Hill v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 189 /98 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 JAMES COLIN HILL DCA 133/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of August 1998 APPEARANCES: Ms J M Screech, counsel for Appellant Mr JD Palmer, counsel for Respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue of this appeal is whether the Corporation's decision of 26 June 1997 to cancel the appellant's entitlement to weekly compensation was correct. 2 Background On 5th March 1995 the appellant, then aged 59 years, suffered injury to his right knee and calf. This injury occurred when he was pushing a boat on a trailer and his right leg gave way and he fell in pain to the ground. He required immediate medical treatment and obtained same from the Medical and Injury Centre in Hamilton and there completed an application for cover under the Act. The diagnosis on that application for cover states "partial rupture right achilles". In the same document when describing the injury it is described as "right calf muscle". He was prescribed a course of physiotherapy and a subsequent medical certificate indicated that he was responding well to that treatment. In a subsequent certificate the certifying doctor states "appears to have ruptured anterior-cruciate ligament, right knee at time of right leg injury. To see orthopaedic surgeon." In April 1995 the appellant was referred by his GP, Dr Maplesden, to Mr G Cowley orthpaedic surgeon because of the continual problems he was experiencing with his knee. In a report from Mr Cowley to Dr Maplesden of 5 April 1995 Mr Cowley states as follows. "Thank you for asking me to see this 59 year old who felt something 'twang' in his right calf as he was pushing a boat off his trailer about four weeks ago. His calf became swollen and ever since the knee has felt unstable particularly when walking up stairs, or pivoting on the leg. In the past he had a bus accident in 1951 sustaining bilateral proximal tibial fractures, treated in plaster. Also a left total hip joint replacement in 1992. 3 Examining his right knee there is tenderness over the medial head of gastrocnemius. There is Grade II medial laxity in flexion although stable in extension. Also mild increased saggital plane laxity but with a definite end point on stressing both anterior and posterior cruciates. The posterior drawer is met with a loud clunk at the end of terminal range. Knee movements are full. There is no palpable cyst in the popliteal fossa. X-rays of the knee reveal a bony spur on the proximal medial tibia which is probably related the previous knee trauma. No evidence of recent bony avulsion. He has evidence of a longstanding partial medial collateral and cruciate injury. The most recent event is most likely a rupture of the medialhead of gastrocnemius, or alternatively a ruptured Baker's cyst. I am not able to find evidence of a meniscal tear or other mechanical intra-articular pathology. I don't think any active treatment is required and he is best to continue in the expectation of further improvement over the next few weeks. I plan to see him upon his return from Australia to check how he is getting along. I will keep you informed." Mr Cowley saw the appellant again on 5 May 1995 and again reported to Dr Maplesden where he stated: "I saw Mr Hill again today upon his return from overseas. He continues to experience anterior knee pain on stairs and hills and also painful clicking and jabs of pain from deep within the knee. On occasions the knee feels quite unsteady. 4 Examining the knee there is a popliteal cyst but no joint effusion. There is low grade lateral joint line tenderness. Both the anterior and posterior cruciates have end points to stressing and clinically there isn't significant instability. In view of the ongoing problems with his knee and mechanical symptoms I plan to arthroscope his knee for diagnostic reasons, dealing with any meniscal pathology. He is keen to proceed and I will get on when we hear back from ACC." Following the arthroscopy Mr Cowley reported to Dr Maplesden on 17 May and a copy of his report is as follows. "I have arthroscoped his knee as a day case at Anglesea Surgical. Examined under anaesthetic there is Grade II medial laxity with the knee flexed, but collateral ligaments are stable in full extension. End point to stressing both anterior and posterior cruciate ligaments. Arthrscopy has revealed moderately severe degenerative change in the medial compartment primarily affecting the medial femoral condyle with Grade III to IV articular surface fibrillation. The lateral compartment and patellofemoral joint show only minor degeration. Menisci and anterior cruciate ligament are intact. In essence he has moderate degenerative change in the medial compartment, and an associated partial medial ligament injury. I will be seeing him again in a couple of weeks to check on his post-operative progress." 5 That subsequent to that surgery the appellant continued to suffer from pain in his right knee and his GP continued to certify him as being unfit to resume his former employment as an electrician. He continued to receive weekly compensation. In May 1996 the Corporation sought further information from Dr Maplesden about the appellant's present condition and prognosis and by letter 10 May 1996 Dr Maplesden replied to that request for information as follows. "1. The claimant's present condition is post-traumatic arthritis affecting the right knee and described as moderately severe after arthroscopic examination in May of 1995. There is also some laxity of the medial collateral ligament and these changes are felt to be slowly progressive. 2. He has seen Mr Grant Cowley, Orthopaedic Surgeon in the past and had arthrscopy. He has also had intensive physiotherapy and uses anti- inflammatory medication on a regular basis. 3. Existing related conditions include osteoarthritis of the lower back and both hips. 4. Current work capabilities are that he would be fit for light work which did not involve prolonged standing, squatting or crouching, crawling in confined spaces or climbing ladders. Unfortunately this precludes his previous job as an electrician. 5. A work-site visit with an Occupational Therapist would not benefit James' return to his former work because of the nature of his condition." The appellant continued to be certified unfit by his GP and this state of affairs continued until March 1997 when the Corporation again sought to 6 review the appellant's case. In that regard it sought the opinion of Mr D Allen, orthopaedic surgeon. Mr Allen examined the appellant and reported to the Corporation on 24 April 1997 and his report states inter alia as follows. "At the age of 15 Mr Hill sustained fractures of both knees just below the knee. These injuries were treated conservatively. This injury would explain the x-ray appearances on the right side. I note that on 5.5.95 Mr Cowley was of the opinion that Mr Hillhad evidence of longstanding posterior cruciate injury, and partial medial collateral ligament injury. Mr Cowley was of the opinion that the injury was either a rupture of medial head of gastrocnemius, or a ruptured Baker's cyst. He could find no evidence of other mechanical intra-articular pathology. This opinion was confirmed at arthroscopy 17.5.95 when no evidence of meniscal damage was noted. Mr Cowley recorded moderately severe degenerative changes in the medial compartment primarily affecting the medial femoral condyle, and minor changes in the lateral compartment and patello-femoral joint. Your questions. 1. What is your diagnosis? An unstable right knee reflecting longstanding posterior cruciate injury, and longstanding partial medial ligament injury. There is also partial medial ligament injury. there is also established degenerative change, mainly involving the medial aspect of the joint, almost certainly secondary toe the ligament instability. 7 2. Is his incapacitynow due to the injury or degerative change? Mr Hill's incapacity is a reflection of instability and degenerative change. In my opinion the present situation is not a reflection of the injury sustained 5.3.95. Mr Cowley described that injury as either a gastrocnemius tear or ruptured Baker's cyst - there is no evidence of any residual problems from either of these diagnoses at this stage. 3. If due to unjury, what is the prognosis and when can a return to work be expected? As above. 4. Artthee any underlying medical conditions influencing recovery? Mr Hill underwent total hip replacement in 1992 from which he has made an excellent recovery. Mr Hill has recently undergone bypass surgery for a heart problem and Mr Hill is making very good progress following that surgery." Following receipt of Mr Allen's report and consideration of it by the Corporation's Senior Medical Advisor, the decision letter of 26 June 1997 was sent to the appellant advising that it was the Corporation's advice that his present incapacity was not related to the injury sustained on 5 March 1995, that there was no evidence of any residual problems from that injury and that his present incapacity was caused by degenerative changes in his knee. The appellant sought a review of that decision. For the purposes of that review hearing the appellant sought further opinion from Mr Cowley and in his advice of 12 February 1998 he stated as follows: 8 "On reviewing Mr Hill's case I believe it is important for the ACC to take into account Mr Hill's history of his right knee having been completely asymptomatic immediately prior to the injury sustained in March 1995. Although degenerative changes were documented at the time of his knee arthoroscope in May 1995, these had been asymptomatic, and there is a clear temporal relationship between the onset of his knee symptoms and the injury sustained. In view of this I think it is reasonable to assume that his injury is of substantial importance in his current knee symptoms and associated disability." That report was submitted to the Review Officer at the review hearing on 17 February 1998. The Review Officer's decision of 27 February 1998 held that the facts established that there was no actual specific knee injury at the time of the accident on 5 March 1995. The injury consisted of a tear of the gastrocnemius which is the large double muscle which forms the chief bulk of the calf. The evidence established that there was a complete recovery from that gastrocnemius tear and that the ongoing knee problems were in fact as a consequence of the previously asymptomatic degenerative changes in the knee becoming symptomatic as a consequence of the accident. The Review Officer's decision was that the medical opinion established that his present problems were arthritic in source and as such were not attributable to the accident. Ms Screech, counsel for the appellant, submitted three grounds for contending the previous decisions were wrong. (i) Contrary to the Review Officer's finding there was evidence of trauma-injury to the appellant's right knee as a result of the accident of 5 March 1995. (ii) There is a temporal relationship between the accident and the right knee disability which establishes the required causal link. (ifi) The facts of this case are an example of the application of the "eggshell skull" principle. In support of (i) counsel submitted that although there are some variants in the various medical reports and certificates as to the precise diagnosis of the injury, there is evidence to establish that the appellant did suffer pain to and instability from his right knee and this has continued down to the present time . As far as (ii) above is concerned, she submits that the evidence is clear that prior to this accident the appellant had no problems whatsoever with his knee and led an active outdoor life and that it is only since the accident that he has been caused the ongoing pain and disability. Mr Cowley's advice of 12 February 1998 establishes that temporal relationship and that it is reasonable to assume that this injury is of substantial importance in his current knee symptoms and associated disability. Insofar as (iii) above is concerned, she submitted that the Review Officer was satisfied that the knee problem had been brought to light by the accident of 5 March and that therefore the appellant's physical situation then was such as to render him more susceptible to the consequences of that trauma and that the exacerbation of the previously asymptomatic knee condition constituted a new state of affairs. Counsel relied on the decision of Ngakuru y ACC 1993 NZAR371 where the Accident Compensation Appeal Authority 10 held that a claim should succeed if an external event aggravated or exacerbated a bodily weakness such that a new state of affairs was created. Insofar as as the exclusionary provision of section 10 is concerned, counsel for the appellant submitted that degenerative changes or injury caused by the aging process was not the substantial cause of the injury, as the meaning of 'substantial' must be interpreted for that section. She contends that 'substantial' must mean real, significant and that that was not the state of the appellant's degenerative change at the time of the accident and that it was the accident itself which was the more substantial cause. Mr Palmer, counsel for the respondent, submitted firstly that the evidence is clear that the primary injury sustained in the act of pushing the boat on the trailer was a tearing of a calf muscle but it did, within a short time, bring to light the underlying degenerative problem with the knee. Counsel submits that the medical evidence is quite clear that there is no causative link between the injury suffered in the accident and the appellant's ongoing symptoms. Counsel submits that provisions of section 10 of the Act apply and that the appellant is no longer entitled to cover. Counsel further contends that the appellant is not entitled to cover under the Act by virtue of the eggshell skull principle. He submits that there is a potential conflict between that principle and section 10 of the Act. He submits that section 10 expressly excludes claimants whose injuries are wholly or substantially caused by a pre-existing condition. He submits that the eggshell skull principle is a common law principle which applies to the issue of quantum and foreseeability, not liability, and that a pre-existing condition such as arthritis or the like, excluded by section 10, is a different notion than the eggshell skull principle of foreseeability of injury. 11 Decision The distillation of the medical evidence leaves this court in no doubt that the initial injury suffered by the appellant on 5 March 1995 was an injury to his calf. That is what the claim form indicated and that is what the initial medical certificates from his doctor indicated. Mr Cowley's first advice to the appellant's GP refers to the injury to his calf and also goes on to talk about the instability of his knee. The arthroscopy carried out by Mr Cowley showed no evidence of meniscal damage. It did confirm what x-rays had already indicated, that there were moderately severe degenerative changes in the medial compartment. It also established that the menisci anterior crusiate ligament were intact. When the appellant was seen again by Mr Cowley in July 1995 it was his advice that the right knee had settled apart from some niggling medial compartment pain from the degenerative change there. Mr Allen's opinion is that there was a long-standing posterior crusiate injury which probably dated back to the severe knee injuries he sustained as a 15 year old and that his present incapacity was a reflection of the instability caused by that longstanding injury and the degenerative changes which had occurred. Mr Allen could find no evidence of any residual problem arising from the gastrocnemius tear. On that evidence I concur with the findings made by the Review Officer that there is no evidence of any current disability arising from the gastrocnemius tear which was the original injury of 5 March 1995. Similarly I agree with the Review Officer when he found that this particular injury brought to light a pre-existing degenerative condition in the knee and that it has been that degenerative condition, coupled with the instability of the knee from the old injury, that is the present problem. 12 It was counsel for the appellant's submission that that degenerative condition was asymptomatic and that it was the accident which caused it to become symptomatic, indeed the cause of the appellant's ongoing disability. She submits that this is an example of the eggshell skull principle and that the exacerbation or hastening of the symptoms of degenerative change are simply an instance of accepting the victim as you find him (my words). In terms of the statement of the eggshell skull principle in Mccarthy v Union Steamship Company 1916 NZLR 1154 I take her to contend that the appellant's physical condition, having as it did an asymptomatic degenerative condition in the knee, and that when that knee was involved in a trauma which caused that condition to become symptomatic it was simply that the appellant was peculiarly susceptible to grave consequences which that degenerative condition brought about and which would not have occured if the appellant had not had that degenerative condition. I find that the foregoing, which I believe I have interpreted correctly as being the essence of her submission, as not being applicable to the accident compensation scheme. I am attracted to the submission of Mr Palmer for the respondent that consideration of provisions of section 10 of the Act in relation to the eggshell skull principle really render that principle inapplicable in most cases. The Act is not concerned with issues of foreseeability of consequences or whether the relationship between trauma and consequence is reasonable or within bounds. Thus referring to the eggshelll skull example itself the Act is not concerned with determining whether a claimant has a thin skull or not or that the injury his skull suffered from the blow was greater than that which an ordinary person would suffer. The claimant is entitled to cover and 13 compensation for whatever the extent of the personal injury by accident happens to be. This court has on previous occasions considered the eggshell skull principle when assessing the continuance of the symptoms of injury past a date when medical opinion might have considered the effects of injury ought to have passed. In those circumstances if the evidence is that the particular injury was more long lasting or severe than the actual severity of the trauma would normally cause then that could be said to be a notion allied to the eggshell skull principle. The provisions of section 10 make it clear that personal injury caused wholly or substantially by the aging process is not covered by the Act. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of the accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature. In the present case the degenerative condition being largely arthritic, has flared up and is now the disabling feature. That arthritic condition was not caused by the accident, it was brought to light by the accident and its effects may well have been exacerbated by the accident but there is no causal link as the condition was that of a degenerative change. If the medical evidence established that the appellant was still suffering from the effects of the calf injury and those effects were a real cause but not necessarily the only cause 14 of his disability then he would be entitled to a continuation of his cover. The medical evidence is entirely against such a proposition and whilst there is a temporal relationship between the onset of his knee symptoms and the injury sustained that relationship is temporal only and not causative, one of the other. In that regard I consider the opinion of Mr Cowley in his letter of 12 February 1998 to be accurate from a medical point of view but not from a medico-legal point of view. Accordingly then because I find there is no causative link between the appellant's ongoing symptoms and the injury he sustained in the accident of 5 March 1995 the Corporation was correct to rule that he was no longer entitled to cover for that injury. The Corporation's decision to cease cover was correct and accordingly this appeal is dismissed. DATED at WELLINGTON this IS day of September 1998. athe M J Beattie District Court Judge