District Court Wellington 25 August 2010
On 21 June 2008, Mr Lyth fell three metres to the ground from a ladder. In the fall he sprained his neck. Mr Lyth claimed for the neck sprain and was covered by ACC. In July 2008, Mr Lyth’s GP ordered an x-ray and an MRI Scan, the GP then referred Mr Lyth to an Orthopaedic Surgeon. Initially the pain was treated conservatively. However, in November 2008 the surgeon recommended to Mr Lyth that he have a right C6/7 discetomy and instrumented fusion. On 24 November 2008, the surgeon sought approval from ACC for the surgery.
ACC’s orthopaedic surgeon believed that the neck pain was a “degenerative condition rendered symptomatic following an accident”. ACC has also stated that the MRI scan identified widespread degeneration in the appellant’s cervical spine including a prominent disc herniation at c6/7. Because of this ACC declined to cover the surgery. Mr Lyth still underwent the surgery in March 2009.
After the surgery My Lyth sought a review of ACC’s decision and provided a thorough report from his surgeon stating the neck pain was a result of an accident. The report stated that there was no evidence of Mr Lyth having problems with his C7 nerve root prior to the injury. Mr Gordon believed that degenerative change would have contributed to his injury but that the accident caused more than 25% of the problem. ACC had a second medical assessment done, which reaffirmed the opinion of the first and they re-declined to pay for the surgery.
Decision: For the elective surgery to be covered under the Accident Compensation Act the claimant needed to establish that the surgery was to treat a medical condition caused by accident for which the claimant had cover under the act.
The judge acknowledged that Mr Lyth’s spine was showing degeneration at the time of his accident. However, he believed that the degenerative changes were asymptomatic and not causing pain to the appellant prior to the fall.
The judge noted that the degenerative spine injury was more likely to “tip the nervous system over the edge,” than it would be with someone young and healthy. However judge noted that you must take a claimant as you find them and he believed it was important that radiculopathy is not asymptomatic. Therefore Judge Beattie believed there is a clear causus nexus between the fall and the onset of the C7 radiculopathy.
Conclusion: That a claimant must be taken as he is found and “the fact that the pathology had produced the nerve impingement is pre-existing and degenerative, does not affect the fact that if the impingement is caused by the trauma of the fall, then that impingement is a personal injury for which cover and treatment can be had.”