Dessau v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT AT AUCKLAND Decision No. 207 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ALEXANDER BERNARD DEWSBURY DESSAU DCA 190/97 Appellant AND ACCIDENT REHABILIATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of October 1997 APPEARANCES The appellant in person Mr MG Colson for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation had rightfully declined to pay for the costs associated with a total hip joint replacement performed on the appellant as a private patient. 2 Background Facts On 2 April 1994 the appellant suffered a fall off a step ladder causing sprain to his right abdomen and pelvis. The injury caused by this fall could well have been exacerbated by a twisting movement he did soon after when mowing his sloping lawn. He received physiotherapy treatment for this injury. The injury manifested itself in pain to his right groin and after three months of physio he was still experiencing pain. In July 1994 he was referred by his GP Dr Eustace to Mr Richard Nicol, Orthopaedic Surgeon. In his report of 22 July 1994 Mr Nicol noted that he had restricted movement in his right hip in comparison to his left and that at the extreme of abduction, flexion and external rotation he experienced groin pain. Mr Nicol arranged for x-rays to be taken and in his report to Dr Eustace, he stated that the x-rays confirmed mild osteoarthritis of both hips, and a slight calcification around the tip of the trochanter. It was Mr Nicol's opinion that there was really nothing that could be done and he was told "to ignore his discomfort and continue with his present active lifestyle". It should be mentioned that at the time of the accident, the appellant was aged 87 years, but nevertheless led a very active life, was totally independent, enjoyed playing golf and generally had an active lifestyle. It can be inferred from his activity at the time of his accident that he was able to do domestic tasks such as gardening and lawn mowing. 3 In August 1996, he was again referred to Mr Nicol by Dr Eustace because of the increasing discomfort in his right groin which had as a consequence a restricting of his hitherto active lifestyle. When examined by Mr Nicol he was limping, he had pain in his right hip and a new x-ray of his right hip disclosed that there was significant change in terms of his osteoarthritis with now cyst formation in the femoral head and marked joint space narrowing. Mr Nicol advised that the adductor spasm which he was experiencing was a protective mechanism to try and stop his hip from moving and causing him pain. It was Mr Nicol's opinion that he would either have to endure his current situation or have a total hip replacement. The Corporation received a request for approval of private hospital treatment costs from the appellant dated 28 August 1996. This sought a replacement of the right hip. This request was referred to the Corporation's branch medical advisor who had advised that in his opinion there was no way that the development of osteoarthritis requiring a total hip joint replacement could be attributed to the accident of 2 April 1994. By letter 16 September 1996 the appellant was advised that his request for the Corporation to pay for the cost of private hospital treatment was declined "because your hip injury 1994 was classed as a minor injury. We do not believe the development of osteoarthritis, requiring a total hip joint replacement, is attributed to this incident." The appellant made application to review that decision. The review hearing took place on 16 April 1997 and as a consequence of matters raised at that hearing the Review Officer sought a further opinion from another Orthopaedic Surgeon, Mr Nicolson. 4 Mr Nicholson did not examine the appellant but was provided with the Corporation's file which had the various medical reports and x-rays and it was Mr Nicholson's opinion that the symptoms experienced by the appellant must be considered to be caused wholly or substantially by the ageing process and not as a consequence of the 1994 injury. The appellant was provided with a copy of Mr Nicolson's report and the appellant replied in a letter of 5 May 1997 to the effect that he believed that in his instructions to Mr Nicolson the Review Officer may have understated the circumstances of the original accident. The appellant went on to give a full description of the circumstances of the accident and the injuries and pain which he experienced thereafter. The appellant's letter of 5 May 1997 was referred to Mr Nicolson for his consideration and comment and he stated "having considered matters again, it remains my opinion that the symptoms experienced from the osteoarthritis of the hip are caused wholly or substantially by the ageing process." On the basis of Mr Nicholson's opinion, the Review Officer upheld the Corporation's decision to decline to meet the costs of the appellant's private hospital hip joint replacement operation which had in fact been carried out at Mercy Hospital on 22 August 1996 by Mr Nicol. The Law Section 10 of the Act sets out general exclusions from cover and sub-section 2(2) (a) states "for the avoidance of doubt it is hereby declared that personal injury caused wholly or substantially by the ageing process is not covered by this Act". Under Section 27 of the Act the Corporation is only bound to contribute to the cost of any treatment in respect of personal injury that is covered by this Act. UI The consequence of the foregoing statutory provisions is that the appellant has to satisfy the Court on the balance of probabilities that the treatment sought to be claimed was necessitated as a consequence of personal injury by accident for which the claimant has cover under the Act. Conclusions From the x-ray evidence in July 1994, some three months after the accident, it was established that the appellant had mild osteoarthritis of both hips. There is no evidence to suggest that that osteoarthritis was caused by the fall but rather that it would have existed at the time of the fall. The x-ray evidence obtained some two years later establishes that the osteoarthritis in the right hip have increased markedly and had reached the stage where treatment of it necessitated a total hip replacement. At the hearing before me the appellant posed a question as to why it should only be the right hip which deteriorated, being the hip which was hurt in the fall with there being no discomfort at all from the left hip, if it was not the fall that caused the injury. No expert opinion was put forward by the appellant in an endeavour to answer that question but I consider the matter well covered in the reports of Mr Nicholson who states "that the injury sustained was minor and that the extent of disability was small at the time he was seen by Mr Nicol in July 1994. ... If the injury had initiated the development of symptoms it would be reasonable to expect that significant symptoms were present immediately after the injury and that they continued and became increasingly more severe". This was not the case with the appellant. 6 He further stated that for an injury to actually cause arthritis of the hip it was his experience that either a dislocation or a fracture must have occurred and there was no evidence of this in this case. I conclude from the two reports of Mr Nicholson that there is just no real possibility that the fall, which was regarded as minor, could have started the osteoarthritis and that the osteoarthritis was in fact already present. Prior to the fall it was asymptomatic but that following the fall the right hip degenerated over the ensuing two years. The opinion of Mr Nicholson that the ostheoarthritis of the appellant's hip was caused wholly or substantially by the ageing process is not countered by any opinion from Mr Nicol, the surgeon who carried out the operation, or the appellant's GP Dr Eustace. In fact Dr Eustace did advise that in his opinion "it would appear therefore that the injury may well have aggravated his underlying mild osteoarthritis". At the hearing the appellant advised that the operation was a complete success and he clearly demonstrated to the Court that for a man of 90 years of age he was in remarkable physical condition. His whole demeanour and manner of his submissions was one which demanded sympathy. He even went further to indicate that he was not asking the Corporation to pay for the whole of the costs of his hip replacement but just a contribution to some of the post operative costs that he had incurred. As I indicated to the appellant at the hearing the Act does not provide any discretion to the Corporation to make any partial payment or ex-gratia payment. The Act provides statutory entitlements and if the statutory criteria are met then a person is entitled to the full amount of entitlements provided by the statute. Accordingly, I cannot treat the matter as possibly sympathy would demand, but must look at it in the cold light of the wording of the statute based on the evidence before me. Regrettably when taking that stand the decision is quite clear that the appellant cannot bring himself within the provisions of the Act and that the exclusions contained in section 10 do apply. I rule that the appellant does not have cover under the Act for the cost of the operation for the hip joint replacement that was performed on him. That operation was necessitated by the onset of osteoarthritis which was caused wholly or substantially by the ageing process and not as a consequence of any personal injury by accident. The appeal is therefore dismissed. DATED at AUCKLAND on this 24th day of October 1997 M J Beattie District Court Judge dessau.doc(gm)