Ellwood v Accident Compensation Corporation

[2012] NZHC 2887

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1317 [2012] NZHC 2887

IN THE MATTER OF     an intended appeal under section 162 of the

Accident Compensation Act 2001

BETWEEN  MICHAEL ERNEST ELLWOOD Applicant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         20 September 2012

Counsel:         A C Beck for applicant

C Hlavac for respondent

Judgment:      1 November 2012

RESERVED JUDGMENT OF DOBSON J

[1]      The applicant in this proceeding (Mr Ellwood) seeks special leave to appeal from a decision of the District Court in which Judge M J Beattie found that the respondent (ACC) was entitled to suspend Mr Ellwood’s entitlements in respect of an accident he suffered in 1998.[1]

[1] Ellwood v ACC [2011] NZACC 145 (DC).

[2]      Mr Ellwood  received  ACC  cover  for  injuries  sustained  to  his  neck  and shoulder after two accidents in 1993 and 1995.  Medical treatment for those injuries included  two  surgical  interventions  which  achieved  nerve  root  decompression,

resolved neuropathic pain and allowed Mr Ellwood to return to work.

ELLWOOD v ACCIDENT COMPENSATION CORPORATION HC WN CIV-2012-485-1317 [1 November

2012]

[3]      Then Mr Ellwood was involved in a third accident in November 1998.   It appears that he was at the front of a barbecue trolley, sharing the load of carrying it down some stairs with another person, when he was struck by the trolley in his lower back at waist level.  The impact caused what Mr Beck has described as “significant and on-going pain in his neck”.   Mr Ellwood’s general practitioner described the injury as “a muscle strain, left shoulder  girdle and possible neck injury”.   The neurosurgeon who had previously operated on him, Mr Bishara, advised that any further surgery would be of no benefit as there appeared to be no nerve root damage in the relevant area.  Mr Ellwood was granted cover for a physical injury.

[4]      Subsequently,  ACC  sought  an  opinion  from  an  occupational  medicine specialist, Dr Drewry, whose opinion was that Mr Ellwood’s symptoms were not caused  by the  1998  accident,  but  were  a  result  of  degenerative  changes  in  his cervical spine.  Relying on that opinion, ACC suspended entitlements for the 1998 injury in October 1999.

[5]      Mr Ellwood challenged ACC’s decision to suspend his entitlements, first by way of review of ACC’s decision.  That was unsuccessful and Mr Ellwood appealed to the District Court.

[6]      In the first hearing in the District Court in August 2001, Judge Beattie heard a range of views on the cause of Mr Ellwood’s on-going pain.  In a decision delivered in April 2002, the Judge attributed an onus of proof to Mr Ellwood in linking the on-going pain to a physical injury, which he found had not been discharged on the balance of probabilities.

[7]      Leave to appeal having been granted, Mr Ellwood had partial success in this Court, when a re-hearing was directed on terms contemplating that further medical evidence would be obtained.[2]     Mallon J was concerned that decisions to suspend entitlements might be made inappropriately if resolved against claimants on the basis of  their  inability  to  discharge  an  onus.     Having  acknowledged  the  statutory obligation on ACC to make reasonable decisions, Mallon J’s judgment continued:[3]

... In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements?  In many cases it may not be.  Before entitlements are suspended at ACC’s initiative (or that suspension is upheld by a reviewer or the District Court) ACC should take steps to clarify the position one way or the other.  The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence.   Mr Beck’s proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect, terminated) is a reasonable one. If there is an insufficient basis then the test of “is not satisfied” is not met.  If there is a sufficient basis then ACC can be “not satisfied” of the right to entitlements.  As the reviewer and the District Court apply the same test the same approach should be taken at each stage.

[2] Ellwood v ACC [2007] NZAR 205 (HC).

[3] At [64].

[8]      The re-hearing before Judge Beattie appears to have focused upon further evidence  from  Professor Theis,  whose  opinion  was  to  the  effect  that  the  1998 accident triggered symptoms of an underlying degenerative disease but did not cause it, and that the 1998 injury was not sufficiently significant to have caused serious injury to nerve roots if Mr Ellwood’s neck had normal neural foraminae and no previous surgery.  The medical expert called for Mr Ellwood, Mr Finnis, included an opinion that the injury “irritated and possibly damaged nerve roots”, although those nerves may have been rendered susceptible to such injury by pre-existing degeneration.

[9]      Judge Beattie’s second decision, delivered in May 2011, found that ACC was entitled to suspend entitlements because Mr Ellwood’s on-going pain was not caused by, or attributed to, a covered injury.  Since then, Mr Ellwood has sought leave to appeal, which was denied in a decision by Judge Joyce QC on 13 June 2012.

[10]     An applicant for special leave is required to establish that there is a question of law that is capable of bona fide and serious argument, and that it arises in a case which involves some public or private interest of sufficient importance to outweigh the delay and cost of a further appeal.[4]   It will usually be necessary for an applicant to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there are some reasonable prospects of success.[5]

[4] Accident Compensation Act 2001, s 163; Waller v Hider [1998] 1 NZLR 412 (CA).

[5] Mills v ACC [2012] NZHC 1055 at [22].

[11]     ACC’s decision to suspend  entitlements was originally made pursuant  to s 116(1) of the Accident Insurance Act 1998.  That provision has subsequently been re-enacted as s 117 of the Accident Compensation Act 2001.  It materially provides:

The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that the claimant is entitled to continue to receive the entitlement.

[12]     In his second judgment, Judge Beattie would have been conscious that the re-hearing in March 2011 was only five or six months short of 10 years after the first appeal hearing before him.  Given the expectation in Mallon J’s judgment of further evidence, counsel and the Judge had conferred on a series of questions to focus the issues addressed by the medical experts at the re-hearing.    Judge Beattie acknowledged the prior state of the medical evidence, and cited extensively from the more  recent  opinions  provided  by  Professor  Theis  and  Mr Finnis,  including comments by each of them on the other’s opinions.

[13]     On his review of the more recent evidence in light of the medical background as traversed previously, Judge Beattie considered there was no evidence identifying a physical injury that had been suffered by Mr Ellwood, except for what might have been described as a shoulder strain.  In the absence of any on-going physical injury that had been caused by the 1998 accident, the on-going pain being experienced was attributed to a degenerative condition of Mr Ellwood’s spine.  Although the accident had triggered the onset of pain, that occurrence was not causative of a physical injury, but rather had triggered an asymptomatic pre-existing degenerative state that had become symptomatic and caused Mr Ellwood’s on-going pain.

[14]     Having been declined leave to appeal on proposed questions of law by the District Court, Mr Beck has sought leave to argue what he characterises as questions of law that would constitute a thorough challenge to all aspects of Judge Beattie’s decision  on  the  re-hearing.    Mr Beck  sought  leave  on  questions  that  can  be summarised as follows:

(a)      whether Judge Beattie applied an incorrect test by focusing on the need for a continuing physical injury caused by the accident, when entitlements  should  continue  unless ACC  has  established  that  the

on-going pain was caused wholly or substantially by a gradual process or disease;

(b)whether Judge Beattie’s approach failed to follow Mallon J’s decision in requiring a positive finding on the causes of on-going pain when, Mr Beck would argue, the evidence revealed substantial uncertainty as to the real cause of Mr Ellwood’s on-going pain;

(c)      whether Judge Beattie made material findings that were contrary to the evidence;

(d)      whether the decision failed to take into account relevant evidence; (e)           whether the Judge applied an incorrect approach to causation.

[15]     A number of these questions could easily stray into arguments on matters of fact which would not be available on a further appeal on questions of law.  Mr Beck justified inclusion of issues in these terms on the basis that an absence of evidence to support a decision or evidence that is clearly inconsistent with, or contradictory to, the decision may amount to an error of law on the authority of Edwards (Inspector of

Taxes) v Bairstow.[6]

[6] Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, [1955] 3 All ER 48.

[16]     ACC opposed leave on the basis that the principles adopted by Judge Beattie are well settled, and that no arguable question of law could arise on a further appeal.

[17]     The context in which all these proposed arguments arise is the potentially fraught issue of the causative link between an accident and pain in a claimant who also suffers a pre-existing degenerative condition, and the nature of a “trigger” for that condition to cause pain.   Numerous appellate decisions have addressed the manner in which the inquiry ought to be undertaken, each reflecting the nuances of

the medical circumstances as they arose.  A pertinent example is the adoption of an

earlier  analysis  by  Judge  Beattie  in  an  appellate  decision  of  Panckhurst J  in

McDonald:[7]

If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre- existing degenerative condition that can be covered.  The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle.  The accident did not cause the  degenerative  changes,  it  just  caused  the  effects  of  those  changes  to become apparent …

[7] McDonald v ACC [2002] NZAR 970 (HC) at [26].

[18]     More recently, Simon France J applied the approach suggested in McDonald, recognising that the “but for” test of causation is not sufficient to confirm entitlement for cover in relation to symptoms in these circumstances, and instead the accident must cause its own injury which continues to contribute to the incapacity.[8]

[8] Johnston v ACC HC Wellington CIV-2010-485-424, 25 September 2010 at [2], [14] and [20].

[19]     Mr Hlavac  cited  these  and  other  decisions  in  support  of  the  ACC’s submission that the law in this area is well settled, and that no question of law of any general interest can therefore arise on a further appeal in Mr Ellwood’s case.

[20]     Mr Beck  disputed  that,  and  argued  in  effect  that  if  the law is  settled as Mr Hlavac characterises it, then it should not be.  He bridled against a perceived lack of logic in any legal analysis depending on the proposition that a pre-existing but asymptomatic condition can be triggered into becoming a symptomatic cause of pain for a claimant as a result of an accident, without that trigger amounting to some form of physical injury.

[21]     This  issue  has  been  litigated  extensively,  and  I  agree  with  Mr Hlavac’s submission that the law on it is settled.   To the extent that it is relied upon in Judge Beattie’s decision, I do not accept that it gives rise to a question of law that would warrant a grant of special leave.

[22]     That point also addresses a number of the other proposed questions of law which, to a greater or lesser extent, were subsidiary to this principal one.   For

instance, the criticism of the test applied by Judge Beattie on causation required the Judge to be satisfied that the symptoms were not caused by a physical injury, but it did  not  necessarily  follow  that  the  Judge  also  needed  to  be  satisfied  that  the symptoms  were  caused  by  a  gradual  process  or  disease.    The  argument  for Mr Ellwood  makes  more  than  is  justified  of  the  onus  on  ACC  to  establish definitively  what  the  cause  of  on-going  pain  is.    Mallon J’s  concern  was  that entitlements should not be suspended where the potential causes of pain were more or less equally likely hypotheses of qualifying and excluded causes.   It is not inconsistent with that approach to focus in a negative sense on discounting the contribution  of  an  injury  as  the  cause  of  pain  in  a  definitive  sense,  without necessarily solving every medical puzzle as to what other causes contributed to the symptoms complained of.

[23]     The remainder of the proposed questions of law required a review of the justification for Judge Beattie’s factual findings.  Mr Beck equates the difference of medical opinions with an inevitable uncertainty as to the causes contributing to Mr Ellwood’s symptoms.  That argument is not justified in the circumstances of this case where it was open to the Judge to prefer the opinion of one of the experts over the other.

[24]     Similarly,  the  criticism  of  failure  to  review  all  of  the  previous  medical evidence  is  sufficiently  explained  by  the  Judge  in  the  context  where,  after  a significant lapse of time, the parties pursued an updating of the medical evidence consistently with the directions provided by the High Court.  Whilst Mr Beck might, in the context of a general appeal, persuade this Court to take a different view about the totality of the evidence, there is no realistic prospect of establishing that the findings were unable to be supported by, or were inconsistent with, evidence in the sense recognised as an error of law in Edwards v Bairstow.

[25]     Mr Beck’s most emphatic criticism of Judge Beattie’s decision was that he

had made a completely wrong finding that there was no evidence of nerve root radiculopathy. The Judge addressed the point in the following terms:[9]

... it is a fact that the appellant did commence to experience pain following the trauma of the accident but, ... there is no evidence of nerve root radiculopathy (compression) and therefore the pain which the appellant is experiencing is not that of nerve root radiculopathy, and if it is not from that cause then it must be from the degenerative condition of the appellant’s cervical spine.

[9] Ellwood v ACC [2011] NZACC 145 (DC) at [34].

[26]     Mr Beck  argued  that  this  finding  was  wrong  in  light  of  evidence  from Mr Finnis   that   the   appellant’s   condition   was   “left   C7   radicular   pain   and radiculopathy secondary to C7 nerve root impingement at the C6/7 foramen”.

[27]     Mr Hlavac disputed that the effect of Mr Finnis’s evidence renders Judge Beattie’s finding on this point incorrect.   Mr Hlavac drew a distinction between a diagnosis of nerve root impingement and one of nerve root compression, pointing out that  Mr Finnis  accepted that  any nerve root  impingement  was  secondary to osteophyte development or degenerative changes, and not secondary to any acute structural change initiated by injury such as would occur with a disc prolapse.

[28]     In terms of the evidence reviewed in Judge Beattie’s decision, the last word on the topic from Mr Finnis was in his response to Professor Theis’s answers to the six questions that had been posed for both of them.  Mr Finnis’s evidence was in the following terms:

We both agree that the underlying problem is one of degenerative disease causing foraminal narrowing.  Professor Theis believes this is the dominant problem and that the resulting radicular symptoms are the sequelae of the effects of this and not injury, with there being no structural injury occurring at the time of the accident.   I have, however, discussed in my report the possibility of interpreting new radicular symptoms at the time of the injury as the effects of injury to the nerve and that new structural change, obvious on modality such as MRI scans, may not be relevant.  I agree with Professor Theis that the underlying problem in the neck, however, is degenerative changes. ...

[29]     On the basis of that measured rejoinder from Mr Finnis, it was open to Judge Beattie to find that there was no evidence of nerve root radiculopathy.   Rather, Mr Finnis was not excluding the possibility that radicular symptoms were the effects of injury to the relevant nerve.   Particularly if the Judge drew a distinction that Mr Hlavac  suggests  is  legitimate  between  impingement  of  a  nerve  root  and  its compression,  whilst  one  of  the  experts  holds  out  the  possibility  of  nerve  root

radiculopathy, when the other says that has not occurred, it is open to the Judge to find there was no evidence of it being present.

[30]     As to the absence of more detailed analysis of the prior medical evidence, that could not constitute an appropriate question of law.  In describing the context in which  the  re-hearing  occurred  before  him,  Judge  Beattie  acknowledged  that  he would not  re-state the  medical  evidence  which  had  been  presented on  the first appeal, and would confine his decision to the more recent reports.  Having made that comment, he acknowledged the need to review the earlier medical history and did so. Reviewing the decision overall, there can be no seriously arguable question that relevant evidence was not taken into account.

[31]     On all of these grounds, I am satisfied that grounds for granting special leave cannot be made out, and the application must be dismissed.

[32]     There will be no order as to costs.

Dobson J

Solicitors:

Peter Sara, Dunedin for applicant

Young Hunter, Christchurch for respondent