Hopewell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 15 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRIAN JAMES HOPEWELL of Dunedin Appellant (Appeal No. DCA 89/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of December 1996 APPEARANCES A Stevens for appellant A Barnett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under the Act as having suffered a personal injury by accident pursuant to section 7 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant is now aged 57 and is a panelbeater by occupation. The appellant has been engaged in this type of occupation for some 42 years. His claim for cover was lodged with the respondent in July 1995 and the certificate signed by his General Practitioner diagnosed his problem as "left knee sprain (cartilage problem)." The injury was said to have occurred during April 1995 and his first visit to his doctor was on 2 7 June 1995. The appellant stated that he found that the problem was "locking and clicking of left knee, with swelling; gradual onset over few weeks brought on by heavy use of knees at work." The appellant's employer reported that the appellant worked 40 hours per week and that he had been employed by that employer since 3 August 1993. The employer did not consider that the injury was solely work related. A certificate signed by the General Practitioner on 9 August 1995 gave as his prognosis "knee cartilage problem (sending to repetitive use of knees in work - Panelbeater)". A report from the appellant stated that his problem had developed in the four or five months prior to lodging the claim and he considered that the problem arose out of his employment task which involved bending and kneeling, lifting of heavy repair tools and heavy use of his knees and legs The respondent obtained a report from Mr G B Fitzpatrick, an Orthopaedic Surgeon, which is dated 23 August 1995 and states: "I saw this man regarding his left knee initially on 19.7.95 and most recently 17.8.95 when I operated on the knee. He had a torn medial meniscus in the left knee. The tear was a longitudinal one in the posterior horn of the meniscus and it had caught in the joint when he was in a kneeling or crouching position. In a person of this age this type of tear is not uncommon and indeed at surgery it was evidence that there were degenerative changes in the joint involving the joint surfaces as well as the menisci. The reason for his tear was partly trauma and partly the fact that the meniscus was becoming degenerate. The tear usually occurs with crouching and kneeling and particularly getting up from that position. I think there is a reasonable case for this being covered by Accident Compensation and this would certainly be in keeping with past decisions in such cases which are not uncommon in occupations like panelbeating, carpetlaying and building." The respondent referred the file to its Senior Medical Advisor Dr K Bremner who stated on 18 September 1995: "I must say that I do not feel this case should be accepted for cover. Clinically the meniscal tear appears to be of long standing, there being osteoarthritis changes present in spite of the subjective symptoms being present for only four months. I believe it is much more likely that the tear has resulted from an acute injury some years previously in the 56 year old panel beater. Accordingly, my recommendation would be to decline cover." The respondent advised the appellant on 29 September 1995 that it considered that as age had been the predominant cause of his injury, he was not entitled to cover pursuant to the provisions of section 10(2)(a) of the Act. The appellant applied for a 3 review of that decision. In addition to the information already on the file, Dr Howells, the appellant's General Practitioner provided a report dated 23 November 1995 which states: " This is to confirm that I support the above gentleman in his appeal to have this Accident Compensation Corporation injury to his left knee accepted. Mr Hopewell has a busy job as a panel-beater, whereby he is up and down on his knees a lot, and does not have any other outside work activities that would cause similar problems. The operative findings by Mr Fitzpatrick confirmed a meniscal tear and chondromalacia (copy enclosed), both which would support a traumatic cause for the problem, rather than a natural 'wear and tear' of the knee." In addition, he submitted a copy of Dr Fitzpatrick's operation note of 17 August 1995 which states: 'OPERATIVE PROCEDURE: Arthroscopy, medial meniscectomy left knee: Carried out at the Mercy Hospital today, 17.8.95. The arthroscope was introduced through an antero lateral portal. A good view was obtained. There was a small longitudinal tear of the posterior horn of the medial meniscus allowing the posterior horn to come forwards - this was full thickness - and was excised with basket punches, the fragments being flushed out. There was an area of Grade II and III chondromalacia involving the weightbearing area of the medial femoral condyle and the corresponding medial plateau. A few loose flaps were excised and basket punches. The anterior cruciate was intact and the lateral structures were all intact. There was some chondromalacia of the patella. There were a few small cartilaginous loose bodies which were also flushed out. Marcain was instilled into the joint before closing the puncture wounds with steri-strips. He is to be mobilised on crutches and can take weight when he is comfortable. Review in two weeks." The appellant appeared on his own behalf at the review hearing and gave evidence. The Review Officer found that on the basis of Dr Fitzpatrick's report, there was no evidence to support the view that the tear of the medial meniscus of the left knee was the result of a specific event at work or elsewhere but was substantially due to degeneration. The Review Officer accepted that for the purposes of section 7, the appellant's work did have a particular property or characteristic which caused or contributed to his injury but that the claim was excluded from the cover pursuant to section 10. The appellant applied for a review of that decision. 4 Mrs Stevens submitted that the appellant's personal injury met all three criteria of section 7 of the Act. She submitted further that there was no evidence to support the Review Officer's finding that the personal injury was caused wholly or substantially by the ageing process. She submitted that there was no evidence that the appellant had experienced any symptoms or problems prior to the pain which necessitated a visit to his doctor on 7 July with the result that he underwent surgery on 17 August 1995. She submitted that the lack of prior symptoms and problems supported a finding of trauma rather than affects of ageing. Mrs Stevens submitted that Dr Bremner's opinion was that there must have been an earlier accident of trauma but there is no evidence to support this theory nor has it been considered sufficient to request the appellant or his medical advisors to give an answer on this issue. Mr Barnett consented to the Court accepting additional briefs of evidence from Mr Fitzpatrick and Dr Howells, both of which confirmed the history of the appellant's problems. Mr Barnett submitted that the standard of proof is on the balance of probabilities and in a case such as this, the Court must be guided by the medical evidence. He submitted that the balance of the medical evidence supported the view that the appellant's condition is caused wholly essentially by the ageing process. He submitted that if that is the case then the claim for cover must be excluded by section 10(2)(a). I have considered the evidence and the medical reports. It has to be accepted that the nature of the appellant's work certainly involves the characteristic of repeated kneeling and bending and lifting heavy tools and that the appellant has been engaged in this type of work for a considerable number of years. While the appellant conceded that he did some gardening, I accept Mrs Steven's submission that the particular characteristics involved in his daily employment are not found to any material extent in his non-employment activities and that the Review Officer made no finding on this issue. I also accept Mrs Steven's submission that the appellant's personal injury was likely to be suffered to a significantly greater extent by a person performing his type of work than by persons generally. I consider that the respondent has misunderstood Mr Fitzpatrick's findings. While the respondent submits that on the basis of Mr Fitzpatrick's statement that "in a person of this age this type of tear is not uncommon and indeed at surgery it was evidence that there were degenerative changes in the joint involving the joint surfaces as well as the menisci. The reason for his tear was partly trauma and partly the fact that the meniscus was becoming degenerate. The tear usually occurs with crouching and kneeling and particularly getting up from that position." I consider that what Mr Fitzpatrick is endeavouring to explain is that the very nature of the appellant's work over the long period would be expected to cause degeneration in the knee because of the nature of the work and that it would therefore not be unusual having regard his long involvement in the work that a tear could occur because of the wear on the knee. I do not consider that what Mr Fitzpatrick was saying that it was simply a matter of old age that caused the 5 degeneration but that because of the appellant's age and the length of time he had been engaged in that employment, the problem was much more likely to occur and it did in fact occur in this appellant. Accordingly, I consider that the appeal should be allowed and the appellant is entitled to cover under section 7 of the Act. There will be costs to the appellant of $800. DATED at WELLINGTON this 3 day of February 1997 A W Middleton District Court Judge dca89-96.doc (nr)