Wang v Accident Compensation Corporation

BEFORE THE DISTRICT COURT AT AUCKLAND Decision No. [2014] NZACC 232 UNDER the Accident Compensation Act 2001 (the Act) IN THE MATTER of an appeal under Section 117 of the Act BETWEEN GANG WANG (ACR 175/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard: 8 September 2014 Court: Judge J A Smith Appearances: Mr M Darke for appellant Ms FL Becroft for Accident Compensation Corporation (the Corporation) Date: 23 September 2014 RESERVED DECISION OF JUDGE J A SMITH A. The s117 suspension decision of the Corporation and the review officer is quashed and the appeal is successful. B. Mr Wang's wrist pain is the result of tears to the lunotriquetral ligament and TFCs, and are related to his injury of 2007. For the sake of clarity, the ulnar positive variance is not wholly or substantially the cause of his condition or the injuries caused. 2 C. The decision of the Corporation of 1 November is quashed and entitlements from 29 November 2010 continue. D. Costs are reserved. If the parties cannot agree costs, application is to be made within 20 working days; reply with 10 workings days; final reply, if any, a further 5 working days. REASONS FOR DECISION Introduction [1] Are the tears to the lunotriquetral ligament and TFCs and associated conditions (if any) related to Mr Wang's wrist injury of February 2007? Scope of this appeal [2] This is a suspension case under $117, and the Corporation does not dispute that Mr Wang suffered an injury in January 2007. He did not consult with a doctor until May 2007 and DeQuervain's was a possible but unlikely original diagnosis. X- rays showed no fracture. The mechanism of the injury [3] Although there has been lack of clarity around this, there does not appear to be a dispute that Mr Wang injured his hand during a mishit with a hammer. Apparently he struck with his hand either the concrete or wood post of the fence structure. It was his ulna aspect of the right wrist which struck, and he developed a hyperextension injury as the wrist was in a position of pronation. Unfortunately there has been continued mis-description of the accident, including by the review officer, and it is important to note that it was his hand which struck the object. [4] He went to Eastridge White Cross Medical Centre immediately and a claim to ACC was made. An MRI undertaken on 24 June 2008 showed that no tear was identified involving the scapholunate ligament This was a plain scan, and although a 2mm ulna positive was noted on his right wrist there was no cyst or subchondral sclerosis identified. The matter was referred again for a further scan in June 2009 (a year later). At this time the scan required dyes and significant changes were noted. [5] Much has been made of the distinction between the two scans, but I accept that the significant difference arose because of the use of the dyes. It is noted that: ARC 175/11 Wang v ACC (Decision) Contrast filled the radiocarpal joint and "did not enter the distal radioulnar joint or the midcarpal joint during the fluoroscopic examination. ... ...A small amount of contrast is seen extending through the midportion of the lunotriquetral ligament. The scapholunate ligament is intact. There is no contrast in the distal radioulnar joint." The triangular fibrocartilege is thin centrally however no full thickness tear is dentified. There is a mild inhomogeneity of the cartilage signal on the ulnar aspect of the lunate, however no subchondral cyst formation or oedema is identified. ... [6] Mild synovitis was probable, and mild tendonosis. There was also a possibility of synovitis at the radiocarpal joint [7] The conclusion was a pinhole type tear in the central portion of the lunotriquetral ligament with a very small amount of contrast extending into the midcarpal joint. [8] Dr Tasman-Jones, specialist, confirmed a small pinhole tear in the central TFC, with evidence of ulnar impingement between the ulnar head and lunate. The Corporation, on the basis of internal advice, determined to suspend payments and this was notified on 20 January 2010. [9] Not unnaturally, given there was no medical evidence to support it, the decision of the Corporation was quashed on review. The Corporation then sought a further opinion from Dr Tasman-Jones, who advised on 14 May 2010: ... it was only when the scan was repeated with the addition of an Omnipaque arthrogram that tears to the lunotriquetral ligament and TFC were demonstrated. Plain MRI scans often miss funotriquetral ligament tears, and the addition of dye increases the changes of picking up these lesions. Some tears to the intercarpal ligaments and TFC are only demonstrated at arthroscopy and therefore a normal MRI scan reduces the chance of a significant tear to intercarpal ligaments and DRUJ does not exclude these injuries. . . . In my opinion Mr Gang Wang's present symptoms are most likely related to his injury in 2007. [10] The Corporation then forwarded Mr Wang for assessment by Occupational Medical Specialists Limited, with a report provided by Mr B Dryson. As Mr Dryson states, the reference was for Mr Dryson to carry out a fitness-for-work assessment in respect of the types of work identified by the occupational assessor. He repeats the history, and then concludes, curiously and beyond his expertise: ARC 175/11 Wang v ACC (Decision) It is my opinion that Eddie's current symptoms are due to impingement syndrome due to ulnar positive variance. This is usually considered to be a developmental abnormality unrelated to injury. It would be my opinion therefore that current symptoms are not in fact related to the claim injury of 23 January 2007. [11] I am unable to see from any of the documents produced that Mr Dryson has any expertise in this area which would enable him to reach an opinion, let alone the factual conclusions he has reached. The Corporation referred his opinion to Mr Tasman-Jones, who certainly does hold such expertise. He notes, which is critical to this review: In response to Dr Evan Drysons comment that Mr Gang Wang's present symptoms are due to a developmental abnormality i.e. Ulnar plus variance. Patients who have an ulnar plus variance will also then have a thin TFC which is prone to wear and tears. In my opinion the injury described by Gang has unmasked or has caused his TFC to tear further as the injury was one of gradual onset rather than one specific event. His ongoing symptoms are predominantly due to an ulnar impingement syndrome which is largely caused by his ulnar plus variance which I accept his [sic] developmental. [12] On the basis of this report the Corporation again suspended entitlements, this review resulting. The review decision supported the Corporation's and Mr Wang subsequently sought opinion from Mr Heiss-Dunlop, another specialist in this area. The medical dispute [13] The first report is dated 29 March and he had seen Mr Wang on two occasions. Mr Heiss-Dunlop stated: (a) his findings are consistent with ulnocarpal impaction with pain or ulna deviated loading of the wrist joint. (b) he noted the slight positive ulnar variance; (c) he noted there was a thinning of the triangular fibrocartilage without a full thickness tear and there was heterogeneity of the chondral surface of the proximate lunate consistent with that diagnosis; (d) he thinks it is likely to be due to a grade 1A traumatic TFC injury; and (e) he agrees with Tim Tasman-Jones' recommendation to proceed with a wrist arthroscopy for further delineation of the injury and debridement of the central tear present and an ulnar shortening osteotamy. ARC 175/11 Wang v ACC (Decision) [14] There was a further report in April 2014 following a request from Ms Becroft for further information. This confirmed the methodology of the injury and in particular notes: Confounding in the history was the clear chronological connection between the injury and the patient's onset of symptoms... and this is evidenced by the fact that he was taken straight away for medical assessment at Eastridge White Cross Medical Centre (Statutory Declaration of G Wang No. 9). [15] On the subject of the ulnar variance, Mr Heiss-Dunlop notes that ulnar variance averages -0.9mm, with the range being from -4.2mm to +2.3mm as measured on a radiographic study of 120 normal subjects. He notes: Although MRI scans are not the standard measurement of variance, I measured the ulnar variance on Mr Wang's MRI scan using the linear measurement tool of an InteleViewer Radiology Software and the ulnar variance was + 1.5mm, well within normal limits. [16] He further acknowledges that there were fewer degenerative changes in those with ulnar negative variance. Mr Heiss-Jones notes that this is related to transfer of load across the wrist, which is up to 42% with a 2.5mm lengthening and 4% with a 2.5mm shortening. Finally, he notes that the position of the wrist also changes the load transfer and estimates that in pronation and extension the load transfer increases by 150% through the ulna side. [17] When asked whether or not that, if the TFC had torn further, it had done so as a result of a gradual process (wear and tear) as opposed to any discrete injury, Mr Heiss-Jones states: I believe that this question misrepresents Mr Tasman-Jones' own statement of the 14/05/10. I will quote directly from his report which he furnished to ACC Auckland Branch, the recipient was Ameeta Narayan. Mr Tasman- Jones states: "Gang underwent a plain MRI scan on 04/06/08 and this failed to demonstrate any pathology, it was only when the scan was repeated with he addition of an Omnipaque arthrogram that tears to the lunotriquetral C were demonstra ligament and TFC were nonstrated. Plain MF Plain MRI scans often miss unotriquetral ligament tears, and the addition of dye increases the changes of picking up these lesions. Some tears to the intercarpal ligaments and TFC are only demonstrated at arthroscopy and therefore a normal MRI scan reduces the chance of a significant tear to the intercarpal ligaments and distal radioulnar joint, but does not exclude these injuries." [18] He goes on to say: I agree with Mr Tasman-Jones' deliberations from 14/05/10. I think that although increased loading across the ulna wrist predisposes the degenerative changes, it does not automatically exclude the possibility, and in fact increases the likelihood of patients with this anatomical normal variance developing traumatic tears. I think that the progression of a ARC 175/11 Wang v ACC (Decision) traumatic tear is likely, and easily confused with the appearance of a degenerative tear and in fact may result in an identical ultimate outcome. I would maintain that with the history as explained in the Statutory Declaration and as / understood in my interview in 2011, it is most likely that Mr Wang continues to suffer from a post traumatic situation caused by his injury on 23/01/07. [19] Mr Tasman-Jones responds on 3 June 2014. Importantly he again mis-quotes the injury mechanism by suggesting that a hammer struck the ulnar side of his right wrist, which is clearly incorrect. He notes that lunotriquetral ligament tears and peripheral tears to the TFC can be missed in the circumstances of a normal scan. The repeat scan showed a pinhole perforation to the lunotriquetral ligament and thinning of the TFC, with the evidence of earlier ulna impaction syndrome. He then says: After reviewing my medical notes, the gradual progression of Mr Wang's symptoms, gradual progression of MRI findings and Mr Wolfgang Heiss- Dunlop notes, it is now much more likely that Mr Wang's present symptoms are due to wear to his ulnar plus variance, thin TFC and progressive loading on the articular cartilage of the lunate rather than the injury as described by Mr Wang [20] He also considers that "the pinhole perforation of the lunotriquetral ligament is very unlikely to be contributing to his present symptoms". Assessment [21] I am faced with varying views from two respected specialists in the field. For current purposes I discount Mr Dryson's opinion. He is neither a specialist entitled to comment nor was his opinion relied on by the Corporation. [22] In respect of Mr Tasman-Jones we now have his initial statement of 14 May 2010 and his later statements. Mr Heissman-Dunlop agrees with his opinion of 14 May 2010. In such circumstances the Court is to look at all the evidence and reach a robust conclusion. Given that the Corporation accepts coverage, the question then must be what continuing diagnosis is due to the injury. The experts disagree on the question of gradual wear and tear, and it is clear that tears can be caused by either gradual onset or by a traumatic impaction. [23] I prefer the opinion of Mr Heiss-Dunlop for the following reasons: . Mr Tasman-Jones does not explain why he now considers that the original MRI should have picked up the tear, given his detailed explanation once the dye test had been undertaken in 2008, with which Mr Heiss-Dunlop agrees. ARC 175/11 Wang v ACC (Decision) 7 Mr Tasman-Jones has no explanation as to why Mr Wang complained of the injury proximate to the event. He seems to ignore the reporting to the medical centre on the same date (paragraph [9] of Mr Wang's statutory declaration) . Mr Tasman-Jones continues to repeat the misinformation that Mr Wang struck his wrist with a hammer. . Mr Tasman-Jones has given different opinions without any explanation as to why those opinions differ. [24] I prefer the opinion of Mr Heiss-Dunlop as being more thorough, better representing the facts and better explaining the mechanism of the injury. [25] On this basis the Court has come to a robust conclusion based on all the facts before it. Given that this is a suspension case, I have essentially treated it as if this was a claim for coverage. I do not think that the Corporation can rely on s117 to avoid their obligations under s65, if they wish to avoid coverage of claims. The tendency appears to be to accept the original claim for sprain, but refuse further entitlements on the basis that there is no underlying cause. [26] Given their acceptance of the traumatic injury on 23 January 2007 I conclude that the ongoing effects are more likely than not to be due to that injury. I am not satisfied that any underlying condition of positive ulnar variance is responsible for the injury; nor is there any evidence to suggest that it is substantially due to that ulnar variance. Outcome [27] Accordingly, the decision of the Corporation and the Review officer must be quashed. The entitlement continues from 29 November 2011, as does coverage in respect of the identified injuries. SIGNED at AUCKLAND this 23 rd day of Septader 2014 J A Smith District Court Judge ARC 175/11 Wang v ACC (Decision)