McKennie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 75 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ELAINE MCKENNIE of Hastings Appellant (Appeal No. DCA 385/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at NAPIER on the 25th day of March 1998 APPEARANCES Appellant in person J D Palmer for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to an award of private hospital treatment costs. The background to the appeal is that the appellant, who was then aged 55, suffered an injury to her back when she slipped over on 20 October 1990. At the time she was then on annual leave from her employment. The appellant's General Practitioner, Dr DE Yates advised that the injury had resolved by the end of 1990 or early 1991. While the appellant lodged a claim with the respondent, which had been accepted, the original claim form appears to have been mislaid. In September 1994 the appellant began experiencing problems with her left hip with pain in the hip, leg and lower back which 2 restricted her movement. This was diagnosed as osteoarthritis of the left hip which was then replaced in an operation performed on 20 February 1995. On 5 September 1994 the appellant suffered another back injury as a result of a slip. She lodged a claim with the respondent in respect of that accident and the claim was accepted. In April 1996, the appellant consulted Mr F J Phillips because of continued pain and restricted movement in her lower back and hip, as a result of which Mr Phillips considered that there was a spinal in origin for the left hip pain. He recommended surgery by way of a total discectomy with anterior fusion. In April 1996 the appellant lodged an application with the respondent for approval of private hospital treatment costs for the back surgery. The claim stated that the surgery was required as a result of the 1994 accident. On 29 April 1996 the respondent declined the appellant's application on the grounds that the need for surgery was the result of long standing degenerative changes in the spine which could not be covered by the Act. Following a complaint by the appellant to the respondent's Managing Director and reference to the Complaints Division, the back surgery was undertaken on 9 May 1996 during the course of which Mr Phillips found that the appellant's discs, particularly in the region of L5/S1 showed "gross degeneration with instability". As a result of apparent filing difficulties within the respondent's office, the appellant was required to file another claim with the respondent in respect of the 1990 accident and this was accepted on 9 September 1996. On 16 September 1996 the appellant then made a further application for private hospital treatment costs incurred as a result of her back injury. This application indicated that the need for surgery was as a result of the 1990 accident. On 1 October 1996, the respondent declined the appellant's application on the grounds that prior approval had not been obtained for the treatment costs. The appellant applied for a review of that decision. When the application for review was filed, the respondent then administratively reviewed its file and on 7 February 1997 advised the appellant that it was making a new decision on the application for private hospital costs and declined the application on the grounds that the surgery was not required as a result of the accident but to degenerative changes present prior to the accident. The appellant applied for a review of that decision. At the review hearing the appellant produced a report from Mr Phillips, her Orthopaedic Surgeon in which he stated: "HISTORY: The history is one of a combination of low back pathology and osteoarthritis of the left hip. There is an injury to the back recorded by Dr Yates on 20.10.90. He confirms that there is no history of back complaint prior to that date. It appears that the symptoms of that injury resolved with appropriate conservative treatment by the beginning of 1991. 3 There then developed a problem with your left hip and symptoms were those of an osteoarthritis of the left hip. Total hip replacement was performed 20.2.95, operation note as follows: Left total hip replacement. AML prodigy stem, cement free. Antero lateral approach. Very small head and acetabulum. The acetabulum required widening and deepening to accept up to 52 mm to accept a 54 mm outside diameter shell. The femur was reamed to accept a large 15 mm prodigy stem. There was option here of using a 22 mm head to five extra thickness of plastic in the small cup. A stable reduction with good equalisation of leg length was achieved using a plus 7 mm neck length head. Stable in flexion and adduction. Layered closure. Suction drain. Total blood loss 500 mils. For protected weight bearing. If satisfactory, x-ray. Following this there was good improvement in some of the symptoms, however there were persistent left sided symptoms which did not resolve following the total hip replacement. Investigation was performed for loosening and for infection. There was no evidence of this complication. Symptoms then tended to develop also on the right side and I concluded that an element of the left hip pain was in fact spinal in origin. Spinal surgery was offered and performed 9.5.96 - operation note as follows: Total discectomy, anterior fusion L3/4, L4/5 and L5/S1. Laparatomy John Fleischl. Discogram at L5/S1 confirmed very degenerate disc. All three levels were clearly identified. The spaces cleared. There was gross degeneration with instability. After preparation, insertion of carbon cages with morselised femoral head bone graft, L3/4 and L4/5 a medium 11 mm giving good stability and at L5/S1 a large 13 mm giving excellent stability. Haemostasis satisfactory. Layered Closure. Fluids and antibiotics as charted. Following this surgery most of the left sided hip symptoms resolved. There have however been some settling in symptoms as the fusion has proceeded to stabilisation. CONCLUSIONS: I believe there has been a problem in distinguishing between injury and degenerative disease. It appears that Dr Summers takes the point of view that because the symptoms from the injury of 1990 had resolved by the beginning of 1991, that any new symptoms must be due to another injury. I would state that this is quite a false premiss. One must distinguish between the symptoms of an injury and the actual pathology i.e. it is not unusual in back injury to have an injury or a series of injuries which lead to internal pathology i.e. annular disc tears, disc protrusion, premature dehydration and loss of disc function. There may or may not be acute symptoms associated with these injuries. The symptoms may in fact be significantly improved for a variable period of time. The pathology however remains i.e. the dysfunction at the disc. It is therefore quite wrong to take the point of view that your subsequent spinal symptoms must be due to degenerative disease and not as a result of the injury of 1990. 4 There is no doubt that degenerative changes can occur within the spine with no symptoms whatsoever, and are picked up on routine x-rays taken for other reasons. However Dr Yates has recorded that you were totally symptom free in your spine despite working as a Registered Nurse which required alot (sic) of lifting and bending and that the first symptoms ever complained of in relation to your spine followed the fall on 20.10.90. Over a period of time an injury to the disc here would present as degenerative change just the same as if any other weight bearing joint had been damaged, over a period of time the x-ray appearances are those of degeneration. Degeneration at one level in the spine will lead to extra stresses at adjacent levels. It should also be noted that an osteoarthritis hip will aggravate any spinal dysfunction and it is often the case that there is difficulty in distinguishing between symptoms in the hip region as to whether or not they arise from the hip itself or from the spine. From the history and presentation, I would support Miss Mckennie's claim that her spinal complaint can be directly related to the incident in 1990, and lead to her symptoms. The symptoms resolved, the pathology did not." The Review Officer had referred the issue to the respondent's Medical Advisor, Dr N Smidt whose report of 21 August 1997 stated: 'Is the current request for Private Hospital Surgery as a result of Date of Accident (DOA) 1990? Late lodged claim for back problem Date of accident 24.10.90. Normal SLR Dr Yates Osteopathy 24.10.90 - 25.12.90 Original accident had resolved by end of 1990/beginning 1991. In ensuring 33 months presented to General Practitioner 3 times for non ACC purposes. Condition did not necessitate orthopaedic referral. 1994 Injured Person (IP) presented with back pain. Mr Phillips Left hip identified as having arthritis and requiring surgery. IP walking with L) limp, fixed flexion deformity. After satisfactory Total Hip Joint Replacement IP still had a tendency to lean - noted to be likely to be aggravating IP's back. Element of L) hip pain concluded to be spinal. Spinal surgery was offered and performed 9.5.96. Gross degeneration found. DISCUSSION Is IP's recent requirement for back surgery a result of DOA 1990 or ageing degeneration A paper by Lipson (Al) discussing ageing versus degeneration takes the view that a distinction cannot be made between age related degenerative changes and those of pathological (ie abnormal process eg injury) origin. Recent correspondence from Mr Phillips suggests that he would agree that making a distinction between age related degeneration and that of injury is not very practical in situations such as this. As this issue cannot be addressed on the basis of xrays the other relevant, practical consideration must be used to assist in reaching a decision. 1. Xray changes of a degenerative nature are found in 40% of people by age 35 (B) years and these changes correlate poorly with symptoms (97%) of 50 year olds have disc degeneration) (A2) 2. Changes in the intervertebral disc occur in all people as a result of ageing (as do changes in other back structures). 3. The 1995 Volvo Award in Clinical Sciences Paper (identifies genetic and early environmental factors as most important in disc degeneration. 4. IP's 1990 injury is not indicated to be a fracture and recovery was such that there was no reason to consider IP had not recovered to (or close to) pre-injury state. 5 . The state which appears to have precipitated backpain (leading to surgery requirement) is the hip osteoarthritis. Mr Phillips indicates the hip problems would have aggravated any spinal changes. This is certainly a real possibility as the constant abnormal posture resulting from leaning and abnormal walking constitutes a major stress on the spine (and can lead to spinal problems in a young spine). As noted by Lipson (A); some feature occurring during the process of degeneration can result in a clinical complaint. CONCLUSION In my view the chronological series of events suggests that - . IP's back was ageing as it does in all people. 6 IP had not been presenting with ongoing back problems until the difficulties resulting from hip osteoarthritis arose. Recover had occurred from 1990 event on a practical functional basis. The event precipitating experience of ongoing back pain in an ageing spine was the hip osteoarthritis. I accept that the injury of 1990 caused IP a back problem at the time but I am not persuaded that it has substantially contributed to IP's recent requirement for back surgery. My conclusion is rather that the ageing/degenerative of IP's hip causing stresses on IP's ageing/degenerative spine is the substantial cause of IP's recent requirement for back surgery." The Review Officer held that there was insufficient medical evidence to establish a causal link between the accident in 1990 and the need for surgery some six years later. It is against that decision which the appellant now appeals. In her submission the appellant stated that both her General Practitioner Dr Yates and Mr Phillips, who had personal knowledge of her condition and had attended throughout, were convinced that the spinal complaint could be directly related to the incident in 1990. She submitted that while she had had a hip problem, that only lasted a few months and was remedied by the hip replacement operation. The appellant disagreed with Dr Smidt whose opinion was based purely on the documents on the file and without the benefit of an examination of the appellant. Mr Palmer submitted that the onus is on the appellant to establish that the requirements for the surgery arose out of the accident suffered on 20 October 1990. He submitted that there was clear evidence of degeneration in the appellant's back. He submitted that pursuant to section 8(2)(a), cover under the Act can only be extended where an applicant has suffered personal injury caused by an accident from which it follows that private hospital treatment can only be available for injuries arising directly from such an accident. He submitted further that section 10 disqualifies an applicant whose personal injury is wholly or substantially caused by gradual process, disease, or infection is not covered by the Act. He submitted therefore that where a degenerative injury or condition is exposed or aggravated by an accident, it is excluded from cover rather than the accident is not the substantial cause of the injury but merely a contributing factor. He submitted that the reports of Dr Yates and Mr Phillips were inconclusive. He submitted that Dr Yates's conclusion that the need for surgery was the result of the 1990 accident was based on the fact that prior to 1990 the appellant had not suffered back problems. While I have some sympathy for the appellant's position in that it would appear to her that the accident in 1990 caused all her subsequent problems, the provisions of the Act and, in particular section 10, have to be satisfied. Mr Phillips conceded that spinal degeneration can occur undetected and can be brought to light by an incident such as the 1990 accident. While it is not possible to say that in 1996 the significant degeneration, then reported by Mr Phillips, had occurred between 1990 and 1996 as the disc which was damaged in 1990, was L2/3 while it was L5/S1 which showed the greatest sign of degeneration during the surgery. However, I am conscious of the fact that Mr Phillips also noted that there was gross degeneration at all levels so that the degeneration may have occurred following the 1990 accident or may have been present prior to that. Section 10 of the Act provides: "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 - ... (c) a consequence of personal injury or treatment for personal injury [covered by this Act]." (Emphasis mine) The section then provides: For the avoidance of doubt it is hereby declared that - ( a) Personal injury caused wholly or substantially by the ageing process; is not covered by the Act." As I have said, it is not possible from the medical evidence to say that it was the accident which is wholly responsible for the appellant's ongoing symptoms which required surgery. There is clear evidence from the medical reports that there were serious degenerative changes in the appellant's spine which may or may not have been present prior to the accident in 1990 and may have been exposed by the accident. However, Mr Phillips considered that there were gross degenerative changes at all levels of the spine which would seem to indicate that the appellant's problems were wholly or substantially as a result of a gradual ageing process rather than as a result of the accident. The appeal must therefore be dismissed. DATED at WELLINGTON this 90 day of April 1998 A W Middleton District Court Judge dc385-97.doc (nr)