Pirihi v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 239 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN INEZ PIRIHI DCA 118/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS This is an appeal where the parties have agreed that the matter be determined on the papers. The issue for determination in this appeal is whether the respondent was correct to decline the appellant's request for the payment of surgical and other associated private hospital costs in relation to an operation for a total knee joint replacement. 2 Background Facts On 24 July 1996 the appellant sprained her left knee when she tripped over a heater. At the time of this accident she was 80 years of age. Her claim for cover was accepted and payments for physiotherapy treatment and also for home help were made to her as a consequence of her injury. Her recovery from this sprain was not progressing well and she was referred by her GP to Mr Michael Caughey, Orthopaedic Surgeon. X-rays were taken on the 25 October 1996 and this revealed osteoarthritis of the medial compartments and to a lesser extent of the patellofemoral joints. Mr Caughey recommended a total knee joint replacement and applied to the respondent to assist with the cost of same. The respondent declined that request on the basis that the surgery contemplated was as a consequence of degenerative osteoarthritis and not as a consequence of the injury sustained in the accident. That decision was confirmed by the Review Officer on review. Relevant Statutory Provision Section 10 of the Accident Rehabilitation and Compensation Insurance Act 1992 states: (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 --- (a) Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or 3 (b) Personal injury that is medical misadventure; or (c) A consequence of personal injury or treatment for personal injury covered by this Act. (2) For the avoidance of doubt it is hereby declared that --- (a) Personal injury caused wholly or substantially by the ageing process; and (b) Personal injury to teeth that is caused by the natural use of those teeth -- is not covered by this Act Medical Evidence At the review hearing the Review Officer accepted the evidence of both Mr and Mrs Pirihi that prior to the fall in July 1996 Mrs Pirihi had experienced no discomfort with either of her knees and her medical history supports the fact that she displayed no prior symptoms of an arthritic condition in her knees. The report of Mr Caughey dated 26 November 1996 is as follows: "Thank you for referring Mrs Pirihi who noticed pain in her left knee following falling over the heater on the 24th June this year. She reports that since then she has experienced pain posteriorly over the left knee and a feeling that the legs are tired. She finds she has to stand carefully after sitting for any length of time. She takes a few minutes to get moving on her knees. She currently has no night pain in the knees but she is quite limited in her day to day activities and as she pointed out is largely housebound now whereas she was previously independent and active in the community. Walking 4 downstairs she likes to lead with the left knee. She has mild hypertension and also suffers from some back pain. On examination she has bi-lateral genuvarum which is not correctable to neutral. She has a small effusion and is tender particularly posteriorly but also medially. She has a good range of movement from 0 - 120 degrees and I have warned her she may not get this good a range after a knee joint replacement. She has good pedal pulses and a good range of movement in the hip. She has a good range of movement in her back and good power in the quadriceps with intact knee jerks. FINAL COMMENT: Bi-lateral knee x-rays reveal osteoarthritis of the medal compartments and to a lesser extent of the patellofemoral joints. Mrs Pirihi is keen to proceed with a joint replacement. I have warned her she may not get quite the range she has at present and I have also run over the complications of the procedure and she is keen to go ahead. As this was initiated with an accident I have made application to the ACC to proceed with the joint replacement." The report of the Radiologist who took x-rays on the 25 October 1996 stated as follows: "Although the right knee has been requested; the left knee has been radiographed as the patient indicated that this was the painful joint. Findings: Severe degenerative change is present in the medial femoro-tibial compartments of both knees with complete loss of joint space on the right side and near complete loss on the left. Degenerative change is also present in the patello-femoral joint of the left knee. Subchondral sclerosis and osteophyte formation are present in the affected joints. No left knee joint effusion is identified. Comment: Severe degenerative change present in the medial femoro-tibial compartments of both knees, and the patello-femoral compartment of the left knee. " Finally the appellant's General Practitioner, Dr Nuijsink answered a questionnaire from the Corporation which stated inter alia: "1 . Mrs Pirihi has degenerative osteoarthritis of her knees 2. Mrs Pirihi has very limited function due to ongoing pain in her knee since the injury. It is a movement initiated pain so she tends to stay still as the pain is less. 3. Her pain has not eased over 5 months so a spontaneous resolution is unlikely. Specialist opinion and x-rays confirm the need for a joint replacement to resolve her pain. 6. Mrs Pirihi suffers from chronic low mood, hypertension and back pain. None of these should affect her prognosis. She does have osteoarthritis in her knees but she was pain free prior to her fall. A joint replacement is a very satisfactory treatment for this." In a further letter dated 21 February 1997 Dr Nuijsink stated as follow: "Mrs Pirihi is appealing the decision regarding the non-acceptance of that claim for the cost of a TKJR for her L knee. Mrs Pirihi injured her left when she fell over a heater in June 1996. Since then she has had ongoing pain in her left knee until a TKJR was undertaken by M Caughey on 23/12/96. Prior to her injury Mrs Pirihi had no pain in her knees. X-rays did show Mrs Pirihi has degenerative osteoarthritis of her knees. Her pain had not eased over five months so a spontaneous resolution was unlikely. Specialist opinion (Mr M Caughey) with x-rays confirmed the need for a joint replacement to resolve her pain. 6 While the osteoarthritis was present before the accident and was not caused by her fall Mrs Pirihi was not aware of her arthritis and it was the fall that flared it up without relief and going on to require a joint replacement. In my opinion the accident did contribute to Mrs Pirihi requiring a joint replacement by flaring up the previously unknown arthritis." In her submissions to the Review Officer and again in her written submissions to this Court Mrs Pirihi stresses the fact that prior to the fall she was fully active, including going for long walks, playing bowls and suffering no discomfort whatsoever. She says that all her troubles have resulted from the fall and she says that she believes that if she had not had the fall she could have gone for another 20 years without any problems. In essence she is saying had it not been for the fall she would still be in the fit and healthy condition she was prior to the fall. Counsel for the respondent accepts that the appellant's fall brought to light the symptoms of osteoarthritis in the sense that she was asymptomatic prior to the fall. However it is submitted that the substantial cause of the ongoing symptoms was the degenerative change in the osteoarthritis, not injury from the fall and as such, section 10 of the Act excludes any entitlement to cover. Decision The Corporation is only bound to pay for treatment which has been necessitated by and is directly attributable to personal injury by accident. As is stated in section 10 of the Act, personal injury caused by gradual process or caused wholly or substantially by the ageing process are not covered. The medical evidence establishes that the appellant's medical condition was 7 clearly that of degenerative osteoarthritis of her knees. The x-rays established severe degenerative changes in the medial femoro-tibial compartments of both knees. The fact that her condition was asymptomatic prior to the fall does not alter the position that she did have severe osteoarthritis and that this could manifest itself in pain and restricted mobility at any time. This Court accepts the evidence that the fall triggered the onset of the painful symptoms of osteoarthritis but I find that the medical evidence is clear that that is all the fall did, it set off the previously dormant arthritic condition. This Court is obliged to accept the medical evidence that has been presented, there is no reason whatsoever to doubt it and it all points to the fact of a pre- existing degenerative condition being triggered by the fall. The reason for the surgery was not to remedy the sprained knee suffered in the fall but to remedy the degenerative condition of the knee caused by its ostheoarthritic condition. That condition was not caused by the fall and therefore it is not a circumstance for which the Act can give cover and an entitlement to the payment of surgical treatment. This Court has the greatest sympathy for Mrs Pirihi who must be bewildered by the fact that she was enjoying a full and active life before her fall. However, the Court is unable to let sympathy sway its judgment when dealing with claims under the Act. The present Accident Compensation and Rehabilitation Insurance Act is one which has clear inclusionary and exclusionary criteria for entitlements under it. There are no discretions vested in the Corporation or in this Court on Appeal. You either qualify for entitlements under the Act or you do not, there is no "grey area". 8 Accordingly then whilst this Court has sympathy for Mrs Pirihi it is unable to reach a decision which is favourable to her. The plain fact of the matter is that her replacement knee operation was not caused by or as a consequence of her fall. The only causal connection was that it brought her pre-existing condition to light and the onset of the painful aspects of osteoarthritis which hitherto had been dormant. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON on this 215- day of November , 1997 deaths M J Beattie District Court Judge Pirihi.doc(gm)