain at the time the GP saw the appellant, in June and October 2001 (see his letter to the Corporation dated 17 September 2002, when he refers to “fall on snow, injured lt knee and hip” and the second “awaiting MRI scan for probable recurrence spinal stenosis end November 2001”.)

  • In Mr Hodgson’s material, there is a marked inconsistency between what he reported in August 2001 (claudiciant sciatica on the right hand side over the past eight months), and what he reported in his request for surgery on 9 August 2002 – (a direct link between her symptoms and personal injury).

  • In summary, the contemporaneous evidence in 2001 does not endorse the later speculation as to trauma related injury, or that those incidents triggered an asymptomatic previous condition.

  • Accordingly, the respondent submits that since causation cannot be established this appeal must be dismissed.


  • The review officer found that but for the accidents it would highly unlikely that the appellant would have required surgery. He said that because the claimant’s symptoms were made worse by the accident that did not satisfy the legal tests propounded by McDonald (supra). It seems after reading the review officer’s decision he accepted the evidence of the appellant as to the accidents resulting in her falling on her tail bone.

  • Mr Hodgson was the operating surgeon, and in my opinion, his stance has been constant, both before and after the surgery: the accident was the cause for the surgery. I am of the view that, as the operating surgeon he had an advantage in formulating his opinion over that of Associate Professor Theis. I find the reasons given by Mr Hodgson convincing and persuasive.

  • In my view, the operation subsequently carried out at Dunedin Hospital on 21 July 2003 was substantially carried out because of the two falls occurring in 2001. I accept that there is a degenerative condition in the form of spinal stenosis existing in the appellant. However, I am of the view, that the two falls were the cause for the surgery being undertaken and that this was the substantial reason for the operation: not the degenerative condition. I am satisfied on this issue to a balance of probability. I accordingly, grant the appeal. I quash the review hearing and the primary decision of the respondent. The appellant is entitled to cover for the costs of the operation (if there are any). I award the appellant the sum of $1200 costs and disbursements.


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