Robert Ballagh v Accident Compensation Corporation (ACC)
Wellington District Court 2009
Mr Ballagh, sought medical treatment for a back injury on 2 May 2007. Mr Ballagh was diagnosed as having a L3/4 disc prolapse. In his course of treatment, Mr Ballagh, was seen by his GP, a doctor and a surgeon. Mr Ballagh disclosed during a complete history assessment in January 2008 that he had been in a skiing accident in January 2007. Mr Ballagh’s surgeon felt the disc prolapse was a result of the skiing accident. Because of this Mr Ballagh lodged a claim with ACC.
Prior to the 2007 skiing accident Mr Ballagh had an extensive history of back pain. In 1976 he had an L5/S1 discectomy; this was followed by two operations relating to fusion in 1984 and 1988. Until he consulted his surgeon, Mr Ballagh had believed his back pain in 2007 was a continuation of earlier problems. Mr Ballagh stated this was why he had not disclosed his skiing accident earlier.
ACC’s medical assessor disagreed to the cause of Mr Ballagh’s disc prolapse. The assessor felt that the L3/4 disc prolapse was the result of gradual deterioration and had been occurring prior to the skiing accident in 2007. The assessor believed given Mr Ballagh’s history, it was likely the disc prolapse was symptomatic of a degenerative back problem.
• Causal nexus
Judge Beattie stated the only issue for consideration was, “whether there is sufficient evidence of a causal nexus between the skiing accident and the subsequent diagnosis of a lumbar disc prolapse.”
Judge Beattie examined the evidence and concluded that there was substantial evidence that Mr Ballagh had a history of degenerative back pain. However, ACC had failed to provide evidence that the L3/4 disc prolapse was part of this degenerative condition. ACC had also failed to show that the prolapse had occurred prior to the skiing accident in 2007. The judge noted there was also no mention in the surgeon’s notes, or in the MRI scan that the L3/4 disc was in a degenerative state.
Judge Beattie believed that the Medical Examiner’s report provided by ACC was too simplistic. The judge rejected the assessor’s suggestion that Mr Ballagh’s injury could only result from non-traumatic causes. The judge felt that as Mr Ballagh’s surgeon had been the treating surgeon who identified the problem, his assessment must be given due weight.
Mr Ballagh’s surgeon had noted that the nature of the skiing accident was consistent with it having caused the disc protrusion. He also advised this disc prolapse was the source of most of Mr Ballagh’s pain subsequent to the accident. The Judge felt that with no evidence to the contrary, Mr Ballagh’s surgeon had sufficiently shown a causal nexus between the accident and the injury.
Conclusion: When examining the evidence, the Judge gave due weight to the “treating surgeon[‘s]” opinion. The Judge felt that ACC had not proven on the balance of probabilities that the prolapse was the result of a degenerative disorder. He also found there was no evidence to show that the L3/4 disc prolapse had occurred prior to the skiing accident in 2007.
Therefore, on the balance of probabilities there was a reasonable “causal nexus,” between the skiing accident and the subsequent back injury.