Bell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 105 / 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 CATHERINE FLORENCE BELL of Takapuna, Auckland Appellant (Appeal No. DCA 308/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of April 1997 APPEARANCES G D Stringer for appellant A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON At the conclusion of the hearing I gave leave to Mr Stringer to provide further submissions because I had given leave to the respondent to introduce a report from Mr G F Heynen, a Reconstructive Surgeon which had not previously been available to the appellant. I have now received all the submissions. The facts which give rise to this appeal are that the appellant lodged a claim with the respondent on 22 December 1995 for a right quadricep strain suffered in a fall on 4 December 1995. In March 1996 the appellant applied for approval for private hospital treatment costs for a total hip replacement. Mr Heynen gave a diagnosis of 2 osteoarthritis. On 21 March 1996 the respondent declined the appellant's request for private hospital expenses because it considered that there was no evidence of direct significant injury to the appellant's hip at the time of the accident. The appellant applied for a review of that decision and provided a report from Mr OR Nicholson, an Orthopaedic Surgeon. In his decision the Review Officer concluded that although the accident may have brought to light a pre-existing osteoarthritis, this condition was substantially one of the disease and was excluded from cover by section 10 of the Act When the claim was initially lodged it was supported by a report from Mr Heynen which is dated 13 March 1996 and states: 'Mrs Bell is an 84 year old woman who presents to me with a very short history of problems related to her right hip. She denies any symptoms whatsoever and maintained an independent and normal life prior to a fall where she fell heavily on her right side in November of 1995. Subsequent to that she has had increasing symptoms in her right hip, and clinically and radiographically today, she has significant osteoarthritis. There is no doubt that her osteoarthritis pre-dated her fall, but Mrs Bell adamantly denies that she had symptoms, and hence I am sure that the fall basically aggravated her condition to the extent to where she is in danger of losing her independence. Mrs Bell wishes me to make an application through the ACC for funding of an operation in the form of a hip replacement through the private sector." In a report to the respondent on 18 March 1996 the appellant's General Practitioner, Dr Railton stated that the appellant had no pain prior to her fall. He considered that the appellant had osteoarthritis of the right hip. The appellant was examined by Mr G H Perry, a Rheumatologist whose report of 13 January 1996 to Dr Railton states: "Thank you for the opportunity of seeing Mrs Catherine Bell with regards to the right hop pain which developed with a slip and fall on a bank in her garden (sic) November 1995. There had been no earlier pain of this type and she has not experienced back pain. ! Pain is localised in the right groin and then onto the front and lateral aspect of the right thigh at times to the level of the knee. There has also been pain at the back of the right thigh associated with buttock or perhaps sacro-iliac region pain at times. The prominent limp has been present only since the accident. Normally Mrs Bell is a good walker and very active. She is now very limited regarding walking. There can be discomfort or pain at night particularly if she lies on the right side. Sitting is not a problem but there is the difficulty getting going again after sitting any length of time. She is coping with lighter house activities but needs rests between activities. Coughing or sneezing is not a problem. 3 Naprosyn 250 mg B.D. was not effective. On trying Naprosyn again she had a nightmare and thought the medication could have been responsible. Physiotherapy with heat was comforting. She was worse after traction. Forward flexion of the lumbar spine is full range. Straight leg raising is approximately 80 degrees. Neurological findings in the legs are normal. There is downward tilt of the left side of the pelvis and clinical right sacro-iliac rotation, which could well be part of her problem. The right hip flexes to 90 degrees and then shows restriction in rotation and general movement, particularly adduction and internal rotation. X-rays of the right hip, 28.12.95, show narrowing of the joint space, early cystic change and some sclerosis and a prominent lateral osteophyte from the acetabulum. I have not seen the radiologist's report but would classify this as early to moderate arthritic change, likely to be osteoarthritis. Lumbar spine x-rays 23.1.96, show the degenerative spondylolisthesis L5-S1 and facet joint osteoarthritis or degenerative change. The depression of the superior plate of L2 with L1-2 narrowing may relate to the reported compression fracture in 1991. She has had no problem with the low back form that time. There is no earlier of hip symptoms. I have carefully mobilised the right sacro-iliac joint in that this could be playing a part in the whole problem and was interested to see that Mrs Bell, at least temporarily, is walking without a limp and is feeling much more comfortable. This suggests that the mechanical sacro-iliac problem is more important to her at this stage than the arthritic change in the right hip. We shall have to see at follow up if this proves correct. I have arranged follow up for one week, earlier if necessary. Mrs Bell has a prescription of Brufen and Panadeine should this prove necessary." The report from Mr Nicholson which was submitted to the Review Officer states: I interviewed the abovenamed as arranged on 12 June 1996. HISTORY: Prior to the fall in the garden at the end of November 1995 Mrs Bell could only be described as having been remarkably independent and active for a person : of her years. She lives in a unit adjacent to her daughter. She did not experience any symptoms in bed and was satisfactory in the mornings. She was able to dress and put on her stockings, cut her toenails, get in and out of the bath and walk up stairs without difficulty. 4 She was able to do all her own housework including getting to low cupboards, being able to clean the bath and clean windows, getting up on a stool to do so. She walked to the shops in Takapuna three or four times a week - this is 3-4 kms for the round trip. She was able to travel overseas on her own and last did so at Christmas 1994 going to Europe. In November 1995 she had been in the garden weeding, kneeling on a mat. The garden was at the top of a scoria embankment and while coming down she fell, twisting as she did so, trying to save herself. She got up and was "not too bad". On the following day she was "a bit stiff in the groin" but she "tried to dismiss it". She continued with her ordinary activities. Her daughter who is a schoolteacher keeps a diary and also enters items in the computer. She provided me with a copy of the notes she had made - this is enclosed. The notes which she made would have been completed at the latest at the end of December so that they were fresh both in Mrs Bell's and her daughter's mind. When she attended Dr Railton on 20.12.95 she had stiffness in the right leg and was unable to cut her toenails. There was pain beside the groin shooting down inside the leg with difficulty in walking and restricted mobility. She was seen by the physiotherapist on that day who was unsure what to do and wanted to consult a colleague before carrying out definitive treatment. Heat treatment was given. On 22.12.95 traction was applied to the leg by means of a strap going round the leg and another strap round the physiotherapists back. On going to the car after this Mrs Bell experienced pain in the leg and had to stop. She had difficulty getting into the car. They stopped for coffee on the way home and she found that sitting was "agony". Her symptoms became more marked. 5 On 27.12.95 she telephoned her own doctor to find that he was away and was referred by the Answerphone message to Shorecare. She was able to walk only with assistance from her daughter and on standing after sitting was unable to walk straight off because of the pain and some difficulty in balancing. The doctor at Shorecare suspected a fracture (presumably of the hip). X- rays showed arthritis of the hip. Her symptoms continued to increase. It was felt that her symptoms could have been coming from her back and she was referred to Dr G H Perry. In the letter to Dr Railton of 30.1.96 Dr Perry notes that Mrs Bell developed right hip pain following a slip and fall on a bank in her garden in November 1995. He further noted "there had been no earlier pain of this type and she had not experienced back pain". It was noted that the pain was localised in the right groin and on to the front and lateral aspect of the right thigh, at times to the level of the knee. It was noted that "the prominent limp has been present only since the accident". On examination he noted that there was a full range of flexion in the lumbar spine and restricted movement in the right hip. X-rays of the right hip on 28.12.95 are reported as showing degenerative changes which he regarded as being of a moderate degree. X-rays of the lumbar spine on 23.1.96 showed a degenerative spondylolisthesis of the L5-S1 level with degenerative changes in the posterior (facet) joint. There was depression of the superior border of the L2 vertebra which "may relate to the reported compression fracture in 1991". Mrs Bell informed me that she had injured her back in 1991 and although bed rest for several weeks was advised she rested only for a short time and even then got up for meals and to go to the bathroom. These symptoms resolved completely. Mrs Bell felt that manipulative treatment from Dr Perry gave a little improvement in her symptoms - it seems from his report that his assessment of the improvement was rather greater than was in fact the case. A right total hip replacement was carried out on 1.4.96 following which Mrs Bell has made excellent progress - she was an inpatient for only three days. On 27.12.95 she telephoned her own doctor to find that he was away and was referred by the Answerphone message to Shorecare. She was able to walk only with assistance from her daughter and on standing after sitting was unable to walk straight off because of the pain and some difficulty in balancing. The doctor at Shorecare suspected a fracture (presumably of the hip). X- rays showed arthritis of the hip. Her symptoms continued to increase. It was felt that her symptoms could have been coming from her back and she was referred to Dr G H Perry. In the letter to Dr Railton of 30.1.96 Dr Perry notes that Mrs Bell developed right hip pain following a slip and fall on a bank in her garden in November 1995. He further noted "there had been no earlier pain of this type and she had not experienced back pain". It was noted that the pain was localised in the right groin and on to the front and lateral aspect of the right thigh, at times to the level of the knee. It was noted that "the prominent limp has been present only since the accident". On examination he noted that there was a full range of flexion in the lumbar spine and restricted movement in the right hip. X-rays of the right hip on 28.12.95 are reported as showing degenerative changes which he regarded as being of a moderate degree. X-rays of the lumbar spine on 23.1.96 showed a degenerative spondylolisthesis of the L5-S1 level with degenerative changes in the posterior (facet) joint. There was depression of the superior border of the L2 vertebra which "may relate to the reported compression fracture in 1991". Mrs Bell informed me that she had injured her back in 1991 and although bed rest for several weeks was advised she rested only for a short time and even then got up for meals and to go to the bathroom. These symptoms resolved completely. Mrs Bell felt that manipulative treatment from Dr Perry gave a little improvement in her symptoms - it seems from his report that his assessment of the improvement was rather greater than was in fact the case. A right total hip replacement was carried out on 1.4.96 following which Mrs Bell has made excellent progress - she was an inpatient for only three days. She is now using an exercycle and is gardening as well as doing all her household activities. 7 Discussion and Opinion: In my opinion the onset of symptoms in the right hip must be held attributable to the accident sustained at the end of the November 1995. It is well accepted that the X-ray demonstration of degenerative changes in any joint does not meant that inevitably symptoms will be experienced, nor can the severity of the symptoms be related directly to the X-ray changes. Some with marked changes in the X-ray may have no symptoms, while others with minor changes and even on occasions with normal X-rays may have significant problems. I have on many occasions seen patients with osteoarthritis hips in whom the symptoms are significantly more marked on the side in which the X-ray changes were much less. In this particular case the opinion expressed above in regard to the X-ray changes is confirmed in that Mrs Bell does not have any symptoms in the back despite the marked changes described in the X-ray report and the presence of a degenerative spondylolisthesis - this is forward displacement of the fifth lumbar vertebra on the sacrum. Any joint which is affected by degenerative changes is more likely to be strained than a normal joint. A reason for this may be that there is some limitation of movement but not to the extent that function is restricted and if the fall forces the range of movement pain may be initiated. The fact that the pain may be more marked after a few days can be explained because a traumatic synovitis develops as a result of the injury and this takes 24- 48 hours. In some instances the development of symptoms may be temporary and on other occasions symptoms are initiated which persist and increase as occurred in this case. The application from Mr Heynen to ACC for funding while factually correct fails to support her claim as it does not indicate a high level of activity which she was able to maintain and which was certainly greater than would ordinarily be anticipated in a person of her age." Prior to the appeal hearing the respondent arranged for Mr Heynen to consider the reports and in his report of 25 March 1997 he states: "Thank you for your letter dated 11 March 1997 relating to this patient. I apologise for the delay but I have been away at a conference. 8 Mrs Bell is an 84 year old lady who presented to me in March 1996 with a history of having fallen heavily in November of 1995. Since that time she described increasing symptoms of pain in her right hip which limited her ability to be mobile and also affected her sleep. She was at the time noticing increasing stiffness, and required taking regular Panadeine. Clinical examination and x-rays at the time confirmed significant osteoarthritis in the right hip. The degree of arthritis of Mrs Bell's hip was significant to the extent where it was highly unlikely that the changes would be present from November 1995 through until March of 1996. These changes must have been present prior to her fall. However it is a very common occurrence that patients who have arthritis are unaware of their condition until a triggering injury causes a cascade of problems which lead to rapid deterioration in terms of symptoms and requirement for surgery. Mrs Bell's condition was related entirely to the arthritic right hip in terms of her pain and stiffness. These symptoms had not been present, according to Mrs Bell until her fall in November 1995, and hence her fall would have precipitated her symptoms. They did not cause her arthritis, and her arthritis predated her fall. The ACC in the past has taken into account pre-existing conditions and exacerbations of pre-existing conditions and I gather Mrs Bell is claiming for coverage under this clause. Mrs Bell underwent a right total hip joint replacement in April of 1996, and made an uncomplicated recovery. The findings at the time of her surgery were significant osteoarthritis in the right hip. The indication for her surgery was osteoarthritis in the right hip. I trust this is satisfactory for the Corporation." Mr Stringer submitted: 1 . That prior to the fall the appellant was independent and was able to take her life with complete mobility 2. : That when she consulted Dr Railton some three weeks after the fall she had stiffness in her right leg, pain in the groin and shooting pain down inside of the leg which caused difficulty in walking and restricted her mobility. 3. That a course of physiotherapy gave only limited relief. 4. That Mr Heynen confirmed that the appellant had denied any symptoms prior to her fall. 9 5. That Mr Nicholson attributed the onset of the symptoms to the fall in November 1995. 6. That the Review Officer found that the hip replacement was the result of a substantially pre-existing condition and was not due to personal injury. Reference to dictionary definition of "substantially" means "essentially, in essence, in essentials, in substance, in the main, largely, materially, to a large extent" and another definition is "considerable, of real value, sold big, important, really existing". 7. That on the basis of Mr Nicholson's report the Court should accept that the onset of symptoms was attributable to the accident and that while x-rays demonstrate degenerative changes it does not mean that symptoms will inevitably be experienced. Mr Barnett submitted: 1. That it is common ground that the fall brought to light the symptoms the appellant then suffered in the sense that she was asymptomatic prior to the accident and symptomatic afterwards. 2 . That if the injury suffered by the appellant was wholly or substantially caused by disease then it is not covered by section 10 of the Act. 3. That section 10 would apply where there is no accident at all, that is, where the personal injury is "caused wholly" by disease but section 10 also applies where the personal injury is "substantially" caused by disease which means that there will be some other contributing factor which may be an accident. 4. That the Court held in Ngawati v ARCIC (41/96) that the 1982 Act provided a lower threshold for cover than the 1992 Act. In that case the Court said: "I agree with Mr Cleary's submission that the words of s.10 can be contrasted with the lower threshold in terms of cover provided in s.2 of the Accident Compensation Act 1982 in which the threshold is caused exclusively by disease'. I agree with Mr Cleary's submission that if the appellant suffers from lumbar spondylosis caused substantially by other than from work or accident, the cover must be declined." 5. That regard should be had to Mr Nicholson's opinion in which he said "in my opinion the onset of symptoms in the right hip must be held attributable to the accident sustained at the end of November 1995." That while Mr Nicholson made that statement it does not resolve the legal issue in favour of the appellant nor does Mr Nicholson's advice that some osteoarthritis hips remain asymptomatic for the reason that: 10 (a) section 10 is concerned with causation of personal injury and not of symptoms. Under the Act, personal injury is defined as "physical injury" so that degenerative change in the joints such as osteoarthritis is by itself a physical injury and therefore a personal injury. Accordingly, it can be taken that the symptoms occurring for the first time also reflect some additional injury (however, minor) occurring but it would be artificial to ignore the presence of osteoarthritis and focus only on the additional injury occurring at the time of the accident; (b) that while Mr Nicholson says the symptoms are attributable to the accident that does not exclude the possibility that symptoms are also attributable to the osteoarthritis. That the respondent does not claim that the disease was the whole of the personal injury or the whole of the cause but that pursuant to section 10 it is a substantial cause to be considered alongside the contributing accidental cause. 6. That in order to undertake the exercise of ascertaining whether the personal injury was a substantial cause of the personal injury it is necessary to look at the evidence and in particular: (a) the fall did not appear to involve significant force or trauma, particularly so as it occurred in November 1995 and the appellant did not seek medical treatment until 19 December 1995; (b) Mr Heynen found significant osteoarthritis in the right hip during the course of surgery; (c) that Mr Heynen's initial request for private hospital costs gave the diagnosis as osteoarthritis right hip and he subsequently noted that her arthritis predated the fall which had precipitated her symptoms. The issue is whether the appellant's personal injury was caused wholly or substantially by her arthritis. The situation is governed by section 10(1) which insofar as it applies to this appeal states: "10(1) For the avoidance of doubt it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is- ..." I have outlined the submissions of both counsel with some particularity because these explore all the available evidence. The requirements of the 1992 Act provide a much higher threshold for cover as the Court stated in the decision in Ngawati. The Court must therefore be guided substantially by the medical evidence. While it is clear that this appellant had experienced no difficulties until the time of her fall, the fall clearly brought them to light and when surgery was subsequently undertaken, disclosed significant arthritis in the right hip. In many cases of this nature, a person is asymptomatic until an incident such as a fall brings to light a pre-existing problem 11 which has not previously caused difficulties. While I am sympathetic to the appellant's position in that having regard to her age and her previous ability to carry out her ordinary daily living without difficulty, she has now been faced with this problem as a result of the fall. However, I am satisfied on the medical evidence that the continuing symptoms she suffered were substantially the result of the pre- existing osteoarthritis condition and that her appeal must therefore fail. The appeal is dismissed. DATED at WELLINGTON this 26 day of May 1997 A W Middleton District Court Judge dc308-96.doc (nr)