Franicevic v Accident Compensation Corporation

IN THE DISTRICT COURT AT NELSON (2015] NZACC 190 ACR 245/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN E FRANICEVIC Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 2 June 2015 Appearances: No appearance by the appellant S L Churstain for the respondent Judgment: 7 July 2015 RESERVED JUDGMENT OF JUDGE AN MACLEAN Background [1] This is an appeal against a review decision dated 27 March 2013 in respect of the declining of cover and surgery costs by the respondent. [2] At a callover last year the appellant appearing on his own behalf noted that he had no further evidence he wished to adduce and the possibility of the matter being dealt with on the papers was alluded to. The appellant renewed the request for the matter to be dealt with on the papers but absent any response from the respondent as to its view on that I directed that the matter be called before me on 2 June 2015 in Nelson with counsel for the respondent present and the attendance of the appellant excused. Ms Churstain appeared for the respondent and made no further submissions to the Court other than adopting the written submissions already filed. [3] The particular facts giving rise to the issues arising which are not in dispute are that on 25 November 2011 the appellant, then in his mid 60s whilst engaged in his employment injured his right knee when he slipped off the top step of a truck he had been driving landing heavily on the ground and twisting. [4] It was clearly a rather disturbing incident. In the appellant's own words at the review hearing : I fell a metre to the ground on my right leg - my left still stuck behind the door. My body twisted to the right as I held on to the door frame. When I took stock of things my foot seemed to be almost at 90 degrees to my leg. I thought I must have dislocated my knee ... but when I slowly and painfully straightened my leg it didn't feel too bad. [5] He then described how later in the day his knee started to swell but he soldiered on with a swollen sore knee because of the pressing demands for repair of vehicles which had to be carried out noting "The only concession to my injury being that I drove to work whereas I normally rode my bike". [6] The pain gradually became more and more disabling and after an initial attendance on his general practitioner who diagnosed a suspected medial ligament strain and organised an x-ray he was referred to a specialist, Mr Taylor, on 7 March 2012. [7] There was a series of further consultations with Mr Taylor which in due course resulted in him lodging an application for approval for surgery for a meniscal tear which was declined by the respondent on 27 July 2012. [8] When he appraised his general practitioner of that declining of cover a further claim was lodged for which cover was declined on 13 November 2012. [9] Clearly the Review decisions and the issues arising stem from the same incident on 25 November 2011. The Issues to be Resolved [10] The issues in respect of both decisions are essentially the same and put shortly is whether or not on the balance of probabilities it has been established that the review decision confirming the respondent's decisions was wrong or put another way has the appellant established that his need for surgery on his right knee is causally connected to the original incident or whether in terms of s 26 of the Accident Compensation Act 2001 his symptoms and need for surgery have been caused wholly or substantially by a gradual process, disease or infection. [11] As ACC v Ambros' demonstrates it is open to the Court to take a robust approach as to the inferences that can be drawn from the available evidence provided as that there is sufficient material pointing to proof of causation on the balance of probabilities. [12] As many cases have pointed out a temporal connection is not of itself determinative although clearly in this case as the respondent's advisers concede the very painful symptoms which arose quite soon after the incident were closely connected with it. The Review [13] The reviewer when dismissing the appellant's application noted the causation element spelt out in Ambros and concluded on the evidence available that it was more likely than not that the right knee condition "is affected by medial compartment osteoarthritis and that the meniscal tear is a consequence of the osteoarthritis and was not caused by the accident" and that he "is suffering from an underlying degenerative condition of the knee including degenerative meniscal pathology which has been rendered symptomatic by the accident of 25 November 201 1 but not caused by it". [2008] INZLR 340 The Appellant's Case [14] Perusal of the review decision and in particular reports from Mr Taylor an orthopaedic surgeon who has been consulting and treating the appellant and reporting to his general practitioner are set out in particular in the assessment report and treatment plan completed by Mr Taylor in support of the request for funding to carry out a right knee arthroscopy and debridement. [15] Mr Taylor, while noting medial compartment osteoarthritis changes and a macerated and extruded medial meniscus with the osteoarthritis being a pre-existing factor opined however that the incident on 25 November had caused the medial meniscal tear. Mr Taylor did note that in addition to the surgery for which funding was sought that it was likely that in due course there would need to be a knee joint replacement probably as a result of symptomatic degenerative joint disease and not from a meniscal tear. [16] There is no other objective medical analysis in support of the proposition that the original incident was the cause of the meniscal tear. The Case for the Respondent [17] By way of contrast there is some well reasoned evidence from the experts consulted by the respondent. [18] In particular Mr Ray Fong, orthopaedic surgeon who following receipt of the application for funding and review of the various medical records and radiological reports opined as follows: The client presented initially to a GP on 16/12/2011 and was noted to have medical joint line tenderness. No mechanical symptoms are reported or an effusion as would be expected with an acute traumatic meniscal tear. The surgeon reports an effusion, medial joint line tenderness and positive meniscal sign. An x-ray (20/12/2011) reports slight narrowing of the medial joint space. An MRI (24/3/2011) reports a macerated expanded and extruded medial meniscus with a tear of the posterior horn and a tiny radial tear of the lateral meniscus. Also reported is a moderate to large area of full thickness chondral loss in the medial femoral condyle with a small area of full thickness loss on the lateral tibial plateau. Maceration and extrusion of the meniscus are generally considered to be degenerative changes. Extrusion of the meniscus can only occur if the integrity of the circumferential fibres of the meniscus is lost due to degeneration. The joint forces can then push the meniscus out of the joint. It must be remembered that this process occurs in the absence of trauma due to degenerative change. The presence of full thickness chondral loss indicates that there is an established degenerative change in the joint such that the articular cartilage has worn away to its full thickness. Degenerative meniscal tears can be present without being symptomatic and in this case the lateral meniscal tear reported on MRI would appear to illustrate this point as no lateral symptoms or signs are reported. Considering the initial presentation with no effusion or mechanical symptoms and the radiological findings of established degenerative changes in the knee which would have been present for a number of years it would appear the client is suffering from an underlying degenerative condition of the knee which has been rendered symptomatic by the event of 25/11/2011 but not caused by it. [19] Further on 13 March 2013 Dr Clifton the Branch Medical Adviser and general practitioner opined: It is not disputed that right knee symptom onset was temporally associated with the accident event of 25 November 2011 and cover was initially approved for a sprain injury. It is also not disputed that Mr Franicevic has medial meniscus pathology in his right knee. [20] That report went on to discuss the MRI which confirmed significant degenerative changes in the medial compartment as suggested by medial joint space narrowing reported in x-ray of 20 July 2011 and also cited literature which: Suggests that clients with asymptomatic and symptomatic osteoarthritis will have a 60-90 percent chance of having associated degenerative meniscal pathology and that degenerative tears include horizontal tears, oblique and flat tears, complex tears and meniscal maceration ... [21] Further: It is clear from the imaging that the underlying degenerative disease in Mr Franicevic's right knee is longstanding and that it is likely that the meniscal pathology has arisen in that context. [22] She also observed that Mr Taylor noted in the application for funding that his patient might well have ongoing symptoms despite the proposed surgery with a need for eventual knee joint replacement due to symptomatic degenerative joint disease. The Court's Conclusions [23] The reality here is apart from the brief assertions of Mr Taylor and the appellant's own views there is little by way of balance compared with the well reasoned assessment of the experts consulted by the respondent. [24] Accordingly there just is insufficient information for the Court to be persuaded that the appellant's view is more likely than not to be the true situation. (25] Accordingly the appeal is dismissed. Judge A N MacLean District Court Judge ACR 245-13-Franicevic.doc(aw)