Scheme:



PENSION SCHEMES ACT 1993, PART X

DETERMINATION BY THE DEPUTY PENSIONS OMBUDSMAN

|Applicant |: |Miss M O’Regan |

|Scheme |: |NHS Injury Benefit Scheme (the Scheme) |

|Respondents |: |NHS Business Services Authority (NHS Pensions) |

MATTERS FOR DETERMINATION

1. Miss O’Regan is aggrieved that her application for a permanent injury benefit (PIB) has been rejected on the grounds that she has a pre existing medical condition.

2. Some of the issues before me might be seen as complaints of maladministration while others can be seen as disputes of fact or law and indeed, some may be both. I have jurisdiction over either type of issue and it is not usually necessary to distinguish between them. This determination should therefore be taken to be the resolution of any disputes of fact or law and/or (where appropriate) a finding as to whether there had been maladministration and if so whether injustice has been caused.

MATERIAL FACTS

3. Regulation 3(2) of the NHS Injury Benefit Regulations 1995 (as amended) (the Regulations) provides:

“This paragraph applies to an injury which is sustained and to a disease which is contracted in the course of the person’s employment and which is wholly or mainly attributable to his employment and also to any other injury sustained and, similarly, to any other disease contracted, if –

a) it is wholly or mainly attributable to the duties of his employment; …”

4. Miss O’Regan was born on 5 May 1966. Because of changes in her marital status she is referred to in this report both as Miss O’Regan and Mrs Sear.

5. PIB is available where the above criteria are met and the person has consequently suffered a permanent reduction in their earning ability of greater than 10%.

6. Miss O’Regan was employed to work at Bedford Hospital NHS Trust as a Senior Staff Nurse from April 1989. She suffered a partial rupture of her Achilles tendons in December 1990 when she was running to a cardiac arrest. She was off work for six months and, when she returned to work in July 1991, she worked part time on permanent night duty.

7. On 4 February 1994, Miss O’Regan consulted her GP because of the onset of neck pain following lifting a patient. She was off work for three weeks. She again experienced pain on 5 May 1994, but this time in her lower back. She stopped work and was admitted to hospital for five days but after three weeks she returned to work.

8. She did not then experience any problems until 30 April 1996, eventually going on sick leave from 28 May until 9 December 1996, when she returned to a different job. Her employment ended on 18 August 1999.

9. On 6 December 1999, a judgment was reached in the Clerkenwell Court regarding Miss O’Regan’s claim that she had suffered damage and injury as a result of breaches of duty by her employer, Bedford Hospital NHS Trust (the Employer). Miss O’Regan was provided with a summary of the proceedings drawn up by the solicitors who had represented her in the action (a transcript of the judgment was not obtained because of the cost). That summary states:

“Judgement in case of Marion O’Regan Versus Bedford Hospital

Plaintiff was a Senior Staff Nurse and worked in Godber ward in Bedford Hospital. During her work she suffered injury to her neck and back. It’s accepted by Defendants that damage and injury were caused by breaches of duty towards her. As a result claimant has had to give up nursing and now attending college with a view to becoming a counsellor.

Liability is admitted. In assessing damages I have to determine whether to take into account injury to lumbar and cervical spines or only cervical. On the balance of probability I find both injuries were so caused. No dispute on cervical injuries. Lumbar less serious injury. Initially caused in 1994, recurred 1997 and troubles her still. So far as cervical spine concerned, in due course problem treated on 27.5.97 by fusion and discectomy. Still has scar from that and pain and needles etc. by the end of college day by 2pm suffering pain, [sic] controlled by pain killers, Diclofenic.”

There follows quotations from both Medical reports and the Judge goes on to say:

“Both Harris and Howse take view definite possibility of further deterioration [sic]. She has had to give up nursing and take up counselling course. She claims substantial financial loss as result.

Heads of Damage

General

1. Take account of both upper and lower back pain.

2. Financial loss to date.

3. Loss to end of course.

4. Further loss of earnings after end of course.

Essentially claimant asserting could only work part time and Defendant arguing she would in a few years be earning as much as she would as a nurse.

I take the view that it is unlikely will earn as much as a counsellor as would have nursing. I think medical factors will preclude full time work. Even if only 20 hours of counselling I take the view that that could take a great deal of sitting around. I don’t think it would be practible [sic] to work full time.”

10. By way of an Order made on 6 December 1999 and drawn 16 December 1999, the Employer was ordered to pay Miss O’Regan the sum of £167,521.35.

11. Miss O’Regan then decided to apply for PIB under the Scheme, her application being considered by NHS Pensions on a total of six occasions before she complained to me.

12. Miss O’Regan completed an application form for PIB on 21 January 2000. Part 6 asks the applicant whether a claim has been made to the Criminal Injuries Compensation Authority. Miss O’Regan ticked the box to say that it had not. The application form also requested the applicant to inform NHS Pensions if a claim for damages or criminal injuries is made at a later date.

13. NHS Pensions states that, when reaching this decision, it considered the following evidence:

• Accident Report Forms; Sick Records; Letters dated 3 June 1996, 3 April 1997, 19 August 1997, 4 September 1998 and 25 June 1999 from her GP Dr Jackson;

• Papers dated 15 October 1997 and 1 July 1999 relating to a claim for Disablement Benefit;

• Occupational Health Notes from 3 March 1994 to 11 May 1999;

• Reports from Consultant Rheumatologist Dr Hawkes dated 12 May 1994, 16 May 1994, 8 July 1996, 19 August 1996, 7 April 1997 and 23 June 1997;

• Reports from Specialist Neurosurgical Registrars Mr Peter Winfield dated 7 October 1997, Mr Vickneswan dated 21 December 1998 and Vijay Kumar dated 16 April 1999 and Visiting Specialist Registrar in Neurosurgery, Mr Sheridan dated 20 April 1998;

• Reports from Consultant Neurosurgeon Robert Macfarlane dated 23 March 1998, 9 September 1998 and 22 February 1999;

• Medico-Legal Report from Consultant Orthopaedic Surgeon Mr Harris dated 3 March 1999;

• Report from Consultant Neurologist Mr Scolding dated 8 July 1999 and locum Consultant Neurologist Gillian Hall dated 31 January 2000;

• Reports from Locum Occupational Health Physicians Dr Mitchell dated 18 July 1996, 4 September 1996, 11 November 1996, 16 March 1998, 10 June 1998, from Dr White dated 2 June 1998 and from Head Occupational Therapist Vivien Kilgour dated 15 July 1998;

14. Relevant extracts from these reports can be seen at Appendix 1.

15. NHS Pensions issued its first decision to Miss O’Regan on 7 December 2000:

“Our medical advisers have considered all the available medical evidence; however, they are unable to recommend that your condition is wholly or mainly attributable to your NHS employment.

In explaining his decision our adviser has stated that as the onset of pain on 30 May 1996 was not due to a specific injury and the Consultant Rheumatologist’s letter of 8 July 1996 refer to x-rays taken of the cervical spine on 1 May 1996 which showed moderate disc degenerative changes at C/6 level. He is therefore satisfied, from the available medical evidence, that the neck condition represents a constitutional degenerative process which would have been aggravated, but not caused by, NHS employment. He could not, therefore, advise entitlement to Permanent Injury Benefits in respect of your neck condition.

In regards to the injury you sustained on 5 May 1994 our adviser stated “As you are now aware, The Faculty of Occupational Medicine has recently published Guidelines for the Management of Low Back Pain at Work Evidence Review and Recommendations. In the review the authors have noted:

“Physical stressors may overload certain structures in individual cases but, in general, there is little evidence that physical loading in modern work causes permanent damage. Whether low back symptoms are attributable to work are reported as injuries, lead to health care seeking and/or result in time off work depends on complex individual psychosocial and work organisational factors. People with physically or psychologically demanding jobs may have more difficulty working when they have low back pain and so lose more time from work, but that can be the effect rather than the cause of the low back pain.”

As a result of the above comments by The Faculty of Occupational Medicine our adviser has stated “In the light of the new review of low back pain and the link to occupation, it is no longer possible to conclude that the claimant’s recurrent low back pain is wholly or mainly attributable to NHS employment.”

16. Miss O’Regan appealed under Stage One of the Scheme’s internal dispute resolution (IDR) procedures.

17. NHS Pensions states that on reconsideration it reviewed the evidence listed at paragraph 12 and in addition it considered a report from Consultant Orthopaedic Surgeon Mr A J Howse dated 3 December 1997 which reads:

“Opinion

This patient was subjected to recurrent strains of her spine in both cervical and lumbar regions associated with lifting at work as a nurse. The mechanical problems were compounded by her height discrepancy compared with her colleagues. As Dr J G Hawkes, the Consultant Rheumatologist in Bedford, pointed out in a letter to the general practitioner on 12.5.94, she was usually paired with nurses who were very much taller than she is which resulted in increased difficulties when lifting, which he described as: “…a certain inevitability of her musculoskeletal system being strained.” These lifting problems undoubtedly long pre dated the onset of her original symptoms in February 1994 and were probably responsible for rapidly increasing degenerative disc disease. These ongoing strains associated with lifting finally resulted in a disc prolapse at C5/6 with some compression of her spinal cord. This required a discectomy and a C5/6 cervical fusion. She has however been left with degenerative changes at levels above and below.

There can be no doubt that the very poor handling procedures relating to lifting and transferring patients were responsible for the rapidly progressive disc degeneration and eventual disc prolapse.

Prognosis

The patient has been left with a permanently vulnerable neck. Disc degeneration is essentially a progressive condition and it is almost inevitable that she will experience symptoms in the future. I do not think that she should ever return to an occupation requiring patient handling. She will certainly be fit to carry out administrative nursing duties or, as suggested by Dr Hawkes, training to become a nurse tutor. On the open market she would have to avoid any type of work which required any heavy lifting.

Although degenerative disc disease is very common in all members of the population and is progressive, very few become significantly incapacitated. It is most unusual for a patient of Miss O’Regan’s age to experience degenerative changes and a cervical disc prolapse sufficiently severe to produce cord compression without some very significant contributory factor.”

18. NHS Pensions issued its response to Miss O’Regan on 8 December 2001:

“The decision

Having considered all the available evidence I must inform you that the Agency upholds its original decision that your condition is not wholly or mainly attributable to NHS employment.

Reason for the decision

My examination of your appeal has led me to thoroughly review your case papers. I have looked for evidence of incorrect due process and I have found none. I have also carefully considered the contents of the appeal letter. I have also noted the report by Mr Harris.

Our medical advisers feel that the findings of Mr Harris are not sustainable for the following reasons:

Neck condition

You had no pain on the day of the incident and when the neck pain developed two weeks later you attributed this to a lift you remembered. Mr Harris’ own assessment was that the neck changes were ‘probably developmental’ and that you had a ‘vulnerable cervical spine’.

Other episodes of neck pain have tended to have spontaneous onset and there is no particular reason to suppose that the initial onset was any different.

Back condition

Mr Harris’ opinion about the effect of work on your back due to your size, although understandable is not borne out by the experience of our medical advisors.

Mr Harris has stated that the cause of the pain in 1994 was probably no more than a soft tissue strain caused by lifting and is soon recovered.

Mr Howse has stated that you were constitutionally unsuited for nursing work. The very significant factor mentioned in Mr Howse’s report is an unusually strong constitutional tendency to degenerative disease.

The latest consensus of medical opinion regarding the link between occupation and low back pain was produced by the Faculty of Occupational Medicine. Their guidelines state that work is not a cause of chronic back pain or degenerative spinal disease and go on specifically to state that work may be a cause of short lived problems with back pain sufferers but not of chronic disability.

Our medical advisors do agree that degenerative conditions can often progress quite a long way without symptoms, and that injuries often turn asymptomatic conditions into symptomatic ones, but this case does not necessarily make the trigger the sole or main cause of incapacity. Whatever effect the trigger event has, the outcome of the incident is caused by the combination of the degenerative disease and the event. Unless the event is a fairly catastrophic one the medical advisors do not feel that the trigger event can reasonably be given the major role of the outcome.”

19. Miss O’Regan appealed under Stage Two of the Scheme’s IDR procedures. She submitted a further report by Dr Howse, commissioned by her union representative who was acting on her behalf in her injury benefit application. Mr Howse’s report dated 23 July 2002 reads:

“Opinion

Miss O’Regan is suffering from spinal degenerative changes. Her work activities – mainly inappropriate heavy lifting, caused a severe exacerbation of the spinal degenerative changes producing brachalgia (pain down the arm) necessitating a cervical fusion operation, which was carried out in 1997 by the

consultant neurosurgeon at Addenbrooke’s Hospital. Miss O’Regan continues to suffer from symptoms associated with the degenerative changes which are themselves somewhat aggravated by the stiff portion in the neck produced by the fusion. I would consider that she will continue to experience spinal symptoms in both the neck and lumbar areas. Ongoing symptoms are as described above.

I think it would be most inadvisable for Miss O’Regan to even attempt to return to any active nursing post. I think that she is fit, and will remain fit, to return to light semi-sedentary tasks on a part time basis, probably up to working half days.

With regard to eligibility for permanent injury benefit payments: A) She has been involved in a situation at work which severely aggravated her spinal degenerative changes and brought about the necessity for a spinal fusion. B) As a result of her spinal condition she had to leave her employment and was only able to manage alternate work for a very limited number of hours. C) I think she has a permanent loss of earning ability.

In summary, I think that Miss O’Regan’s case falls within the criteria of eligibility for NHS Injury Benefits.”

20. NHS Pensions states that it considered Mr Howse’s report and reviewed all the evidence it had seen when originally considering Miss O’Regan’s application in December 2000 and at Stage 1 of the Scheme’s IDR procedures in December 2001. On 7 November 2002, NHS Pensions wrote to Miss O’Regan with its decision:

“The Scheme’s Medical Adviser has advised that all information available has been considered with regard to application for Permanent Injury Benefit. This includes a report from Mr A J Howse, Consultant Orthopaedic Surgeon dated 23 July 2002. As Mr Howse states ‘degenerative disc disease is very common in all members of the population and is progressive.’ There is a time delay from the original index event on 5 May 1994 to when she experienced neck problems on 30 May 1996. It is felt that whatever occupation she has been in there would have eventually been the same spinal problems which she is currently experiencing. The consensus of medical opinion is that manual handling has little if any, effect on the progression of degenerative spinal disease. It is felt that none of the injury events would have caused permanent damage to a healthy spine. It is the constitutional degenerative disease of the spine which is the major factor in her current incapacity. This cannot be wholly or mainly attributable to her NHS employment. As such the criteria for Permanent Injury Benefit have not been met.”

21. Miss O’Regan’s union representative again sought fresh medical evidence on her behalf and a report was prepared by Mr Harris on 4 November 2003 and submitted to NHS Pensions. Mr Harris’ report reads:

“OPINION

I have reviewed the opinion I gave in March 1999. This opinion was principally based on the cervical disc prolapse, degenerative disc disease and the need for cervical fusion operation in May 1997….

CLAIM FOR PERSONAL INJURY BENEFIT PAYMENTS

In the light of the above and my previous opinion, the current position is as follows:

1. Her medical condition currently is caused by degenerative disc disease in the cervical spine at several levels and the effect of the operative fusion at C5/6 segment; continued intermittent neck pain, left upper limb pain and tingling, constant low back pain due to degenerative disc disease.

2. I do not anticipate spontaneous improvement in the future.

3. Function is affected as follows – very restricted in lifting and carrying, aggravation of back pain if sits or stands for long periods and also when bending. The neck pain is aggravated by certain postures, for example when sitting and looking down, and by driving and turning the neck suddenly and at night if sleeps in an awkward position.

Functional disturbance will continue indefinitely in the future.

4. She is persistently unfit to return to former duties or any full time nursing administrative duties. She could possibly undertake part time administration (18 hours a week).

Her medical condition (cervical and lumbar spine problems (i.e. have been brought about by repetitive strains during the course of her nursing duties. In other words, her condition is attributable to NHS employment over a period of time and is not the result of a single traumatic incident.)

During the course of her employment as a nurse from about 1996, she lost a lot of time from work. She had to change the nature of her job, and there were periods when she had to work reduced hours, and eventually had to give up her nursing career.

There can be no doubt that she suffered a permanent loss of earning capacity that is her ability to work full time. She is probably capable of working in a sedentary capacity for about 18 hours a week.”

22. NHS Pensions sought advice from its Senior Medical Adviser, who reported:

“Marion O’Regan has applied for PIB on the grounds of ‘back injury’ although the evidence principally relates to a neck condition. The RCN have written on her behalf to submit a further appeal with new evidence. This is a further report from Mr N H Harris (4 November 2003) whose initial report was on 3 March 1999. Mr Harris provides an update of her condition and concludes that his previous opinion remains relevant. That was, in effect, that the disc derangement in the cervical spine was due to her occupation as a nurse, in particular due to the lifting she undertook. In relation to the lumbar spine he comments this was clinically normal and he could not discuss causation.

Other significant evidence is a report by Mr A J Howse 3 December 1997 with an updated report on 23 July 2002. His opinion was that spinal degenerative changes were exacerbated by her work activities, mainly heavy lifting. In giving his opinion he does not make specific comment about the lumbar spine except to predict ongoing pain in the area. (His report indicates no significant abnormalities in his examination of the lumbar spine or legs).

In relation to the lumbar spine an MRI scan in December 1998 showed no disc or nerve root abnormalities (Mr McFarlane Consultant Neurosurgeon 22/2/99).

There is no evidence of a significant traumatic incident causing spinal injury. There is no evidence of a significant lumbar spine condition. Marion O’Regan’s neck symptoms appear to have come on spontaneously. There is well documented evidence of relatively severe cervical spondylosis and cervical disc degeneration. The case put forward for PIB is that her occupation (including the lifting requirement) has caused not only disc prolapse (subsequently requiring cervical fusion surgery and causing long term disability) but also caused the degenerative change too.

Disc prolapse in the absence of severe trauma, occurs in an already degenerative disc. The latter is a constitutional condition which has manifested itself at an unusually early age in Miss O’Regan. A review of the evidence base shows that the physical demands of work play only a minor role in the development of disc disease. (“Occupational Health Guidelines for the Management of Low Back Pain at Work- March 2000. Faculty of Occupational Medicine). Therefore it is not accepted that her job as a nurse caused her underlying degenerative cervical spinal condition. This was a constitutional condition. If it were not for this underlying constitutional degenerative spinal disease she would not have suffered a disc prolapse. In summary, it is not accepted that her employment was wholly or mainly responsible for her neck condition or alleged ‘back injury.’ Previous adjudications were sound and I recommend rejection of her appeal.”

23. On 14 January 2004 NHS Pensions issued its fourth decision in respect of Miss O’Regan’s third appeal:

“My Decision

In my role as the Agency’s Senior Appeals Manager I have undertaken, together with the Scheme’s Senior Medical Adviser, a very full and thorough review of your application, taking into account all the available medical evidence, including reports provided by Mr Howse, Mr Harris and Mr Macfarlane.

I am writing to advise you that the Scheme’s Managers are unable to accept that your condition is wholly or mainly attributable to your NHS duties. Your appeal is therefore unsuccessful.

Having carefully reviewed the comments of the Senior Medical Adviser, I have no reason to disagree with the view he has expressed and I therefore endorse the conclusion that entitlement to PIB is not established.”

24. Miss O’Regan sought assistance from the Pensions Advisory Service (TPAS) who then sought to have Miss O’Regan’s application reviewed. NHS Pensions agreed to reconsider Miss O’Regan’s application. As part of their reconsideration, Miss O’Regan was seen by Consultant Orthopaedic Surgeon Mr Achan; his report and the existing evidence, was reviewed by NHS Pensions’ appointed medical advisers. Mr Achan’s report dated 10 June 2005 stated:

““1.2 Summary of Instruction

(1) …

(2) This Report is being prepared with reference to her interview and notes taken at the time of the appointment and information contained concerning the incident, subsequent treatment, present condition and capabilities as given to me by the patient, GP notes and medical reports by Mr A G J Howse dated 23-07-2002 and Mr Harris dated 04-11-2003 and 03-03-1999.

2.0 INCIDENT DETAILS

(1) …

(2) …On 30 April 1996 she felt severe pain on the right side of her neck radiating to the right arm and right wrist with pins and needles in the right hand. She was seen at the A & E department. X-rays of the cervical spine were done. It was reported as normal. She was back at work but continued to be in pain from 2 May 1996. On 17th of May she saw her GP with complaint of persisting neck pain. She was advised physiotherapy. The pain got worse and she was off work from 28 May 1996.

On 30 May she was referred to Dr Howse, the Consultant Rheumatologist. She was seen by him on 8 July 1996. His notes state that she had been off work for the past five weeks. On 7 August 1996, she had an MRI scan. It showed a degree of Spinal Stenosis of the cervical spine at the level of C6 and narrowing of the nerve root foramina. A posterior prolapse was noted C5-6 level and mild narrowing of C6-7 disc spaces were noted….

….An MRI done on 1 May 1997 revealed spinal cord compression at C5-6 and narrowing of the exit foramina with lesser changes at C4-5….

…Seen again on 20-04-1998, she had no residual pain in her right arm. She had occasional neck pain and she was advised to return to full time nursing. In May 1998, she returned to work as Team Leader at the rehabilitation unit for the elderly. …Her Team Leader job was mainly administrative and did not involve any lifting.

8. PROGNOSIS

1) ….

2) Cervical disc disease in her case has been at multiple levels. It was not caused by a single traumatic episode. At operation, she had degenerative disc material removed. The MRI prior to surgery also showed evidence of Canal Stenosis. MRI evidence of Canal Stenosis is usually congenital or secondary to degenerative changes and is responsible for the symptoms produced in her case. Subsequently following surgery she had periods off work. However, her symptoms persisted and she developed lower backache. This is known to occur in patients with generalised degenerative disease of the spine. Once the cervical lesions have been attended, they do usually complain of the lumbar region. She has been followed up and further MRIs have been done, which showed degenerative changes but not sufficiently bad enough to warrant surgery. In spite of her being off work, her symptoms have persisted. At the time of examination, her continuing symptoms are evidence of irritation of nerve roots. Parasthesia of the tips of fingers and tips of toes are usually in keeping with irritation of nerve roots. When the nerve roots are inflamed, they produce pain on irritation.

3) Review of literature on the causation of cervical spine disc degeneration does not show that it is a result of repeated manual handling of patients. In view of the evidence of Canal Stenosis and multiple levels of disc disease this is a part of a systemic involvement of her cervical and lumbar spine. No definite episode of trauma has been shown to precipitate the same.

9.0 OPINION

1) Marion O’Regan has symptoms of cervical spine disc disease since 1994. This was initially treated non-operatively and she continued to work symptom free till 1996, when symptoms returned. She underwent surgical operation and fusion of her C5/6 vertebrae for Radiculopathy. Following surgery she started symptoms in her lower back, which is known to happen in patients who have generalised spinal disease both the upper [sic]and lower vertebrae.

2) She remained off work following surgery. She attempted to return to work for reduced periods at work. It resulted in recurrence of symptoms. She was medically retired in 1999, as she was incapable of performing her regular duties. Subsequently, she had two children in 2000 and 2004. She also had a whiplash injury from which she recovered satisfactorily. The history of the fall down the stairs, which affected her neck, also resolved satisfactorily. These traumatic episodes have left her with no disability.

3) Her persisting symptoms are therefore more likely than not a result of degenerative disc disease. This is multilevel in character. MRI has also shown Cervical Canal Stenosis, which contributes to the myelopathy that has developed. The persistence of symptoms following surgery and the absence of any trauma for manual handling in the period since, makes it, more likely than not, to confirm lesion as a degenerative disc disease. However, manual handling during the period between 1994 and 1996 could have contributed to the progression of degenerative changes.

On balance of probabilities, it accelerated the onset of degenerative changes of the cervical spine by a period of five years.”

25. The Medical Adviser’s report to NHS Pensions stated:

“…Taking it along with the existing evidence on file, Mr Achan’s report states that she ‘sustained repeated trauma as a result of her nursing duties.’ She developed degenerative disc disease in 1997, with cervical disc disease at multiple levels. It was not caused by a single traumatic event. At operation she had degenerative disc material removed. The MRI prior to surgery also showed evidence of canal Stenosis. MRI evidence of cervical stenosis is usually congenital or secondary to degenerative changes and is responsible for the symptoms produced in her case. Subsequently, following surgery she had periods off work. However, her symptoms persisted and she developed lower backache. This is known to occur in patients with degenerative disease of the spine.’ ‘Review of literature on the causation of cervical spine disc degeneration does not show that it is a result of repeated manual handling of patients. In view of the evidence of canal Stenosis and multiple levels of disc disease this is part of a systemic involvement of her cervical and lumbar spine. No definite episode of trauma had been shown to precipitate the same.’ The word systemic is similar to constitutional and it refers to a condition that derives from within the person and not from an external cause.

However, Mr Achan goes on to state that ‘manual handling during the period between 1994 and 1996 could have contributed to the progression of degenerative changes. On balance of probabilities, it accelerated the onset of degenerative changes of the cervical spine by a period of 5 years”.

Mr Achan’s opinion has some similarity with the report of Mr Howse of 3 December 1997 who refers to ‘These lifting problems undoubtedly long pre-dated the onset of her original symptoms in February 1994 and were probably responsible for rapidly increasing degenerative disc disease.’ In terms of his more recent report, Mr Howse stated on 23 July 2002 that ‘She has been involved in a situation at work which severely aggravated her spinal degenerative changes and brought about the necessity for spinal fusion.’ What Mr Achan has done is to refer to this rapid increase in degeneration as acceleration and has placed a time scale of 5 years on it. The concept of acceleration is well known to specialists and lawyers in this type of case. It means that were it not for an accident or working conditions, a degenerative process of the spine would not have begun until later. Mr Achan assesses that she began to develop degenerative disease of her cervical spine in 1997. Were it not for the strains she experienced at work he assesses that this degeneration would not have developed till 5 years later namely 2002. The acceleration argument also includes the aspect that a patient would have developed the condition and symptoms from it even if the work accident or conditions had not occurred, but at a later date.

Accepting Mr Achan’s opinion this means that from the period 1997 till 2002, the period of the acceleration, her condition and symptoms were mainly attributable to her NHS duties. However, after 2002 she would have become symptomatic anyway, and thus attribution from then on becomes mainly attributable to the systemic/constitutional degenerative condition of her spine which is not of occupational origin. Thus causation is accepted for that period, but is not permanent. In the absence of any permanence of attribution from her NHS duties from 2002 till age 65 years, the period to which permanent loss of earnings ability is to be assessed, there can be no permanent loss of earnings ability.”

26. In its decision letter addressed to Miss O’Regan and dated 6 July 2005 NHS Pensions stated:

“My Decision

In my role as the Agency’s Appeals Manager I have undertaken, together with the Scheme’s Medical Adviser, a very full and thorough review of your application, taking into account all the available information, including the latest independent expert report from Mr N V Achan FRCS. Consultant Orthopaedic Surgeon dated 10 June 2005.

Whilst I appreciate this will be a disappointing outcome I have to advise you that the Scheme’s Managers remain unable to accept your application.

Reasons for my decision

The Medical Adviser has commented,

‘…Taking it along with the existing evidence on file, Mr Achan’s report states that she ‘sustained repeated trauma as a result of her nursing duties.’ She developed degenerative disc disease in 1997, with cervical disc disease at multiple levels. ‘It was not caused by a single traumatic event. At operation she had degenerative material removed. The MRI prior to surgery also showed evidence of canal Stenosis. MRI evidence of canal stenosis is usually congenital or secondary to degenerative changes and is responsible for the symptoms produced in her case. Subsequently, following surgery she had periods off work. However, her symptoms persisted and she developed lower backache. This is known to occur in patients with degenerative diseased of the spine.’ ‘Review of literature on the causation of cervical spine disc degeneration does not show that it is a result of repeated manual handling of patients. In view of the evidence of canal Stenosis and multiple levels of disc disease this is part of systemic involvement of her cervical and lumbar spine. No definite episode of trauma has been shown to precipitate the same.’ The word systemic is similar to constitutional and it refers to a condition that derives from within the person and not from an external cause.

However, Mr Achan goes on to state that ‘manual handling during the period between 1994 and 1996 could have contributed to the progression of degenerative changes. On balance of probabilities, it accelerated the onset of degenerative changes of the cervical spine by a period of 5 years.’

Mr Achan’s opinion has some similarity with the report of Mr Howse of 03-12-97 who refers to ‘These lifting problems undoubtedly long pre-dated the onset of her original symptoms in February 1994 and were probably responsible for rapidly increasing degenerative disc disease.’ In terms of his more recent report, Mr Howse stated on 23-07-02 that ‘She has been involved in a situation at work which severely aggravated her spinal degenerative changes and brought about the necessity of the spinal fusion.’ What Mr Achan has done is to refer to this rapid increase in degeneration as acceleration and has placed a timescale of 5 years on it. The concept of acceleration is well known to specialists and lawyers in this type of case. It means that were it not for an accident or working conditions, degenerative process of the spine would not have begun until later. Mr Achan assesses that she began to develop degenerative disease of her cervical spine in 1997. Were it not for the strains she experienced at work he assesses that this degeneration would not have developed till 5 years later namely 2002. The acceleration argument also includes the aspect that a patient would have developed the condition and symptoms from it even if the work accident or conditions had not occurred, but at a later date.

Accepting Mr Achan’s opinion this means that from the period of 1997 till 2002, the period of the acceleration, her condition and symptoms were mainly attributable to her NHS duties. However after 2002 she would have become symptomatic anyway, and thus attribution from then on becomes mainly attributable to the systemic/constitutional degenerative condition of her spine which is not of occupational origin. Thus causation is accepted for that period, but is not permanent. In the absence of any permanence of attribution from her NHS duties from 2002 till age 65 years, the period to which permanent loss of earnings ability is to be assessed, there can be no permanent loss of earnings ability.”

27. Miss O’Regan advised the Pensions Advisory Service (TPAS) that she was reluctant to accept NHS Pensions’ decision. She said:

“Many thanks for your recent letter. As discussed in the following telephone conversation I am reluctant to accept the agency’s decision for reasons I will clearly set out below. I am afraid time and thought and review of all the evidence have only increased that reluctance. I take your point on additional medical evidence but feel there is a lot on record already. All of it agrees that there is disability which is likely to increase and that occupation has had a role in causation. The degree of occupational causation appears to be the issue. My opinion is that this case needs to be examined in full context of all information available of which the medical evidence is a part.

1. There is evidence of traumatic incidents recorded on accident forms and as a consequence of this temporary injury allowance was paid.

2. A legal case was fought and won in a court of law on the grounds of cumulative strain in December 1999.

3. Liability for unsafe working practices damage and injury, breaches of duty by the hospital was admitted.

4. A lifting experts report 1998 on working practices and workloads at that time concludes; a. Unsafe system of work

b. Unsafe lifts used

c. No risk assessment

d. Patients were lifted and were too heavy for normal lifting

e. I was lifting 5-6 tonnes per night shift. This does not include effect of the multiple effect.

5. None of this was contested or argued. Liability was admitted. None of the medical evidence had sight of this report and therefore came to their conclusion without the information of the amount of lifting occurring and under the circumstances in which it occurred. I would like this report to be considered and responded to by the pensions authority and the effect of lifting such loads included in their conclusions. This was not normal working conditions.

6. There is no evidence anywhere of disease prior to episodes described. There is no evidence of any other disease such as Rheumatoid which might explain such degeneration. MRI lumbar spine was normal.

7. Demands of work were not normal; this was admitted so therefore must be considered also.

8. Any acceleration calculations need to include 1989 on as worked for them in abnormal and unsafe working conditions from that time.

9. Causation is permanent and medical evidence supports this.

10. Effects of lifting 5-6 tonnes per night shift needs to be calculated including multiplier effect.”

28. The TPAS adviser forwarded her comments to NHS Pensions, who agreed to review Miss O’Regan’s case once again. Miss O’Regan now submitted a lifting report from Danielle Holmes dated 24 March 1998 and a copy of the Court Order.

29. The Scheme’s Medical Adviser reported to NHS Pensions and commented specifically on the lifting report that had been prepared by Danielle Holmes:

“The ‘lifting report’ is an expert report about her system of work as it related to her nursing patient handling duties, and it reached the conclusion that the system of work was unsafe, that she was using unsafe techniques to carry out a larger number of manual lifts. Whilst she states that it is reasonable to assume that so many unsafe acts are likely to have done damage, she was not an expert to ‘show the statistical or biomechanical relationship between heavy lifting and subsequent injuries.’ Thus this report does not have a direct bearing on attribution.”

And the Court Judgment summary of January 2000:

“In the judgment summary of January 2000 reference is made to injury to her neck and back and that it was accepted by the dependants that ‘damage and injury were caused by breaches of duty towards her.’ The judge found that ‘both injuries were so caused. No dispute on cervical injuries. Lumbar less serious injury. Initially caused in 1994, recurred in 1997 and troubles her still. So far as cervical spine concerned, in due course problem treated on 27-05-97 by fusion and discectomy.’ The judge does not refer to degeneration in her neck and the causation of that.”

And Mr Harris’ report dated 3 March 1999:

“It does predate the judge’s determination of 2000. In respect of his knowledge of lifting conditions Mr Harris states, ‘Whether or not the amount of lifting and the way it was done was reasonable is not something I can comment on.’ Despite this he did offer the opinion that, ‘The amount of lifting and the mechanism used for lifting will have paid a paramount role in causation.’ These two quotations do not appear to sit easily with each other.”

And Mr Harris’ report dated 4 November 2003:

“In his further report of 04-11-03 Mr Harris confirmed his original opinion, but did not refer to any awareness of the ‘lifting report’ nor of the 2000 judgment, and did not indicate any additional awareness of the amount and method of lifting she had engaged in. Had he seen the ‘lifting report’ he may have been able to comment that the amount and way of lifting for her was unreasonable. However, he has clearly included lifting difficulties in his assessment of causation.”

The Medical Adviser then went on to say:

“The report of Mr Howse is dated 03-12-97, predating the lifting report. However, he refers to ‘consistently heavy lifting,’ and he refers to her being shorter than nursing colleagues, and that in lifting with these taller colleagues ‘there is a certain inevitability of her musculoskeletal system being strained.’ He also states, ‘There can be no doubt that the very poor handling procedures relating to lifting and transferring patients were responsible for the rapidly progressive disc degeneration and eventual disc prolapse.’ In the last sentence of his report he refers to it being very unusual for a patient of her age to experience degenerative changes and a cervical disc prolapse sufficiently severe to produce cord compression without some very significant contributory factor. He does not state what this factor is. By the time of his 23-07-2002 report, Mr Howse would have had the opportunity to comment on the lifting report and the judge’s determination had he been aware of it. He does not indicate any awareness of these two items of evidence but states she is, suffering from spinal degenerative changes. Her work activities mainly inappropriate heavy lifting, caused a severe exacerbation of spinal degenerative changes producing brachalgia necessitating a cervical fusion operation.’ Further on he refers to a ‘situation at work which severely aggravated her spinal degenerative changes and brought about the necessity for a spinal fusion.’”

30. The Medical Adviser also re-affirmed his comments on Mr Achan’s report of 4 May 2005 repeating that, although causation was accepted for the period 1997 to 2002, it was not permanent and that, in the absence of any permanence of attribution from her NHS duties from 2002 till age 65 years, the period to which permanent loss of earnings ability is to be assessed, there could be no permanent loss of earnings ability. He also explored whether Mr Achan would have reached a different conclusion had he seen the ‘lifting report’:

“This is unclear, but even if he was influenced by the two items of additional evidence to extend the acceleration period to 10 or 15 years, this would still leave a considerable number of years before age 65 when her symptoms and restrictions would only be attributable to her underlying degenerative condition. Acceleration is acknowledged by all experts as an inexact assessment, but this applicant is so young that even allowing for this as well as any putative influence from the lifting report and the judge’s summary, the outcome in terms of PLOEA would be the same. In summary, ‘the lifting report’ was only fresh evidence in relation to Mr Howse’s first report of 1997, and the judge’s summary was only fresh evidence in relation to it and the first report of Mr Harris in 1999. Both of these experts were asked to supply further reports, where, risibly, they could have been given sight of these items. However, as the experts were all aware of her heavy lifting at work, at least to some extent, it seems unlikely that these items would have led to very different opinions.”

31. NHS Pensions then advised Miss O’Regan on 8 February 2006:

“In summary, the medical adviser has concluded that you are suffering from a pre-existing degenerative condition of the spine whose symptoms have been accelerated [brought forward] by your NHS duties, but that without those duties you would most likely have become symptomatic from your degenerative condition anyway, well before normal retirement age. It cannot therefore be said that you are suffering from a condition causing a permanent loss of earning ability that is wholly or mainly attributable to your NHS employment.”

SUBMISSIONS FROM MISS O’REGAN

32. The initial rejection was on the grounds that lifting did not cause her injury and yet 85% of nurses at retirement age have back problems brought about by the heavy lifting duties of their employment.

33. There is no medical evidence of disease prior to the injuries sustained and medicals were conducted prior to every employment and she was declared fit.

34. Miss O’Regan questions the existence of a pre-existing condition when its name and treatment necessary have not been disclosed. An MRI scan of her spine was carried out in 1999 which revealed her thoracic and lower spine to be normal. She was told at that time that her neck had suffered a soft tissue strain that would resolve. She believes that the MRI scan would have identified a generalised disc disease.

35. She believes that she does suffer from wear and tear but that this is directly as a result of lifting up to five tons each work shift. She does not dispute that there is evidence of soft tissue strain to the lower spine and disc derangement to the neck but says that these can themselves cause cervical canal stenosis.

36. She states that both Mr Harris and Mr Howse concluded that there was no underlying condition and is therefore concerned at the conclusions drawn by Mr Achan in light of the available medical evidence.

37. Her injuries led to her being permanently retired on the grounds of ill health. In 1999, with the help of the RCN, she sued the Employer for negligence. The employer admitted liability and it is important to note that this legal case was fought and won on the grounds of cumulative strain and not any single injury or incident.

SUBMISSIONS FROM NHS PENSIONS

38. NHS Pensions refutes the allegation of maladministration in respect of its decisions surrounding Miss O’Regan’s application for PIB.

39. The Regulations broadly speaking provide income protection (in a range from 11% up to a maximum 85%) for NHS employees who suffer a permanent reduction in their earnings or earnings ability as the result of an illness or injury that is wholly or mainly attributable to the duties of the NHS employment.

40. Permanent in this context means to age 65. For the purpose of measuring “wholly or mainly attributable” the Scheme uses the civil burden of proof of “on balance of probability”. That is to say the Scheme’s managers will consider whether ‘on balance of probability’ the cause of illness or injury (the condition) is attributable to the applicant’s NHS work. In order to make the assessment NHS Pensions in conjunction with its medical advisers, is required to weigh balanced information/evidence.

41. NHS Pensions accepts that Miss O’Regan is permanently incapable of carrying out her former NHS duties as a staff nurse due to disability involving her back. Miss O’Regan was awarded ill health retirement benefits (with enhancement) under Regulation E2 of the Regulations with effect from 19 August 1999 because of this.

42. NHS Pensions also accepts that various incidents have occurred (including recorded incidents on 5 May 1994 and 30 May 1996) when Miss O’Regan suffered injury to her neck, shoulder and back during the course of her employment.

43. NHS Pensions does not accept that Miss O’Regan’s ongoing back problems are wholly or mainly attributable to any of those incidents or even the accumulative affect of those incidents because there is evidence of degenerative change.

44. Rather, NHS Pensions accepts its medical adviser’s view that neither the nature of her work, or the known work injuries, has caused the onset of her back condition; rather those incidents might only have brought forward the onset of her symptoms by between five and 15 years.

45. It is therefore her underlying condition that is the primary cause of her symptoms, and those symptoms would have progressed to the same state before age 65 in any event, meaning that entitlement to PIB under the Regulations does not arise.

CONCLUSIONS

46. The relevant Regulation applies where the injury sustained is wholly or mainly attributable to NHS employment. Determining whether this is so is a question of fact for NHS Pensions. If the attribution test is satisfied, NHS Pensions must also reach a decision on whether there has been a permanent reduction of earning ability of greater than 10%.

47. In reaching their decision, NHS Pensions must ask the right questions, construe the rules correctly and only take into account relevant matters. They should not come to a perverse decision, i.e. a decision which no other reasonable decision maker faced with the same evidence would come to.

48. Miss O’Regan has displayed symptoms relating to a spinal condition that has affected both her neck and lower back. She claims that symptoms in both areas have been brought about by her work. Her case has been complicated to some extent because of her small stature and because she has displayed these symptoms from a very early age, she is now only 40.

49. There is no dispute that she suffers from a degenerative condition or that she has suffered a prolapsed disc. The task faced by NHS Pensions has been to identify whether the degenerative condition is systemic or wholly or mainly work related and whether the prolapsed disc has occurred naturally because of an underlying systemic condition or has been the result of a specific traumatic work related incident. Miss O’Regan’s application has been considered six times.

50. In its first decision letter to Miss O’Regan NHS Pensions rejected her application. It stated that medical evidence supported the view that her neck condition was a result of a constitutional degenerative condition and the Faculty of Occupational Medicine had advised that there was little evidence that physical loading in modern work causes any permanent damage. I have commented elsewhere that I have reservations about occupational physicians relying without question on the assumptions made in that guidance.

51. NHS Pensions rejected Miss O’Regan’s application for a second time on 8 December 2001 on the basis that her incapacity was the result of a combination of a degenerative disease and trigger event. In reaching that decision it relied again on guidance provided by the Faculty of Occupational Medicine. Also, the Scheme’s Medical Adviser’s opinion that her neck condition was probably developmental, incidents of neck pain had been spontaneous and that Mr Howse had stated she displayed an unusually strong constitutional tendency to degenerative disease.

52. In fact, Mr Howse had concluded in his report of 3 December 1997 that ‘..There can be no doubt that the very poor handling procedures relating to lifting and transferring patients were responsible for the rapidly progressive disc degeneration and eventual disc prolapse..’ and ‘ it is most unusual for a patient of Miss O’Regan’s age to experience degenerative changes and a cervical disc prolapse sufficiently severe to produce cord compression without some very significant contributory factor.’

53. On the third occasion, NHS Pensions upheld its decision. This was on the basis once again of guidance contained in the Faculty of Occupational Medicine report and also that the Scheme’s Medical Adviser had stated that because of her degenerative disc disease, identified by Mr Howse in his report of 23 July 2002, whatever occupation she was in, she would eventually have the same spinal problems that she was then experiencing.

54. Mr Howse, in his report had actually stated ‘…Miss O’Regan is suffering from spinal degenerative changes. Her work activities - mainly inappropriate heavy lifting, caused a severe exacerbation of the spinal degenerative changes producing brachalgia…’ and ‘…She has been involved in a situation at work which severely aggravated her spinal degenerative changes and brought about the necessity for a spinal fusion…’ and ‘…As a result of her spinal condition she had to leave her employment and was only able to manage alternate work for a very limited number of hours..’ and ‘…I think she has a permanent loss of earning ability.’

55. When NHS Pensions considered her application for a fourth time in January 2004 it did so in light of Mr Harris’ report dated 4 November 2003. NHS Pensions rejected the application. The Senior Appeals Manager told Miss O’Regan that he had thoroughly reviewed the case with the Scheme’s Medical Adviser and had no reason to disagree with the Adviser’s opinion that her appeal should be rejected.

56. The Adviser had stated ‘There is no evidence of a significant traumatic incident causing spinal injury…’ and ‘There is no evidence of a significant lumbar spine condition…’ and ‘Disc prolapse in the absence of severe trauma, occurs in an already degenerative disc. The latter is a constitutional condition that has manifested itself at an unusually early age in Miss O’Regan…’ and ‘…it is not accepted that her job as a nurse caused her underlying degenerative spinal condition.’

57. It was not until her application was re-considered on 6 July 2005 when the Scheme’s Medical Advisers had the benefit of Mr Achan’s report of 11 June 2005. Mr Achan had identified that Miss O’Regan’s symptoms were more likely than not, the result of a generalised spinal disease of both the upper and lower vertebrae. Her degenerative disc disease was multi level in character and that she had Cervical Canal Stenosis, an abnormal narrowing of the canal, which had contributed to the myelopathy that had developed. However, he also concluded that changes that had occurred between 1994 and 1996 were the result of manual handling which had accelerated the onset of her condition by a period of five years.

58. The Scheme’s Medical Adviser, when advising NHS Pensions, advised that causation for the period 1997-2002 was accepted but that, in the absence of any ongoing attribution from her NHS duties from 2002 till age 65, there could be no permanent loss of earnings ability.

59. NHS Pensions told Miss O’Regan on 6 July 2005 that it had no reason to disagree with the opinion provided by the Medical Adviser that Miss O’Regan’s work had brought forward her lower back condition by five years but that by 2002 she would have become symptomatic anyway and attribution from that point stemmed from her constitutional degenerative condition. Consequently, although causation had been accepted between 1997 and 2002, there is no evidence to suggest any causal link from 2002 to her normal retirement age and therefore no permanent loss of earning ability.

60. Although I would comment that decisions reached prior to this one had been reached without the level of critical investigation I would expect, it would be difficult to be critical of the decision reached on this occasion. Mr Achan’s report had identified an underlying systemic degenerative condition which had been aggravated as a result of a disc prolapse that, although caused by a work related activity that resulted in bringing forward the severity of her condition by a period of 5 years, she would have reached that same point long before retirement anyway. In other words she has suffered an injury but it is not a qualifying injury.

61. Miss O’Regan contends that it is the degree of occupational causation that is the issue. In this context she cites the evidence considered as part of her successful claim against the Employer, where liability was admitted by them.

62. She states that an MRI scan in 1999, only two years after surgery in 1997, revealed her spine to be normal; that both Mr Harris and Mr Howse concluded she was not suffering from an underlying condition and that soft tissue strain and disc derangement to her neck could have caused the Cervical Stenosis. She is concerned at the conclusion reached by Dr Achan in light of the available medical evidence.

63. Mr Achan’s report was, however, prepared with the benefit of having carried out an examination. It also acknowledged MRI scans that had already been carried out, including one carried out in August 1996 that had revealed Miss O’Regan to be suffering from Spinal Stenosis of the cervical spine. He also acknowledged the reports by Mr Howse and Mr Harris mentioned by Miss O’Regan in her submissions.

64. Mr Achan stated Miss O’Regan’s cervical disc disease to be at multiple levels and that the persistence of symptoms, despite being off work, following surgery, was common with patients with a generalised disc disease of the spine. He discounted that cervical spine disc degeneration to be the result of repeated manual handling of patients as claimed by Miss O’Regan.

65. It is not, therefore, solely the Canal Stenosis, but this along with multiple levels of disc disease, that forms part of a systemic involvement of her cervical and lumbar spine that Dr Achan regarded as being the cause of her condition, and it is this fact that prevents her condition as qualifying her for an injury benefit award.

66. I am satisfied that NHS Pensions has properly considered the extent to which Miss O’Regan’s condition can be said to be wholly or mainly attributable to her work, and that the conclusion based on the vast quantity of medical opinion that there is a significant underlying condition which is constitutional cannot be said to be unreasonable.

67. The complaint is not upheld.

CHARLIE GORDON

Deputy Pensions Ombudsman

27 July 2007

APPENDIX

Medical evidence considered by NHS Pensions

Reports from Consultant Rheumatologist Dr Hawkes dated 12 May 1994:

“Thank you very much for referring this patient whom I saw today. She first had rheumatic problems of any consequence 2½ years ago, with bilateral Achilles tendonitis culminating in surgery done by Mr John Williams about a year ago. Before that she was severely disabled by the Achilles tendinitis with difficulty in weight bearing for long periods in spite of medication etc…

..Besides feeling very tired and worn out over the past week, she was concerned her musculoskeletal system had given her so much trouble over the past few years. No suggestion of Sjoren’s syndrome or Reynaud’s phenomenon, nor any eye or bowel inflammation, no mucosal membrane ulceration…

Treatment and Comment

She seems to be at the end of her tether so was quite prepared to come into the Manor Hospital for a few days so we can try and make a more thorough assessment. On balance I think the most likely diagnosis is slight but significant soft tissue injury rather than an early inflammatory polysynovitis, though one cannot completely rule this out in view of the F.H….”

dated 16 May 1994:

“Further to our telephone conversation this evening, Mrs Sear was reassessed. I was pleased to find her much improved with Voltarol Retard 100mg. nocte, Brufen 400 mg. mane, and mid-day p.c. X-rays of the low back display no abnormality. Blood test results are unremarkable, except for ESR of 22 mm/hr. CRP 10 mg./1…

…She is anxious to have further physiotherapy at S.W. from Mrs Smale, and has an appointment to see her in two weeks. It could well be Mrs Sear will need physiotherapy to enable her to cope with her job at South Wing. Her current plan is to discontinue this job at the end of September, and enter full time academic nursing training.” (sic)

dated 8 July 1996:

“…In so far as her current presentation is concerned it was noted that about 2 months ago she had an acute episode of neck and right arm pain extending as far as the elbow associated with intensely disagreeable parasthesiae in the right thumb, index and middle finger…

…The x rays cervical spine 1.5.96 were reviewed. They show moderate disc degenerative changes at C5/6 level. MRI cervical spine has been ordered.

Treatment and Comment: I think Marion Sear should remain off work for at least another month. Hopefully by then there will be a spontaneous recovery. However, I agree that she seems to have a significant mechanical internal derangement of the cervical spine and in all probability C6 nerve root compression. Understandably she is concerned about the job implications….

…By the same token she currently presents, I think she should at least try and get less physically demanding job than her current work on Godber, effectively full time night duty.”

dated 19 August 1996:

“I was pleased to find your patient, Marion O’Regan, who attended 12. 08. 96, was much improved. Furthermore, on this occasion, on repeated testing, her right supinates jerk would appear to have returned to normal. Accordingly, I think it highly improbable that she will need surgery. By the same token, especially in view of what has already transpired not only with her neck and arm but low back, I think it would be highly inadvisable for her to recommence full time nursing. However, she should be able to earn her livelihood doing a less physically demanding job….

…I can see no reason why she shouldn’t eventually make a satisfactory recovery with little risk of a recurrence provided she is able to lead a much less stressful existence as was the case when she was a nurse.”

dated 7 April 1997:

“Thank you for asking me to see Marion O’Regan and for your informative letter. In fact I assessed this young lady in a clinic recently at North Wing where she was the nurse in attendance. I concluded, at that time, that unless she made a fairly speedy recovery within a short period, a MRI of the cervical spine would be required. Accordingly in view of your observations, I have ordered this investigation.”

dated 23 June 1997:

“Marion O’Regan was strongly reassured that I thought her acute low back and intermittent right leg pain should resolve in due course, although it could well take several weeks if not longer. Also, I pointed out that, there did not seem to be any definite evidence of sciatica or femoral nerve root compression. However, interestingly, on direct questioning, she thought that the intermittent right leg pain that she gets is of a very similar, if not identical quality to the very severe right arm pain, for which she required surgery, as outlined above. Accordingly I think it is reasonable to conclude that she has intermittent low back nerve root irritation? Right L5.[sic]

Hopefully, there will be a spontaneous improvement and that within six weeks or so she will be much better.”

Report from Specialist Neurosurgical Registrar Mr Peter Whitfield dated 7 October 1997:

“…On examination I noted that her neck movements were restricted. The power, sensation and reflexes were unremarkable. Her knee jerks were however both on the brick side. As you know her previous MRI scan showed a C4/5 disc in addition to the C5/6 disc. I could see no evidence that this was causing any progressive nerve compression. I have again reassured her that many of her symptoms will subside with time…

…Regarding her job as a nurse I think while she still has some symptoms it is inadvisable for her to return to work. She has been offered a job as a medical secretary. I suspect that the prolonged sitting in this kind of occupation would cause her problems. An alternative option is to work as a Research Nurse doing part secretarial and part research work. I am sure this would be preferable from the physical side of things.”

Report from Consultant Neurosurgeon Robert Macfarlane dated 23 March 1998:

“Mrs O’Regan was admitted under my care in May 1997 with a three year history of neck pain and right sided brachialgia associated with parathesiae affecting the index and middle fingers….

…When reviewed as an Out Patient on 29 July 1997 her brachialgia was virtually resolved, but she complained of parasthesiae in both the upper and lower limbs, although there was no neurological deficit. At further review on 7 October 1997 she again had complaints of parasthesiae in the upper and lower limbs and an intermittent electric shock type pain in the left arm which was associated with her menstrual cycle. She was reviewed at that time by my Senior Registrar who again could find no evidence of neurological deficit. He recommended to her that it was inadvisable for her to return to her previous nursing duties, but suggested a more sedentary nursing post.”

Reports from Robert Macfarlane dated 9 September 1998:

“..On examination she had restriction of all range of movements of the cervical spine with tenderness in the lower middle cervical region. Tone was normal in the upper and lower limbs with full power in all motor groups and preserved sensation proprioception and vibration sense. The right biceps jerk was absent. The triceps and knee jerks were brisk but with no positive finger jerks or crossed adductors and the plantar responses were flexor.

In view of her symptoms I agree that she merits a repeat MRI scan, which I will arrange for her as an NHS patient at Bedford and will then review her with the result.”

dated 22 February 1999:

“Miss O’Regan was referred to me with pain in her neck and right arm and was found on investigation to have a disc prolapse at C5/6 super imposed upon a congenitally narrow canal. She underwent anterior cervical discectomy and fusion at this level 27.5.1997. When reviewed as an out patient 29.7.1997 her arm pain had virtually resolved but she had developed tingling in the upper and lower limbs. On further review 20.4.1998 the pain in her arm had settled but she had some residual altered sensation in the right hand together with intermittent neck pain.

When seen by me 9.9.1998 she had returned to full time nursing around June but she subsequently developed worsening neck pain and tingling in both legs. She underwent a repeated MRI scan of the cervical spine which appeared satisfactory. By mid December she had developed pain in both legs and was sent for an MRI scan of her thoracic and lumbar spines, but this has shown no evidence of disc prolapse or nerve root compression.”

Report from Visiting Specialist Registrar in Neurosurgery, Mr M Sheridan, dated 20 April 1998:

“I reviewed this lady in Mr Macfarlane’s clinic at Bedford. As you know she had an anterior cervical discectomy and fusion in May 1997. She has made a slow recovery from this, but now reports essentially no residual pain, but does have a little residual numbness in her right hand. She also reports occasional episodes of left sided neck and shoulder pain which are controlled by Diclofenac. Her main concern at the moment is that she wants to have a baby, and I do not think that there is any contra indication to this from the surgical point of view, but I told her to discuss with her obstetrician the choice of pain killers before she does become pregnant.”

Report from Specialist Registrar in neurosurgery, Mr Vickneswan, dated 21 December 1998:

“…On examination her motor system is essentially intact. She has reduced sensation below the level of L2 bilaterally. Her reflexes, however, are extremely brisk in her knee and ankle bilaterally. There is no clonus and the plantars are down going.

Her recent MRI scans do not suggest any significant lesion in the neck and her decompression appears adequate. I do not feel that the minor indentation could account for her symptoms and findings. I feel that an MRI of her lower and upper lumbar spine might be helpful for this lady…”

Medico-Legal Report from Consultant Orthopaedic Surgeon Nigel H Harris dated 3 March 1999:

“EXAMINATION

She sat comfortably during the consultation and moved about freely.

Cervical spine: All movements are restricted especially extension and rotation. The shoulder girdles are clinically normal.

Upper limbs: I found it difficult to obtain the right biceps and supinator reflexes. I did not find any motor weakness or sensory loss.

Lumbar spine: Extension: reasonable range. Flexion: to mid tibia. No tilting. Straight leg raising 70°-80°. No nerve root tension signs. Reflexes present and equal. The plantars are flexor. No motor weakness. Muscle tone: normal.

COMMENT ON CAUSATION

The Cervical Spine

It is known that she had developed a prolapse and degenerate disc by May 1997 and there was a neurological deficit in the right arm at the time.

The probability is that the disc derangement began in January 1994. It is unlikely that a prolapse occurred because she had a long period of freedom from symptoms and normal work from June 1994 to April 1996.

It is possible that during this period there was a very gradual degeneration of the C5/6 disc without the presence of symptoms while working. I presume this continued to stress the degenerate disc.

Herniation of some disc material probably occurred in April 1996 to cause a further acute attack.

A more significant prolapse occurred in March 1997, which necessitated operative treatment.

I am bound to conclude in the absence of any evidence to the contrary, that her occupation was a significant causative factor in the disc derangement. The amount of lifting and the mechanism used for lifting will have paid a paramount role in causation.

Whether or not the amount of lifting and the way it was done was reasonable is not something I can comment on.

I note from what one of the MRI scan reports she had narrowing of the cervical spinal canal and exit foramen. This suggests it was probably developmental in origin and therefore she had a vulnerable cervical spine. However, I do not think it likely that it materially influenced the onset of symptoms from the disc derangement. In the absence of a disc prolapse, on the balance of probability she would have continued her nursing duties until reaching retirement age.

PROGNOSIS

As far as the cervical spine is concerned, I doubt if there will be significant improvement in future years. In fact, there is a definite possibility of further intermittent deterioration.

WORK

The condition of the cervical spine and the problems over the last five years convince me that she is permanently unfit for any form of nursing duties, except for administration.

THE LUMBAR SPINE

There has been a relatively recent complaint of low back pain. The cause of the original pain in April 1994 was probably no more than simple soft tissue strain caused by lifting and bending and it soon recovered.

The recurrence in 1998 has been investigated but I am unaware of the result. I am unable therefore to discuss causation, possible treatment or prognosis.”

Report from Specialist Neurosurgical Registrar Vijay Kumar dated 16 April 1999:

“…Neurosurgical examination revealed generally brisk reflexes but otherwise good power in all four limbs, with normal sensation including dorsal column sensation. She has positive finger jerks and Hoffmans. She is able to walk with a normal gait, heel toe walking is normal and Romberg’s sign is negative.

Her cervical MRI scan shows considerable degenerative changes with reversal of the normal cervical lordosis but no obvious cord compression. Her lumbar MRI shows no evidence of thecal or nerve root compression.

Given that her symptoms appear to worsen intermittently and are associated with headache and visual symptoms I think we need to proceed to an MRI scan of the brain and get a neurological opinion with a view to excluding multiple sclerosis. I am also getting plain X-rays of the cervical spine in flexion and extension to rule out any obvious instability. Apart from this there are no particular neurosurgical recommendations and I have not made any routine follow up appointments to review her.”

MRI scan report from P Hicks dated 7 June 1999:

“Dual echo axial, T1 sagittal and FLARE coronal sequences.

White matter high signal foci are seen in the left hemisphere on slices 19, 16 and 15 of the T2 sequence. One of the lesions in the left hemisphere appears to lie as plaque in the lateral border of the left lateral ventricle; some of the lesions appear flame shaped. Although there is no indication of posterior fossa or brain stem involvement, the number and distribution of the lesions does suggest a diagnosis of demyelination.”

Report from Consultant Neurologist and University Lecturer Neil J Scolding dated 8 July 1999:

“…At present she is well. She has had migraine in the past, as well as asthma. There is a family history of rheumatoid arthritis. Examination today was.

Hers is not a history which strongly suggests multiple sclerosis, and there are no signs on examination today to suggest this. I have arranged for Marion to come in to Addenbrookes for visual evoked responses and spinal fluid analysis. We will review her MRI scan then, but it has certainly been the case that MRI scans in the past have been over interpreted, and I would not regard imaging abnormalities as sufficient for the diagnosis, although this is what she has been told, and I gather she also has a photocopy of the Bedford MRI scan report.”

Report from Locum Consultant Neurologist Gilliam Hall dated 31 January 2000:

“I reviewed your patient in the neurology clinic today. As you will remember she is a lady who had developed symptoms following an accident at work and whose MRI scan had showed some white matter lesions which had raised the question of multiple sclerosis….

…I explained to her it is highly unlikely this is multiple sclerosis but of course if things change in the future we will see her then….”

Report from Locum Occupational Health Physician Dr J N Mitchell dated 18 July 1996:

“I was asked to see Staff Nurse Sear by Dorothy Coles, our Occupational Health Nurse. The story was of a painful neck and right arm which came on gradually (no precipitating cause). Seen and treated in Accident and Emergency department. When she consulted her general practitioner on 23 May, a course of physiotherapy was advised. Seen by me on 3 June when her condition was unchanged and symptoms virtually unabated. I recommended to her that she should consult her general practitioner once more as she should not be working.”

Report from Dr Mitchell dated 4 September 1996:

“I was asked to see your patient, Mrs O’Regan, by her clinical manager, who expressed concern over her prospects for future employment. I saw her last in June of this year when she complained of neck stiffness and I noted that it was held in lateral flexion to the right side. I said she should not be working and advised her to consult her GP. Could you please tell me of the findings in her case? I have enclosed a signed consent form to the disclosure of the information.”

Report from Dr Mitchell dated 11 November 1996:

“…In my opinion based on the available medical evidence, Ms O’Regan is fit for all nursing duties with the exception of heavy repetitive lifting, pulling and pushing. I recommend redeployment into an area of nursing where this restriction does not apply.”

Report from Dr Mitchell dated 16 March 1998:

“…She has made, and continues to make a good recovery post surgery. The aim is a return to work. However, this work should not involve heavy or repetitive lifting, or manual handling of any degree. The watch word should be ‘sedentary’.

Ms O’Regan should be reviewed here in May, prior to the proposed return (some 12 months after surgery). I recommend that this should be phased for the first two weeks, at a level of half her normal working hours. A risk assessment will also be required in accordance with the relevant Health and Safety legislation (Manual Handling and Management of Health and Safety Regulations (1992)).”

Report from Dr Mitchell dated 10 June 1998:

“Miss O’Regan had surgery (cervical discectomy and fusion), in May last year following a three year history of neck pain and brachialgia. The plan now is that she returns to work, which will be in the Elderly Therapy Centre in Gilbert Hitchcock House. I have told Keith Dean that the watchword should be ‘sedentary'. He is asking for a risk assessment of her workplace, and I would be grateful if I could prevail upon you to undertake an ergonomic survey under the aegis of the Manual Handling Regulations (1992).”

Report from Locum Occupational Health Physician Dr C White dated 2 June 1998:

“When I saw her recently, it was clear that Ms O’Regan would be able to return to work on 1 June 1998 along the lines set out above. It was gratifying to be told that she was surprised that she had done so well so quickly. The symptoms which she still had last October (6 months after neurosurgery – and described in a letter from the Consultant Neurosurgeon received here shortly after she was seen by Dr Mitchell) have diminished even further now. Apart from a little pain occasionally, for which she has tablets if required, there is only one very slight (and irrelevant) small patch of dull skin sensation, and the small loss of rotary movement of the neck is now no handicap, even when driving. I confirmed that Ms O’Regan should not participate in any lifting of patients and that – in the absence of any specific maximum weight of an object being stated – she should not be required to carry any load unassisted in excess of 10kg. …”

Report from Head Occupational Therapist Vivien Kilgour dated 15 July 1998:

“Summary Marion is working 30 hours per week following a phased return to work after 13 months sick leave. Her current role does not require heavy nursing duties to be undertaken as her job involves management tasks such as strategic planning. However, this means that stooped/static postures may become risk factors.

Recommendations

1. Provision of an adjustable chair with full lumbar support that is mobile yet lockable. Action – O.T. has ordered for a trial following approval by K. Dean.

2. Re-design workstation to involve lowering of shelves, relocation of filing cabinets and removal of part of the work surface. Plans for this will be available on request.

3. Urgent provision of training in moving and handling to include advice for clerical workers.”

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