Gascoigne v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2013] NZACC 126 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN GREGORY GASCOIGNE (ACR 323/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 5 April 2013 APPEARANCES Ms C L Hollingsworth, Counsel for Appellant. Ms W L Aldred, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 20 September 2011, whereby it declined to approve to fund elective surgery to the appellant's right shoulder, on the grounds that such surgery was required to treat pre-existing medical conditions rather than any injury to the shoulder sustained in the accident of 5 March 2011. [2] The background facts relevant to the issue in this appeal may be noted as follows: On 5 March 2011,the appellant, then aged 67 years, was in Taupo supporting his son who was engaged in the Taupo Ironman competition and at the conclusion of the race he was carrying some 2 beer down a slope in wet conditions when his legs slipped from under him and he fell heavily onto his right shoulder. . The appellant experienced immediate pain in his shoulder. The appellant obtained cover for a right shoulder and upper arm strain injury and the first treatment he received was a cortisone injection on 22 March 2011. That cortisone injection caused the pain to diminish but it subsequently returned and he was referred by his GP to Mr Chris O'Meeghan, Orthopaedic Surgeon. Mr O'Meeghan carried out an examination in July 2011 after obtaining an MRI scan on 5 July 2011. . On 20 July 2011 Mr O'Meeghan lodged a claim for approval of surgery with the respondent, that surgery described as being 'right shoulder arthroscopy - debridement and mini open rotator cuff repair'. The report for the treatment surgery asserted that the surgery was to treat a personal injury caused in the accident event. The application was referred to Mr P Medlicott, Orthopaedic Specialist, of the respondent's Clinical Advisory Panel. It was Mr Medlicott's advice that the appellant's medical condition relating to his shoulder was a pre-existing condition rendered symptomatic. On the basis of Mr Medlicott's report the respondent issued its decision on 30 September 2011 declining to approve funding for surgery. The appellant sought a review of that decision but at the same time Mr O'Meeghan prepared the appellant for surgery in any event, and 3 such. surgery was carried out by Mr O'Meeghan on 29 November 2011. For the purposes of the review hearing a further report was produced from Mr O'Meeghan, as well as a report from Mr Austen of the respondent's Clinical Advisory Panel. Mr O'Meeghan also provided a response to Mr Austen's report. In a review decision dated 24 May 2012 the Reviewer stated that the medical evidence overall persuaded him that the need for surgery was to treat pre-existing gradual process conditions and he therefore accepted the respondent's decision to decline to approve funding. For the purposes of the appeal to this Court no further medical evidence has been introduced than that which was presented at the review hearing. [3] The medical reports which have been produced in this case may be noted as follows: 1. X-ray report of appellant's right shoulder dated 14 March 2011. Findings The glenohumeral and acromioclavicular joint congruity is satisfactory. There is no evidence of acute bony trauma. Periarticular soft tissues are normal with no focal calcification. There is an old corticated flake of bone superior to the lateral aspect of the clavicle consistent most probably with an old injury. 2. Ultrasound report dated 22 June 2011. The long head of biceps is completely torn. Subscapularis tendon is completely torn: Supraspinatus tendon shows as massive tear and retraction. Dynamic abduction shows bone impingement. Infraspinatus and teres minor are. intact Conclusion There are massive tears involving the long head of biceps, subscapularis and supraspinatus tendons. 4 3. MRI Scan dated 5 July 2011 Conclusion Complete tears to supraspinatus and subscapularis with biceps rupture between. Muscle volume shows a mild atrophy despite the advanced tendon retraction. Extensive oedema and frayed supraspinatus tear suggests this is relatively acute. ' 4. Report from Mr O'Meeghan dated 20 July 2011 This was Mr O'Meeghan's report in support of the claim for funding of surgery. Mr O'Meeghan commented, inter alia, as follows: Mr Gascoigne describes as injury where he was carrying a heavy chilli-bin full of beer with him on one side and his wife on the other. It was raining at the time in Taupo and as he was doing down a bank, his feet went out of underneath him and he fell onto the point of his elbow and immediately his shoulder became painful, i.e., he got an axial loading of his left arm. This is entirely consistent with his presentation and mechanism of injury. There are no previous claims for his shoulder that I am aware of. He presented soon after his injury with his symptoms and indeed had an x-ray one week following his injury. His x-ray does show a small old corticated flake above his AC joint which may well be related to a previous injury that I am unaware of. There is no evidence of any spur formation on his acromion. Imaging of the other shoulder is unavailable. Prior to his njury Greg had no issues with his shoulder whatsoever. He is otherwise in good health. The interval between his injury and his presentation is short and consistent with the onset of his symptoms. There is no evidence of any significant muscle atrophy indicating that this is a relatively recent injury consistent with the length of time from his injury to his can. There is no evidence of any excessive bursal fluid on these scans. Against this injury is his age, however given the extent of his tears I would have expected him to have had fatty atrophy and a significant dysfunction in his shoulder for a much longer period of time if these tears had been pre-existing before his injury. ... 5. Comment from Mr Medlicott, Orthopaedic Specialist, dated 16 September 2011. . .. ... I note that the surgeon notes that the client remembers rupturing long head of biceps when riding a motor bike some years before. I would mention that the long head of biceps rupture has a very strong association with rotator cuff disease and particularly with supraspinatus disease and rupture. I note MRI shows pairs of virtually all the shoulder tendons with retraction. Xray is essentially normal. Ultrasound confirms massive tears. I would imagine these tears are not causally linked to the episode of injury but have been rendered symptomatic and have been present for some significant time especially as there is muscle atrophy and retraction. The cause of these tears would be age related degenerative disease due to probable tendinosis. ... 5 6. Report from Mr O'Meeghan dated 20 January 2012. . . . Yes prior to his incident it was asymptomatic and he sustained a traumatic injury and his shoulder became symptomatic. a. This obviously shows a temporal relationship between his injury and the onset of his symptoms. I note the clinical advisory comments regarding iological findings. Having reviewed the films, this result has been mis-interpreted. The atrophy does not refer to fatty atrophy/infiltration merely loss of muscle volume. This loss in muscle volume is compatible with the disuse of his tendons between the time of the injury and the time of his scan. If he had any significant pre-existing rotator cuff lesion, I would have expected to see fatty infiltration into the muscle bellies which would have been entirely consistent a long standing injury. and this seems to have been overlooked in the CAP opinion. ... I note the 12 page document from ACC regarding subacromial impingement. This assumes that Mr Gascoigne had sub-acromial impingement prior to his injury and I do not think that this is necessarily the case. B. The large tears associated with the level of retraction seen would be more compatible with a ong standing tear if there was fatty atrophy seen or significant muscle atrophy. Neither of these features are seen on the radiology. The tendon is frayed with a marked amount of fluid and oedema indicating that is more likely an acute injury. ... ...If however, this tear had been long standing I would not have expected any hope of repairing this tendon at all as it would have been impossible to action laterally. A. I feel that there is relatively little evidence of pre-existing condition. I concur that he has had a long head of biceps rupture which can be associated with the presence of rotator cuff disease'. However, if he had tears as extensive as seen on the MRI scan for a long period of time, I would have expected him to have a significant functional disability and more extensive changes seen on his radiology. b. On the balance of probabilities, I think the major cause for his presentation is the fall on the 5 March 2011 rather than any pre- existing condition. 7. Comment from Dr Austen, dated 27 February 2012. Dr Austen commented on Mr O'Meeghan's report stating, inter alia, as follows: Muscle atrophy is a condition that arises when the muscles cease to be functioning and cease to be being used. It is often an argument in elective surgery cases that the absence of muscle atrophy means that the tear has been recent however it is important to understand that a tendon is a three dimensional object in the human body and so even though it may tear full thickness or partial thickness, some parts of the tendon remain attached for quite some time. While any part of the tendon remains attached muscle atrophy is unlikely to occur to any significant degree. So one can have a full thickness rotator cuff tear for many years and yet have mild, little or no atrophy and that is a perfectly reasonable situation to find because part of the tendon remains attached. 8. Comment from Mr O'Meeghan dated 1 May 2012. This was the final comment from Mr O'Meeghan and was a response to the comments made by Dr Austen. 6 The whole of the supraspinatus tendon was involved in this tear. At the time of surgery infraspinatus was also involved. If any part of the supraspinatus was involved in this tear I would agree with Mr Austin's [sic] comment that this would delay the onset of fatty atrophy, given the extent of the tear at the time of surgery, I would have expected fatty atrophy to have occurred in supraspinatus at the very least. It is possible that patients can function well with reasonably e sonably extensive rotator cuff tears, however given the extensive nature of these tears, further changes in the rotator cuff would have been seen, particularly in terms of fatty atrophy of supraspinatus (given that infraspinatus was torn as well) if this tear had been present for some time. ... . . . ... On the balance of probabilities it is my opinion that Mr Gascoigne did have an element of rotator cuff disease prior to his injury but this was substantially worsened at the time of his injury. If he had not had his injury it is difficult to say iffor when he would have presented with a painful shoulder. [4] In her submissions Ms Hollingsworth referred to the fact that the MRI scan had identified that the medical conditions of the two damaged tendons was relatively acute and she also referred to the fact that Mr O'Meeghan had clearly identified that there was a causal link between the need for surgery and the injury sustained in the accident event. Counsel also referred to the fact there was no evidence that the appellant was experiencing a heavy pre-accident condition in his right shoulder. (5] Ms Aldred, Counsel for the Respondent, referred to the fact that the Clinical Advisory Panel's reports had identified the fact of the medical conditions being pre- existing, and on that basis the surgery required to treat those conditions cannot be the subject of an entitlement for treatment of an accident related injury condition. DECISION [6] In claims such as this present one, the onus is on the appellant to establish, on the balance of probabilities, that the need for surgery is to treat an injury condition suffered in the accident event, that is, that the condition was a traumatic injury condition as opposed to it being a pre-existing condition which had become symptomatic as a consequent of the accident event. [7] In this present case, in the views of the two parties each endeavours to establish the factual situation that supports their respective positions. [8] As was noted by Mr O'Meeghan when it was identified in the MRI scan that there was no fatty atrophy, this established that the tears had not pre-existed the injury 7 event. He further stated that if the tendons had been longstanding he would not have been able to repair them in the way that he did, and on that basis he considered there was very little evidence of the conditions being pre-existing. [9] There is one aspect of this case which I consider to be relevant when making a determination between the two respective views in this case. In the report by Dr Austen he refers to the fact that it is often contended that the absence of muscle atrophy means that the tear has been recent, but he said that if any part of the tendon remains attached muscle atrophy is unlikely to occur, and therefore one can have a full thickness rotator cuff tear and little or no atrophy if there is an attachment. [10] In the present case, there is no evidence of the fact of a continued attachment, so that if it had been the case that that lack of continued attachment had been in existence prior to the accident event, then it would have been the case that the appellant's shoulder would have been showing muscle atrophy. It must therefore be the case, as I find it, that the accident event did cause some further traumatic action to the appellant's tendons, and this of course is in keeping with the fact that from the time of that accident event the appellant began to experience significant pain which was not removed until the surgery had been carried out. [11] From a legal perspective, it must be established that the accident event did cause a traumatic physical condition, even if it was a traumatic event to an already existing injury condition. [12] Having regard to the evidence in the present case, I find it to be more likely than not, that the accident event did cause a further injury to the appellant's tendons and caused them to reach the stage where they were fully ruptured and therefore required surgery to treat that new injury condition. [13] Accordingly, therefore, I find that, on balance, the surgical treatment carried out by Mr O'Meeghan was surgery to treat a physical injury which had occurred in the accident event of March 2011, and as such the appellant is entitled to have the cost of that surgical treatment met by the respondent in accordance with the statutory provision of Clause 1 of Schedule 1 to the Act. [14] For the foregoing reasons, therefore, the respondent's decision declining to agree to payment for the cost of treatment, is now quashed and substituted by this Court's 8 decision that the surgery carried out by Mr O'Meeghan is to be paid for by the respondent. [15] The appellant being successful in this appeal, I allow costs to the appellant in the sum of $2,000 together with any qualifying disbursements. DATED this 24th day of April 2013 Deathe M J Beattie District Court Judge