Knight v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 223 199 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 BEDLINGTON ALBERT KNIGHT DCA 461/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of July 1999 APPEARANCES: Mr ARV Rowlett, advocate for appellant Mr J D Palmer, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct in its decision to cancel ongoing entitlements under the Act on the grounds that the appellant's present incapacity and condition was not attributable to, or causally connected with, the personal injury by accident suffered by the appellant on 17 October 1984 and in respect of which he had been granted cover under the Act. N Background -- - The appellant is now aged 79 years. On 17 September 1984 he suffered an injury to his left knee when, in the course of drenching some cattle, a cow bumped against him and pushed his knee against a fence. His knee became swollen and painful and he was referred by his GP to Mr E W Jamieson, Orthopaedic Surgeon and Mr Jamieson sought approval to undertake arthroscopy. X-rays taken prior to this injury, in April 1984, had established that the appellant had osteoarthritis lipping at the articular margins of the left knee joint and there was some loss of articular cartilage on the medial aspect of the joint. Those x-rays also indicated that there were more marked osteoarthritis changes present in the medial aspect of the right knee at that time. Mr Jamieson carried out arthroscopy in October 1984, and in his report to the appellant's GP he advised that arthroscopy showed advanced osteoarthritis at the medial compartment of his left knee and fibrillation of the medial meniscus. Mr Jamieson advised that the best treatment for the appellant would be a medial compartment knee joint replacement. Permission was sought from the respondent to carry out that knee joint replacement surgery, such permission was given, and that surgery was carried out on 29 January 1985. That operation was not wholly successful and the appellant was required to undergo three further operations for replacement of the prosthesis and revision operations took place on 29 January 1986, 14 April 1987 and 29 September 1988. Mr Jamieson the surgeon described it as follows: Loosening of the component occurred, requiring revision on two occasions, and following the second revision infection of the prosthesis occurred, possibly due to back bacteraemia from oral sepsis. Surgical attempts at arthrodesis failed and the end result is deformity, pain and instability at the site of failed left knee arthrodesis. For lump sum compensation purposes that 3 disability was assessed as being 30% loss of total bodily function and lump sum compensation was paid to the appellant on that basis. The appellant's disability from his knee meant that he was unable to resume his former occupation of farming. He received weekly compensation and other entitlements. Over time the appellant's condition deteriorated and in November 1993 Mr Grayson, Orthopaedic Consultant, advised the respondent that there would have been a further 15% loss of total bodily function since the previous examination in 1989 and a further lump sum was paid to the appellant for that difference. In early 1998 the appellant's situation was reviewed by the respondent. It had two reports from Mr Brougham, Orthopaedic Surgeon, from March 1996 and March 1998 and from those reports the respondent's Branch Medical Advisor noted that there was a substantial question whether the appellant's initial left total knee joint replacement should have been a Corporation responsibility and that the question was now whether his knee problems were wholly or substantially the result of the ageing process. After reviewing all the medical reports, including reports of the appellant's condition prior to the 1984 accident, the respondent's Branch Medical Advisor considered that there was evidence that the appellant had osteoarthritis of the left knee before the date of his accident and that whilst it was appropriate for the Corporation to contribute some support to the appellant in respect of the injury in 1984, he considered it was apparent that the substantial part of the appellant's problems related to pre-existing osteoarthritis and its development with the ageing process. Accordingly, the respondent did on 10 June 1998 advise the appellant that it was ceasing his entitlements on the basis that it was the pre-existing condition of osteoarthritis which was now the substantial cause of his incapacity and not the consequence of injury. 4 The appellant sought a review of that decision and for the purposes of that review the appellant submitted a report from his GP Dr Ting, and also a further report from -- - Mr Jamieson: In her decision dated 27 October 1998 the Review Officer found that it was clear from the medical evidence that at the time of the appellant's accident his knee was already significantly compromised by osteoarthritis and upheld the Corporation's decision. The issue for determination of this appeal requires a consideration of the medical evidence and in respect of this appellant there is a significant body of evidence going back to prior to the time of his accident on 17 October 1984. Medical evidence The appellant had had both his knees x-rayed in April 1984 and in the report from the Radiology Department of Mercy Hospital, Palmerston North it stated: Left knee: the left patella is bipartite. Osteoarthritis lipping is present at the articular margins of the knee joint; and there is some loss of the articular cartilage on the medial aspect of the joint. More marked osteoarthritis changes are present in the medial aspect of the right knee. As previously noted when Mr Jamieson carried out arthroscopy surgery in October 1984 he noted "arthroscopy showed advanced osteoarthritis at the medial compartment of his left knee and fibrillation of the medial meniscus." In a later report dated 11 July 1989 Mr Jamieson reviewed the appellant's history since the initial knee joint replacement surgery on 29 January 1985. He stated: Initial progress was good and by April 1985 he had regained 90deg. Of knee flexion and was experiencing little pain. This situation did not last however, and he developed persistent pain about the medial aspect of the knee. Further surgery was performed on 29 January 1986. Symptoms were considered to be due to bony impingement and medial femoral and tibial bone was resected. Initial progress was good but this was not sustained. Further loosening occurred and in summary Mr Knight has undergone two further revision operations to his left knee joint. These were 5 performed on 14th April 1987 and 29th September 1988. Progressive loosening of the prosthesis had occurred. --. . . At the operation performed at Palmerston North Hospital on 29th September 1988, extensive bone grafting was required to stabilise the prosthesis. Mr Knight made very good post-operative progress for approximately 6 weeks when overt and severe infection developed in the knee joint. He was admitted to hospital for orthoscopic irrigation of the knee which was performed on 2 occasions, and maintained on long term antibiotics since. Mr Knight has suffered a serious complication of left knee joint replacement ie progressive loosening and ultimately infection of the prosthesis. It is my opinion that resolution of this problem will involve surgical arthrodesis (stiffening) of the left knee joint. On 21 April 1991 Mr Jamieson wrote to the Corporation and stated: Mr Knight is certainly significantly disabled due to arthrodesis of the left knee, ie surgical stiffening, and osteoarthritis and injury to the right knees. Further surgery to Mr Knight's left knee has been advised. There is failure of sound arthrodesis resulting in pain. Mr Knight's name is on the Palmerston North Hospital orthopaedic list for this surgery to be performed. In a report dated 3 November 1993 Mr Grayson, Orthopaedic Consultant advised the Corporation of his assessment of the appellant for deterioration under section 78 of the 1982 Act. Mr Grayson commented as follows: Mr Knight is very seriously disabled by the condition of both his knee joints and is reaching a stage where he is likely to lose his ability to independent living. On the left side, although infliction in the knee joint appears to be under control, I think there is still some movement taking place at this arthrodesis site and this is confirmed by latest x-rays of 30.7.93 which shows some rarefaction around the upper two screw holes holding the plate to the femur indicative of some loosening of the fixation device. However, in view of the osteoporosis (thinning of the bones) I doubt if any further surgery is going to be successful in eliminating this untoward movement, which is at the background of his pain in the leg when he is weight bearing. Under section 78 disability in the left knee would equate to 60% loss of function of the leg ie 45% of total, and there has therefore been a 15% loss of total bodily function since the previous examination on 11.7.89. Mr Knight will need to continue to be under constant medical supervision - unfortunately I doubt if it will be possible to prevent the ongoing deterioration 6 in both his knee joints, and he will need medication permanently for pain relief in this respect In March 1996 the appellant was referred to Mr Brougham, Orthopaedic Surgeon, by his now GP, Dr Ting. Mr Brougham commented: When last seen in October of 1993 he had little pain in the left knee and was mobilising without crutches. Mr Knight has subsequently begun to develop quite a lot of pain just below the left knee once more. In addition he has developed a very sympathetic osteoarthritis of his right knee. His marked genu varum deformities of both knees. Ligaments appear stable but certainly deformity not correct. ... I have neglected to mention that Mr Knight feels that there may have been some increased (sic) in deformity of his left leg in the last 12 months or so. All in all, there is quite clear evidence that the arthrodesis of his left knee is not completely sound and I am sure that this is the cause of his symptoms. However, to revise, it yet again would be a daunting task and certainly not one to be undertaken without due consideration being given to a possible outcome being an above knee amputation.... I have put it to him that despite his past history, the better option in terms of treatment would be looking at trying to give him a good right knee so that he could weight spare his left knee. He is however, extremely reluctant to even consider this option and I can understand that. We have left it that at present he will try and continue as best he can. ... I felt that his total disability was approximately 50percent. In a further report to Dr Ting in March 1998 Mr Brougham stated: Mr Knight's initial trouble began following the three left total knee joint replacements that went wrong ultimately resulting in an infection. He had a subsequent arthrodesis of the knee undertaken on 19.10.89. He failed and he had a revision of this arthrodesis 20.6.91. This too has failed. Mr Knight is left with significant ongoing pain and deformity of the left knee. It is not helped by the fact that he has developed very marked medial compartment osteoarthritis of his right knee. He now has virus deformities that one could 'drive a bus' through. . .. In my opinion the treatment plan for Mr Knight should at this stage consist of a further attempt at arthrodesing of his left knee... . This is to avoid the potential for infection in influencing a satisfactory right total knee joint hip replacement should this be undertaken first... I believe that this surgery must improve this man's function. 7 For the purposes of the review hearing Dr Ting advised the appellant's advocate as follows: I personally find it hard to accept the view that his left knee problems are the sole result of osteoarthritis! I know there is osteoarthritis in his right knee, and despite the extra 'stress' it has taken because of his left knee problem, he still has good use of it. If he had no injury to his left knee, it could be argued that it may be no worse than his right knee at present. If that were the case, then he would not have a .. . significant disability like he has now. Similarly, Mr Jamieson provided a report for the appellant's advocate for the purposes of the review hearing, that report stated as follows: A provisional diagnosis of medial meniscal tear was made. Physiotherapy was organised with Mr Mark Oram. His knee failed to settle and arthroscopy was undertaken on 17.10.84. Arthroscopy demonstrated significant changes of osteoarthritis within the medial compartments. Mr Knight's present disability is a direct consequence of the complications of left total knee joint replacement undertaken on 29. 1.85. Loosening of the component occurred, requiring revision on two occasions, and following the second revision infection of the prosthesis occurred, possibly due to bacteraemia from oral sepsis. Surgical attempts at arthrodesis failed and the end result is deformity, pain and instability at the site of failed left knee arthrodesis. It is certainly true that left knee joint osteoarthritis was present at the time of the original accident in September 1984. This farm bike accident rendered his left knee symptomatic. This is a not uncommon occurrence in that physical injury may aggravate symptoms from osteoarthritis to the point where treatment is advised, or requested. This I do believe that the condition of Mr Knight's left knee is a consequence of the accident in 1984 in a sense that this accident precipitated a request for treatment. It is also true that the degenerative process of osteoarthritis was evident before this incident. The third point in your letter is whether or not I consider Mr Knight's disability would be substantially the same or considerably worse than it would have been had he not had the accident in 1984. Quite possibly if this accident had not occurred Mr Knight would have continued with osteoarthritis in both of his knees, and may not have sought treatment. This however, is in the realm of speculation. Certainly his left knee disability is now considerably greater 8 than it would have been had he not suffered complications following left total knee joint replacement, as outlined above. On 31 December 1998 Mr Jamieson, in response to a request from the appellant's advocate, commented further on the appellant's case. Mr Jamieson indicated that as a result of his accident the appellant sustained damage to his knee additional to pre- existing arthritis and that "the accidental injury precipitated a painful effusion and a cycle of increasing pain requiring treatment. A fracture or ligamentous tear did not occur. The injury resulted in swelling, pain and impaired function, i.e. reduced mobility". In response to the question whether the accident was the reason why surgery was carried out to the left knee when the right knee appeared to be more greatly affected by osteoarthritis beforehand, Mr Jamieson responded: It is clear from the medical records that Mr Knight was referred for orthopaedic opinion because his knee had become painful following injury. He had suffered from arthritis of both knees for a long time. Accidental injury to his left knee resulted in such painful disability that knee replacement surgery was undertaken. although his right knee was similarly or possibly more greatly affected by osteoarthritis, surgical treatment was not advised or requested Submissions Mr Rowlett, advocate for the appellant, submitted as follows: I The appellant's present disability is as a direct consequence of the complications of left total knee joint surgery and that surgery was carried out due to the accident injury to the left knee. II There was more severe arthritis in the right knee yet it was only the left knee that required operating, because of the accident. III There is a link between the accident and the ongoing incapacity by way of complications from surgery. 9 Mr Pamer, counsel for the respondent submitted: --- I That the medical evidence does not establish that the appellant's current condition is directly linked to his accident. II The weight of the medical evidence establishes that the appellant's condition is wholly or substantially caused by gradual process disease or infection and therefore excluded from cover by section 10. III The substantial causes of the appellant's ongoing condition are his pre-existing osteoarthritis and Pagets disease and the failed knee reconstruction surgery and its complications. IV The injury in the accident was minor, not causing a tear or fracture. V The reasons for the surgery were not the injuries from the accident but the pre- existing osteoarthritis. The surgery was required for the treatment of the pre- existing condition not for any injury sustained in the accident. Decision There is no dispute that both the appellant's knees were quite severely diseased with osteoarthritis at the time of the accident in September 1984. It also seems to be clear that the right knee was more severely affected than the left but that it was largely asymptomatic. Prior to the accident the appellant seems to have been largely symptom-free and able to carry out the normal duties of a farmer as he did. Both the medical evidence of the injury from the accident and the narrative of the accident from the appellant indicate that the accident itself was not severe and the injury that was caused to the appellant was comparatively minor. In his initial diagnosis before x-rays Mr Jamieson thought that the appellant may have suffered a 10 medial meniscus tear and he initially directed conservative treatment by way of physiotherapy. Mr Jamieson made it clear that that was a provisional diagnosis only and in his report of 31 December 1998 to Mr Rowlett he advised that a fracture or ligamentous tear did not occur. The injury suffered only resulted in swelling, pain and reduced mobility. From this I conclude that the effects of the trauma of the accident did not produce any disabling damage which of itself required surgical repair. It is clear that the . .. appellant's knee became painful because of the blow it had suffered and the effects that blow had on his existing arthritic condition. As was stated by Mr Jamieson, the accident rendered the left knee symptomatic. He noted that it was not an uncommon occurrence that a physical injury aggravates symptoms of osteoarthritis to a point where treatment is advised. He further stated that the accident precipitated a request for treatment. He could equally have said that the accident precipitated the symptomatic effects of the osteoarthritis in his knee. There has been no evidence that the physical injury caused in the accident was such that it required a total knee replacement. As I have previously noted, there was no tear or fracture, there was however severe articular cartilage erosion of the medial joint at the time of the accident. I find and rule that it was that state of affairs which required the left knee joint replacement. It is those symptoms which Mr Jamieson stated were such that the knee joint replacement was required. There can be no dispute that the level of the appellant's present disability is as a direct consequence of the complications of the left total knee joint replacement surgery, however I find that the medical evidence is clear that the left knee joint surgery was not required or made necessary as a consequence of the damage caused by the accident in September 1984. I note Mr Rowlett's submission that the appellant's right knee, which was supposedly more diseased, had not required any similar surgery and it was his contention that the 11 accident was the intervening factor which was the difference between the two knees. I find that that submission is too simplistic and does not take account of the damage, or -- - lack of same, which the injury caused and does not recognise that the blow of the accident simply triggered the symptoms of the pre-existing osteoarthritis to a stage where surgery was necessary. This Court has on several occasions considered the state of affairs which I have found on the facts of this case. As was stated by this Court in its decision in Burke (Decision 198/98): If the trauma of the accident hastens or precipitates the onset of the symptoms of the pre-existing degenerative condition, then once the medical opinion is that it is the degenerative condition which is wholly or substantially the cause of the ongoing symptoms then cover is excluded. Whilst the physical effects of the trauma are present, ie the twist or strain or such like, medical opinion would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury proved to be causative. Once the effects of the injury have receded and the medical opinion was that it was the residual degenerative condition which was wholly or substantially the cause of the ongoing problem then at that time the claimant was no longer entitled to cover under the Act by virtue of section 10. A person is entitled to compensation for the full extent of injury suffered by accident, however naturally frail they may be. Whilst it is correct that a victim must be taken as he/she is found, if that victim is found with some pre-existing condition that is excluded by section 10, the ongoing effects of that condition cannot be a basis for cover. In the present case I find as a fact that the appellant's present disability is a consequence of the complications of the total knee joint replacement that he underwent, that knee joint replacement being required as a consequence of the osteoarthritis in his knee. The trauma of the injury by accident was not causative of the injury for which surgery was required, it simply precipitated or aggravated and made symptomatic that pre-existing condition. The effects of the trauma from the accident have long since dissipated. 12 The blow to the knee may have been catalyst but it did not cause the injuries in respect of which surgery was required and in respect of which the complications -- - followed. For these reasons therefore the respondent was correct to rule that the appellant's entitlements under the Act in respect of the personal injury suffered by him on 17 September 1984 should cease as there was no causal connection between that injury and his present condition. This appeal is therefore dismissed. DATED at WELLINGTON this 12th day of August 1999 M J Beattie District Court Judge 461.98.Knight.doc