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Dozer driver overturns ACC decision declining cover for accident in 1995

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A bulldozer driver has convinced a judge his back injury was related to an accident in 1995. Photo / 123RF

A bulldozer driver who’s had “quite a few accidents in his life” has managed to convince a judge that ACC was wrong to decline cover for an accident injury from 25 years earlier.

The accident in which John Robinson split his helmet, slashed his head and compressed his spine, was found to be the cause of his ongoing problems; some of which ACC claimed were age-related.

Robinson argued they weren’t. He has now won an appeal against ACC’s decision in 2020 to decline cover for a prolapsed disc in his lower spine, which was linked to the accident in 1995.

The long-time adversary of ACC, who has worked as an advocate for many others over the years, told Open Justice the court decision meant that the long-standing injury could now form part of a broader reassessment for disability entitlement.

The Northland heavy machinery operator has worked in heavy manual activities since he was 15, initially in the forestry area pruning trees with a chainsaw.

A Northland man who successfully fought ACC has worked in heavy manual activities since he was 15, initially in forestry pruning trees. Photo/123RF
A Northland man who successfully fought ACC has worked in heavy manual activities since he was 15, initially in forestry pruning trees. Photo/123RF

In January 1995 Robinson was clearing pine trees from a ridge and pushing them down into a valley with a bulldozer when the branch of a large pine tree got stuck in the ground.

As Robinson tried to push the tree down, the bulldozer rose up and plunged forward. He was catapulted headfirst into the safety cab of his bulldozer.

The force split his safety helmet, left a gash in his scalp and compressed his neck and spine before he dropped back down into the cab.

A month later he had another accident in a bulldozer when he was thrown off and onto the steel canopy, also hitting his head. This cracked his safety helmet open, but he was “not too badly affected”.

In December 1996, an accident in a truck prompted his long-running battle with ACC.

Robinson crushed his right ankle, resulting in an open compound fracture, when the truck he was in rolled.

He told the District Court during an appeal hearing in July this year that the ramifications of his bulldozer injury in 1995 did not come to light until years later.

However, since early 2005 he was reported to have had worsening low back pain, initially intermittent and now constant.

He told Open Justice that while he had received cover for some of the injuries suffered in the ’95 accident, he’s had to fight to get cover for the back injury.

The District Court said in a decision released last week that the focus of the appeal was on whether or not ACC’s decision of July 2020 declining to cover the additional diagnosis of lumbar disc prolapse was correct.

The accident in the spotlight was that which occurred on January 13, 1995, when Robinson was clearing logs with the dozer.

“What seems clear from the file is that the appellant, who is now 67, has suffered a great number of accidents causing injury during his life,” Judge Chris McGuire said.

He said although complete records related to the initial accident appeared to no longer exist, a relatively full description of it appeared in a specialist’s medical review of June 2011, which concluded that while some of the problem was linked to degenerative changes, 80 per cent of Robinson’s symptoms were the result of injury.

An assessment report and treatment plan compiled in 2015 in relation to the 1995 accident, concluded that Robinson’s “chronic lumbosacral pain is most likely due to internal disc disruption”.

The results of an MRI in September 2015 were used in a report to ACC which said diagnosis was “more likely than not”, lumbar internal disc disruption”.

A further report by a musculoskeletal medicine specialist in early 2019 diagnosed “24 years of lumbosacral pain following bulldozing accident. Currently increased lumbar pain”, plus lower leg and foot paraesthesia.

Another MRI in March 2019 showed not much had changed since the previous scan.

ACC argued that causation was central to the case, and there was a lack of robust evidence to prove it.

ACC said there was no record of Robinson suffering symptoms of a lumbar disc prolapse until at least six years after the accident, which was inconsistent with the accident itself causing the lumbar disc prolapse.

ACC also argued that neither of the medical practitioners who supported Robinson’s claim had been able to explain the delay in the onset of symptoms.

It said the lumbar disc prolapse was caused by age-related degeneration and that it preferred the evidence of an independent expert.

Orthopaedic assessor, Dr Vasudeva Shivaraya Pai said in his evidence that he had “not come across any case reports in world literature of anyone presenting with pain in the lumbar spine after 20 years following an injury event”.

He said that in his opinion the MRI evidence showed there was no indication to suggest any traumatic injury had occurred and the findings were consistent with normal age-related changes.

“Low back pain with or without sciatica can be precipitated spontaneously with or without trauma.

“In my opinion, his presentation is not consistent with an acute traumatic disc prolapse in 1995.”

Judge McGuire concluded that because Robinson was aged 60 when the 2015 MRI scan was taken, if the internal disc disruption was as a result of degeneration with age, then there would have been further detectable degeneration on the MRI scan taken in 2019.

However, no further degenerative change was reported.

“I find that this fact tips the balance in favour of a conclusion that the appellant’s internal disc disruption is injury related rather than age-related.

“Accordingly, the appeal is allowed and ACC’s decision of 14 July 2020 declining cover for additional diagnosis of lumbar disc prolapse is reversed,” Judge McGuire said.

Robinson told Open Justice said it had been a long fight, and while he believed in ACC, he was “against a corrupt system”.

“The ACC system itself is brilliant but a turning point for me was when it changed from asking, ‘how is this person entitled to help’, to ‘how can we avoid giving this person an entitlement’.”

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