Walmsley v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2014] NZACC 149 ACR 108/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ANNETTE WALMSLEY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 1 April 2014 Appearances: H Peart for the appellant F Becroft for the respondent Judgment: 17 June 2014 RESERVED JUDGMENT OF JUDGE DENESE HENARE [1] The issue in this appeal arises from the respondent's decision of 19 June 2012 declining funding for the appellant's elective surgery on the basis that the need for such surgery relates to a pre-existing condition. Background [2] On 19 November 2011 the appellant injured her right wrist when lifting a heavy tractor tyre as part of a boot camp exercise. At the review hearing, the appellant described the mechanism of injury at the time: [The appellant] The exercise I was performing at the time of injury was flipping a large tractor tyre, end for end, down a field. This exercise was a team exercise, three women all working together, to bend, lift and flip by pushing a large, heavy tyre about 150 metres down a field. ...although feeling discomfort at lifting the tyre, the pain really hurt when I actually went to push the tyre. The pain was such that I could not continue with the rest of the exercise or the class for that night. After the initial injury, I considered it to be only minor and took anti-inflammatories, which was Voltaren, of my own accord. Several weeks passed and my wrist showed no sign of healing and a lump had developed during this time. I had suffered discomfort and a degree of pain both at work and at home. [3] The appellant is a teacher assisting at a special needs school who works with children between the ages of 5 and 14 years. Prior to the accident, the appellant had been symptom free. Following the injury, the appellant described the difficulties of fulfilling her duties: [The appellant] From the time of the injury, performing my daily duties at work and at home were both difficult and very painful. During the course of the time, both the pain and difficulty of tasks performed increased to a level that I could no longer tolerate and my choice became either to find a cure to my injury or stop work. This, therefore, requires us as teachers and carers to lift, support and carry these children, who vary in weight from medium to very heavy, the heaviest of whom requires three people to lift. Even the lightest of duties ... were difficult and painful. Tasks like lifting and carrying children just became too painful, therefore requiring other staff to take over some of my workload. [4] The symptoms did not resolve and the appellant saw her GP, Dr Maurice Jolly on 19 December 2011. He recorded "pain right wrist (radial styloid), mild crepitus and de Quervains synovitis". Dr Jolly completed an injury claim form for "sprained r wrist lifting heavy tyre" on 19 December 2011. [5] In early January 2012 Dr Jolly referred the appellant for physiotherapy. [6] The respondent accepted cover for the right wrist sprain. [7] On 13 April 2012 Mr Simmons, Physiotherapist referred the appellant to Mr Bentall, Orthopaedic Surgeon for review. In the referral letter, Mr Simmons reported: I splintered her wrist to immobilise the base of her thumb, and rest the tendons. This helped, but she continues to aggravate at work, and the radial styloid is still prominent, and irritable [8] On 17 May 2012 Mr Bentall lodged an assessment report and treatment plan (ARTP) which set out the history of the injury: When she felt something pull in the radial aspect of her wrist. ... She developed a prominent swelling at the radial aspect of the radial styloid which has persisted, and marked pain on use of the thumb. [9] In terms of the causal link between the injury and the proposed treatment, Mr Bentall reported that a causal link between the injury and proposed treatment is unlikely: Surgery is required for florid de Quervain's tenosynovitis persisting six months following an acute injury with an associated soft tissue thickening that is unlikely to settle conservatively. [10] Mr Bentall reported his prognosis: [The appellant] has quite marked symptoms of de Quervains tenosynovitis persisting six month following an acute injury where she suffered a probable partial tear or intrasubstance tear of the APL/EPB tendons and I have recommended de Quervain's release. [1 1] Mr Bentall reported on the imaging he had obtained: X-rays obtained today have shown no bone or joint abnormality other than minor breaking at the triscaphe and basal thumb joints but soft tissue swelling is seen at the radial aspect of the radial styloid. 12] On 13 June 2012 Dr Sexton, a member of the respondent's clinical advisory panel, reported that a causal link between the injury and proposed treatment is unlikely: The history of lifting is noted. The condition to be addressed appears to be De Quervain's disease which may be defined as stenosing hypertrophy of the retinaculum overlying the tendons of adductor pollicis longus and extensor pollicis brevis at the wrist. This by definition is a chronic condition and the proposed procedure to release the tendons is consistent with this pathology. A causal link between this and a single event is unlikely. [13] On 20 June 2012 surgery was performed by Mr Bentall following approval from the appellant's private health insurer. The operation note records the procedure involved as a release of the APL and the EPB tendons. Mr Bentall observed: The tendon sheath around this was quite thickened, this was debrided and the APL tendon fully released. The EPB tendon was noted to lie in a separate sub- compartment and this was also released for its full extent. There was thickening and chronic change in the APL tendon associated with the tenovaginitis. [14] On 28 June 2012 Mr Bentall wrote to Dr Jolly following his review of the appellant a week after her surgery. He recorded: At the time of surgery there was a thickening noted of the APL tendon causing tightness within the first extensor compartment. Her history was of a sudden painful strain lifting a heavy tractor tyre at a 'boot camp'. She had not symptoms in the thumb prior to this but marked pain afterwards and I suspect she suffered an intra-substance partial tear of the APL tendon. As this swelled it created tightness within the first extensor compartment, causing increasing pain and inflammation which is de Quervain's stenosing tenovaginitis. I would take issue with comments made by Dr Sexton, Medical Advisor to ACC, who comments on 13" June 2012 that de Quervain's is by definition a chronic condition as if this means it can't be initiated by an acute injury. Obviously if an acute injury doesn't heal it will become chronic. He states a causal link between her condition and a single event is unlikely without offering evidence for that, whereas her history is quite persuasive and the findings at surgery would support acute injury to the APL tendon causing swelling and subsequent de Quervain's stenosing tenovaginitis requiring surgical release. On the balance of probabilities I believe it is more likely than not that her condition was caused by an acute injury lifting the tractor tyre on 19th November 201 1 and should be covered by ACC. [15] On 23 August 2012 the appellant applied for a review of the respondent's decision. [16] On 4 October 2012 Dr Sexton provided a further comment, in response to the operation note: It is important to note in this condition that in its acute or episodic stage de Quervains tenosynovitis may involve an inflammatory response where the tendon sheath, which settles with conservative management possibly involving splintage. De Quervains disease, which is the condition which was treated in this case, is characterised by thickening and hypertrophy of the tissue overlying the tendons of abductor pollicis longus and extensor pollicis brevis and it was this thickened tissue which was released to free up the two tendons as described in the operation note. De Quervains disease is not an inflammatory condition but it is a chronic condition where inflammatory cells are absent and fibroblastic proliferation is the underlying pathology. Although the preoperative report suggested a partial or intrasubstance tear of the relevant tendons had occurred this was not confirmed at the time of the operation. In the absence of inflammatory cells which is a feature of de Quervains disease, a causal link with a single acute event is unlikely. The relevance of the excised ganglion to the underlying pathology is uncertain and probably irrelevant. For the above reasons a causal link between a single event several months prior and the de Quervains disease addressed at the time of the operation is unlikely. [17] On 9 January 2011 Mr Bentall provided a report, in support of the review. Mr Bentall confirmed that at the time of the surgery the APL tendon was noted to be thickened, consistent with an intra-substance partial rupture of the tendon. He suggested that anything that causes the APL tendon to swell, such as a direct blow causing bruising and swelling, may initiate de Quervain's tenosynovitis. Mr Bentall stated: [The appellant] gave a history of a sudden painful strain while lifting a heavy tractor tyre at a 'boot camp'. She had no symptoms prior to this but marked pain immediately afterwards and my impression was that she strained the APL endon by applying a sudden excessive load to the thumb as she sought to move the heavy tyre. The APL tendon extends and abducts the base of the thumb and presumably the weight of the tyre resisted this movement. At surgery the APL tendon was noted to be thickened. This would be consistent with intra-substance partial rupture of the tendon. When this occurs only a percentage of the fibres rupture. The tendon thickens as it attempts to heal as additional collagen is laid down. When the tendon is constrained in a fibro- osseous compartment, as is the case with the APL tendon, the compartment becomes very tight constricting the tendon, causing further inflammation and swelling. This is referred to as a stenosing tenovaginitis. A complete tear of the APL tendon would produce weakness at the base of the thumb but not de Quervain's symptoms as the tendon would retract out of the extensor compartment and not be functional. Conversely, anything that causes the APL tendon to swell, e.g. a direct blow that causes bruising and swelling of the tendon, may initiate de Quervain's tenosynovitis. I would not make a distinction between de Quervain's tenosynovitis and de Quervain's disease other than to comment that once symptoms have been present for several months, chronic changes will occur which may include thickening of the tendon sheath in response to the tightness within the sheath. The greatest proliferation of inflammatory cells will be seen in the acute phase while, as time passes, fibroblastic change will become evident. That does not however mean that the process is a chronic degenerative one, rather that an acute injury has not fully resolved and has therefore developed chronic features. On the balance of probabilities, it is my opinion that the acute injury [the appellant] sustained on 19 November 2011 injured the APL tendon in the first extensor compartment of her right wrist and led to the thickening of the extensor sheath and APL tendon noted at surgical release. [18] By decision dated 25 January 2013 the reviewer dismissed the review on the basis there was insufficient evidence that the appellant had suffered an accidental injury that initiated de Quervains tenosynovitis, and led to the need for surgery. [19] For the purposes of the appeal, the respondent obtained an opinion from Mr Taine, Orthopaedic Surgeon. On 23 January 2014 Mr Taine indicated that the diagnosis in this case was de Quervain's disease and the appellant's signs were consistent with a "pathology arising from the first dorsal (extensor) compartment". Mr Taine commented that "pathology in this compartment commonly arises without trauma, and has an incidence in the patient's demographic". Mr Taine went on to state that "thickening of the tendon and/or sheath is a common finding in this disorder" and could not, in his view, be taken as evidence of a partial rupture. He acknowledged that a causal link was theoretically possible but concluded there was no evidence to support such causation: On a balance of probabilities, based on the information available and including the pathology found at surgery, it is more likely that the accident brought to light or rendered symptomatic an underlying condition. Relevant Law [20] Section 20 of the Accident Compensation Act 2001 provides: 20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts [or work-related mental injury]) (1) A person has cover for a personal injury if - (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to- (a) personal injury caused by an accident to the person: . . . (g) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover: 21] Section 26 of the Accident Compensation Act 2001 provides: 26 Personal injury (1) Personal injury means- (a) the death of a person; or (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person; or (d) mental injury suffered by a person in the circumstances described in section 21; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body. (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). . . . (4) Personal injury does not include- (a) personal injury caused wholly or substantially by the ageing process; or (b) personal injury to teeth or dentures caused by the natural use of those teeth or dentures. [22] Section 26(2) and 26(4) exclude from the definition of personal injury any injury caused wholly or substantially by either a gradual process condition or the ageing process. [23] Under clauses 1 and 2 of Schedule 1 of the Act, the respondent is liable to pay or contribute to the cost of treatment needed to treat a personal injury for which the claimant has cover. Discussion and Analysis [24] Mr Peart for the appellant submitted that the appellant's need for surgery in June 2012 was more likely than not due to her covered wrist injury of 19 November 2011, relying on the evidence of the treating wrist surgeon, Mr Bentall. Mr Peart further submitted the condition treated at surgery would be a consequential injury under s 20(2)(g) even if it did not fall within s 20(2)(a). (25] Ms Becroft for the respondent, submitted that the weight of evidence supports a pre-existing pathology. Ms Becroft submitted that there is probably evidence of a minor acute pathology in the sense of short lived and unrelated to de Quervains disease, the surgery was to treat de Quervains disease, not any acute pathology. Relying on Mr Taine and Dr Sexton, Ms Becroft submitted there is no objective evidence of any tear in this case and clinical findings at surgery did not support the presumption of an earlier tear. Ms Becroft submitted that the opinion of Mr Taine should be preferred. [26] The medical evidence identifies that the terms de Quervain's disease or disorder, tenosynovitis and tenovaginitis are used interchangeably in practice, and refers to the compartment (extensor) on the palmar side of the radial wrist which conntains the APL and APB tendons. [27] At review, the appellant described the mechanism of injury as a repetitive action of 'lifting and flipping by pushing' the tyre 150 meters down a field. Prior to the incident, the appellant had no symptoms but marked pain immediately afterwards. Ms Becroft submitted the pain could not have been significant because the appellant had consulted Dr Jolly about another matter 9 days after the accident, but before the consultation about her wrist. At review, the appellant stated she self- treated with Voltaren initially and because of her history of breast cancer, she did not wish to take cortisone treatment, circumstances noted by Mr Bentall in his report of 16 May 2012. Mr Taine stated "the circumstances are unknown" and he considered it may not be appropriate to give this delay much weight. I find a delay of 9 days credible in the circumstances outlined by the appellant [28] Dr Sexton noted a history of lifting (without elaboration) and opined that a causal link between de Quervain's disease and a single event is unlikely. Dr Sexton described de Quervain's disease as a chronic condition. Mr Bentall disputed this definition "if this means it can't be initiated by an acute injury". Mr Bentall stated the appellant strained the APL tendon by applying a sudden excessive load to the thumb as she sought to move the heavy tyre. Such a direct blow, in his view caused the bruising and swelling of the tendon which initiated de Quervain's tenosynovitis. [29] The first assessment of the right wrist by Dr Jolly in December 2011 noted soft tissue crepitus and de Quervain's synovitis. The crepitus was described by Dr Jolly as mild and there was a full range of movement. Mr Taine stated that the pathology of de Quervain's commonly arises without trauma and a traumatic partial tear of a normal tendon is uncommon. However, he thought it possible that a strain causes an acute synovitis which progresses to more chronic tenosynovitis and tenovaginitis affecting the synovium and sheath respectively. Mr Taine opined there was no evidence to support this causation but he did not provide reasoning for this view. However, Mr Taine considered there is possibly an acute pathology because soft issue crepitus is consistent with tenosynovitis. [30] Mr Bentall explained causation as commencing with the sudden painful strain lifting the heavy tractor tyre, an intra-substance partial tear of the APL tendon which swelled, creating tightness within the first extensor compartment, causing increasing pain and inflammation which is de Quervain's tenovaginitis. Mr Bentall confirmed his findings at surgery as supporting an acute injury to the APL tendon and de Quervain's tenovaginitis, requiring surgical release. Upon review of Mr Bentall's reports I do not find that he is speculative or seeking to justify his opinion after the fact. [31] I accept Mr Peart's submission that although Dr Sexton and Mr Taine make mention of the appellant lifting a tyre, their reports provide general comments based on what they consider to be common or uncommon. They do not relate the circumstances of injury or the fact the appellant had no pre-existing injury. Dr Sexton states a causal link between the appellant's condition and a single event is unlikely without offering evidence for that view. He provides no reasoning why the appellant's situation could not be the result of the accident she actually suffered. Mr Taine opines that pathology in the compartment of the wrist commonly arises without trauma and has an incidence in the appellant's demographic. Mr Taine provides a general perspective that intrasubstance splits described as partial tears are usually connected to tendinopathies. [32] I find Mr Bentall's evidence as the treating surgeon, supported by Dr Jolly, to be the best evidence. I find the weight of the evidence to satisfy the fact of this injury having been suffered by the appellant as a result of the accident event, on the balance of probabilities. Accordingly, I find that the appellant was entitled to have her elective surgery funded by the respondent and I direct that the respondent make payment for the surgery that was carried out by Mr Bentall in June 2012. [33] The appeal is allowed. The appellant being successful in this appeal I am confident that Mr Peart and Ms Becroft are able to agree reasonable costs and any disbursements. Henese I fferave Judge Denese Henare District Court Judge ACR 108/13 Walmsley.doe(vjr)