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Young V A C C (341/2000) Isthmic spondylolisthesis - suspension

#1 User is offline   ernie 

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Posted 25 October 2004 - 07:50 PM

YOUNG v ACCIDENT COMPENSATION CORPORATION

District Court, Wellington (341/2000) 19 December 2000
Judge A W Middleton


APPEARANCES
M Bell, Counsel for Appellant
Mr A D Barnett, Counsel for Respondent

RESERVED JUDGMENT OF JUDGE A W MIDDLETON

[1]The issue in this appeal is whether the respondent was correct in its decision of 1 December 1999 ceasing further entitlements to the appellant.

[2]The background to the appeal is that the appellant suffered a back injury on 19 May 1998 when moving railway sleepers in the course of his employment in a gold mine. The appellant is now aged 54. The appellant lodged a claim with the respondent which granted cover in June 1988 and commenced payment of earnings related compensation effective from 22 May 1988.

[3]The first medical report was provided by Mr P Dayaram, an Orthopaedic Surgeon at Grey Hospital. That report is dated 24 August 1988 in which Mr Dayaram states:

“I see from the records that in July 1970 he was seen by Mr Allen, an Orthopaedic Surgeon in Hamilton. At the time he was working with the Power Board when he lifted a high tension cable and had acute onset of low back pain radiating into both legs. According to Mr Young, he fell off a power pole. Mr Allen told him that he had broken something in his back and he was treated in a plaster jacket which extended from mid-thigh to the nipple line. He remained in the jacket for three months. Thereafter he was put into a brace which he used for a further two months. X-rays at the time revealed a grade I spondylolisthesis.

He remained asymptomatic until 1974 when he was seen by Peter Tapsell at Rotorua with low back pain following a motorcycle accident. He was admitted to Queen Elizabeth Hospital where he was given hydrotherapy and subsequently discharged. Thereafter he saw a Chiropractor for a while.”

[4]Later in the report Mr Dayaram said:
“AP, lateral and oblique views of his lumbosacral spine taken today show a spondylolisthesis at the L5/S1 level with a 25% forward slip of L5 and S1. There is a pars interarticularis defect on both the right and left sides.

This patient’s low back pain is due to his spondylolisthesis at the L5/S1 level. His low back pain is aggravated by the type of work he does. As a digger driver he manages driving the digger but has great difficulty lifting buckets of sand and pipes which is part of his job description.”

[5]When that report was received the respondent declined the payment of further compensation because it concluded that the appellant’s back problems were not the result of the accident in May 1988. The appellant then applied for a review of that decision which was reviewed administratively as a result of which compensation was reinstated.

[6]In April 1989 the respondent wrote to Mr Dayaram requesting information on the appellant’s then position. On 2 May 1989 Mr Dayaram stated that the diagnosis was spondylolisthesis, and that the expected prognosis was good. He considered that the appellant would be able to return to work “maybe in four months”, and that he concluded that the appellant was still the respondent’s continuing responsibility.

[7]On 11 September 1989 Mr Dayaram wrote to the respondent stating that he had reviewed the appellant that day and that:
“He has responded well to the alar transverse fusion and I am pleased to hear that you are trying to set him up in a small business at the Scenicland Service Station. I understand he will be servicing and repairing chainsaws and lawnmowers and I feel that this will be ideal considering his back. I feel that he is not suitable to return to work as a labourer at the goldmines.

I feel that Bill should probably pursue this line of employment as it will be of great benefit to him if he could develop this into a successful business.”

[8]On 21 August 1991 Mr Dayaram reported:
“Mr Young continues to have problems with his low back. This is related to his previous problems where he had an attempt at alar transverse fusion but this failed.”

[9]The respondent referred the appellant to Mr D J Jones, an Orthopaedic Surgeon, for the purpose of making an assessment for lump sum awards under sections 78 and 79 of the Accident Compensation Act 1982. In his report of 10 September 1992 Mr Jones referred to the attempted stabilisation by Mr Dayaram:
“This was a conventional operative procedure. Unfortunately the graft has failed to take on two occasions and this man is now left with a major chronic functional disability both in terms of function and pain in his low back.

I understand he has recently been seen by Mr Walton, Orthopaedic Surgeon to see whether or not further stabilising surgical procedures using internal fixation would achieve the desired result.

Obviously this man’s structural weakness preceded his injury, however his injury must be regarded as an aggravation of a pre-existing problem and I believe is the responsibility of the ACC.”

[10]Mr Jones then provided as his assessment:
“In terms of Section 78 his current assessable disability is 25% of total. This is due to injury plus failed surgery, however when one subtracts the pre-existing problem it leaves him I believe with a disability assessable at 20% of total.”

[11]Following receipt of Mr Jones’ report the respondent made the appropriate lump sum awards under the 1982 Act.

[12]The appellant then obtained a report from Mr D I Walton, Orthopaedic Surgeon, which is dated 8 September 1994 in which he said that he had first seen the appellant on 9 September 1992. He noted that the appellant had previously had surgery for a lumbo sacral spondylolisthesis, and then provided answers to the questions posed to him by the respondent as:

“In answer to your questions the diagnosis is one of a non union of the previous attempted surgical fusion. I believe without further surgery, that he is likely to have an ongoing grumbling back and this seems to have been borne out over the last few years with ongoing incapacity.

I did say that I thought that he could be helped but would not give an absolute guarantee in such a complicated situation as this.

I would say that his workability at this stage seems very restricted indeed and in response to question 5, I would suggest that the current incapacity relates to the accident and the failure of the fusion relating to the 19th May 1988.”

[13]On 5 March 1998 Mr Walton provided a further report in which he considered the appellant had:
“significant problems in the leg, and evidence that he has got S1 nerve root problems. His back was certainly grossly irritable and he has significant problems with this.”

[14]The respondent then arranged for the file to be examined by Dr J R Monigatti, an Occupational Physician and Occupational Medical Advisor, who provided a report on 25 November 1999 in which he stated:

“Thank you for asking me to comment on the ongoing acceptability of this claim.

Mr Dayaram’s report of 24 August 1988 indicates that Mr Young had a long history of intermittent low back that worsened after an episode of heavy lifting in 1988. Investigations in 1970 and 1988 had revealed an isthmic lumbosacral spondylolisthesis.

Isthmic spondylolisthesis is a condition in which there is separation of the L5 vertebra into two fragments caused by a stress fracture through a congenital defect in the vertebral arch. The stress fracture occurs in infancy, whereas separation commonly happens during adolescence, usually without relation to injury or excessive force and usually without causing symptoms. The posterior fragment remains in normal relation to the arch of the sacrum, but the anterior fragment and the superimposed vertebra move forward.

Most cases of minor slippage are asymptomatic, but spondylolisthesis often gives trouble in middle age because of concurrent disc degeneration or stretching of the interspinous ligaments. Problems arising from a spondylolisthesis can therefore be considered age-related, even though the condition itself has a congenital basis.

Although Mr Young’s lifting exertions in 1988 may have caused temporary muscle strain, they did not cause or contribute to the spondylolisthesis that was responsible for his ongoing symptoms. Nonetheless, ACC were obliged at Review to accept the claim, and Mr Young proceeded to have a spinal fusion operation. The purpose was to rectify the instability caused by the spondylolisthesis and concurrent lumbosacral disc degeneration, as opposed to treating the effects of personal injury by accident.

Unfortunately, the operation failed and Mr Young is left with symptoms arising from L5-S1 instability, severe disc degeneration and secondary nerve root irritation. A revision of the fusion is proposed.

In my opinion, Mr Young is disabled by his spondylolisthesis and not by the effects of an injury suffered in 1988 that has long since resolved. His disorder is non-compensable for the reasons outlined in the District Court judgement Burke v ARCIC (198/98). It is up to you whether to revoke cover under section 29 of the 1998 Act or proceed with WCAP.”

[15]When that report was received the respondent notified the appellant on 1 December 1999 that following Dr Monigatti’s review of the file it was considered that his ongoing symptoms were not the result of personal injury, but were caused wholly or substantially by the ageing process, and that his entitlement to weekly compensation would cease as from 29 December 1999. The appellant applied for a review of that decision.

[16]The appellant gave evidence before the Reviewer in support of his application, and Dr Monigatti gave evidence on behalf of the respondent. The Reviewer concluded that he preferred the evidence of Dr Monigatti which persuaded him that the appellant’s ongoing condition did not relate to the accident in 1988, but was caused wholly or substantially by the pre-existing spondylolisthesis. It is against that decision which the appellant now appeals.

[17]In support of his appeal the appellant was given leave to adduce two additional reports from Mr Walton. In the first report dated 24 July 2000 Mr Walton stated:

“This man I saw today the 24th July 2000.
He has been assessed by a number of people and there is no doubt had spondylolisthesis which was not caused by the 1988 accident. The second question I believe relates to the fact that the accident did make his spondylolisthesis symptomatic and the accident was significant to have caused his symptoms and as we know spondylolisthesis can pass through life without much in the way of symptoms and may well be completely asymptomatic. Thus the accident as he describes it I believe probably began and started his symptoms.

With regard to question three I believe the accident and subsequent surgery failure are the reason for his ongoing symptoms at this stage. I would think that this ACC mention of being substantially the result of an ageing process is nonsense and would not subscribe to this.

I think this man is bona fide, ACC and they have an ongoing responsibility here.”

[18]In the second report dated 14 November 2000 Mr Walton stated:
“I respond to your letter of 23rd October and I had believed that this would be (sic) final letter from me as I do not think that I could be more concrete in my comments as of July 24th 2000.

With regard to some clarification here I would say that the ageing process basically has nothing to do with this and I think that the opinions attributed to Mr Sheriff counsel for the correspondent (sic) has no substance in regard to 49 Section C.

Further and I believe this to be absolutely self explanatory, if the accident in 1988 had not occurred, this man would not have needed surgery. As I mentioned that a number of these spondylolisthesis sail through life with no discomfort and am I to suppose that these people would need fusional surgery.

In short there is a tendency for some of the spondylolisthesis to give problems and often these are accident induced, the reasons for this are not clear but without the accident of 1998 this man would certainly have had a large prospect of never developing symptoms and hence would never have required surgery. I trust this to be the final decision here.”

[19]While both counsel referred me to a number of decisions of this Court, I consider that the issue must be decided on the medical evidence. The issue is whether the appellant’s ongoing symptoms are wholly or substantially the result of the ageing process being his pre-existing spondylolisthesis, or are the result of the 1988 accident. The initial medical reports were those provided by Mr Dayaram, and while he had diagnosed the existing spondylolisthesis, he considered that the nature of the work aggravated the back, and that the accident in May 1988 was such that he considered the appellant to be the ongoing responsibility of the respondent, particularly as attempts to remedy the pre-existing back problem following the accident had failed.

[20]Mr Dayaram’s diagnosis was supported by Mr Jones as early as 1992. He considered that the 1988 accident aggravated the pre-existing problem, but to the extent that it continued to be the responsibility of the respondent. In his assessment under section 78 of the 1982 Act, Mr Jones stated that the appellant’s total disability as a result of his back was 25 per cent, of which he concluded 20 per cent was attributable to the 1988 accident and the subsequent failed surgery. Thereafter there have been a number of reports from Mr Walton who has continued to see and examine the appellant, and concludes that it was the accident from which the resulting symptoms flow, rather than the pre-existing spondylolisthesis.

[21]Dr Monigatti has provided an explanation of the nature of spondylolisthesis, and discounts the effects of the injury suffered in 1988, which he considers to have been “long since resolved”. In view of the ongoing reports, particularly from Mr Walton, I do not consider that there is evidence to support Dr Monigatti’s assertion that the effects of the injury in 1988 have “long since resolved”. Mr Walton has been closely associated with the appellant over a considerable period, and his view supports that of Mr Dayaram and Mr Jones that the preponderance of symptoms arise from the effects of the accident and the subsequent attempts to surgically reinstate the back, and not from the spondylolisthesis.

[22]Accordingly I consider that the decisions of the respondent and the Reviewer are wrong, and that the appeal should be allowed. There will be costs to the appellant of $1,000 together with the costs involved in obtaining Mr Walton’s reports, if the respondent
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#2 User is offline   ernie 

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Posted 25 October 2004 - 10:09 PM

By the way, it is my opinion that Judge Middleton got the legal test wrong in Young v ACC, even though he arrived at the correct result.

The exclusion from cover under the 1972 and 1982 tests was if the condition were caused exclusively by the ageing process. The wholly or substantially test was only introduced with the 1992 Act.

So if you have cover under the 1972 or 1982 Acts, your entitlements can only be suspended if your current condition is caused exclusively by a gradual process, disease, or infection (that does not, in itself, give rise to cover).
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#3 User is offline   ernie 

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Posted 25 October 2004 - 10:55 PM

Quote

”It is up to you whether to revoke cover under section 29 of the 1998 Act or proceed with WCAP.”
- Dr John Monigatti, Young v ACC

What a wonderful choice of options.

And I fail to see what expertise BMAs have to make recommendations on whether a condition is compensable, as Monigatti did here. That is a legal issue - doctors expertise is in medicine, not law.
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