Donnelly v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2014] NZACC 78 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 395/12) BETWEEN JAMES DONNELLY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 28 January 2014 Appearances: Ms K Coulston for appellant Mr H A Evans for respondent Judgment: 24 March 2014 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns the respondent's decision of 21 December 2011 declining cover for a right shoulder supraspinatus tendon tear. [2] The two main issues are (a) conflicting information concerning the date of the incident which is said to have caused personal injury by accident, and (b) evidence of a progressive tear which is consistent with a gradual process. Injuries caused by wholly or substantially by a gradual process, other than certain work injuries, are excluded from cover under s 26(2) of the Act. [3] The appellant says that the injury was caused by a fall in May 2002. He was about to sit down when someone removed the chair and he fell, breaking the fall with his right arm. After he injured his left shoulder on about 30 November 2002, an ultrasound was taken of the right shoulder for comparison purposes. It showed an 8mm tear in the right supraspinatus and his general practitioner provided an ACC18 medical certificate on 10 December 2002, and again on 20 December 2002 for a small right supraspinatus tear. The injury was not investigated at the time but it was revived in August 2010 when the appellant experienced further right shoulder symptoms. [4] No treatment was sought for a shoulder injury before November 2002. The first relevant general practitioner record was a note on 14 November 2002 which described: "aching across trapezius + into supra-spinatus full from shoulders + neck no boney tenderness imp muscle strain" [5] The appellant says that this note would have referred to his right supraspinatus injured six months earlier. On 3 December 2002 a GP note recorded: "at weekend after slipping backwards struck a log as he fell backwards. Since then has noted left upper arm to feel different and weaker. O/e full movts left elbow but uncomfortable in upper arm when he moved it. Abduction of shoulder only possible to about 90 degrees without severe discomfort. Painful in all other movts. rotator cuff strain and need to exclude fracture" [6] The timing and text of these two consultation notes clearly indicates two different complaints because the fall over a log occurred just before the second consultation. The appellant says that the first note must have related to his right shoulder. The text gives no indication and it is possible that both notes related to the left shoulder. [7] Mr Donnelly was referred for an ultrasound scan of his left shoulder and the right side was imaged for comparison. The left shoulder showed a supraspinatus tendon tear 12mm long by 9mm wide. The right shoulder showed: "... an 8mm non-symptomatic tear in the distal supraspinatus tendon at its bony attachment on this side as well which appears longstanding." [8] The description of the tear as "longstanding" possibly included a period of six months. The appellant submits that the description was consistent with an acute tear in May showing up as a longstanding non-symptomatic tear in the December ultrasound scan. [9] In conflict with the ultrasound report that the tear was longstanding and non- symptomatic, the appellant's GP lodged a medical certificate by way of a claim for cover for a small tear of the right supraspinatus on 30 November 2002. The date of first consultation was shown as 5 December 2002. All that can be concluded from this is that the appellant did not nominate an accident in May 2002 as the probable cause of a right shoulder tear shown up in the December ultrasound. The ultrasound report did not support the fall over a log as the cause of the "longstanding" tear. [10] The appellant was examined by orthopaedic surgeon Jeremy Evison who reported on 10 December 2002 concerning only the left shoulder injury, which he said was exacerbated by Mr Donnelly's job stretching animal skins, involving reaching forward and lifting. Nothing was mentioned concerning the right shoulder. [1 1] Mr Evison saw Mr Donnelly again on 10 April 2003, when he reported that a good result had been achieved with a subacromial steroid injection four months before and Mr Donnelly requested a further injection. Mr Evison advised against an injection and recommended that he modify his job. [12] There was nothing further until 2010 when the right shoulder became symptomatic and Mr Donnelly's GP arranged an ultrasound scan. This scan on 12 August 2010 reported: 'Supraspinatus tendon: Full thickness insertional tear involving the mid and posterior tendon fibres extending into the anterior fibres of infraspinatus measuring 32 mm anteroposteriorly with 20 mm retraction." [13] Orthopaedic surgeon Alex Malone examined Mr Donnelly and reported on 24 August 2010. He wrote: "James now has problems with his right shoulder with pain and difficulty lifting the arm. He originally injured it six years ago when someone pulled a chair out from behind him and he fell onto his right shoulder. He had immediate pain the shoulder which didn't settle over a month afterwards, he had an injection at the time which did resolve his pain and he was able to return to work. Since then he has been working in the freezing works with an elevated arm between 60-1309. He tells me he does this up to 240 times a day. He has been in this job for four years." [14] At this stage Mr Donnelly gave the first account of the right shoulder having been injured when he fell when someone pulled a chair away. He said he had an injection and returned to work in the freezing works. Mr Malone reported that his work involved elevating his arm between 60 and 130 degrees up to 240 times a day. His shoulder pain had come on in 2010 after he started a slightly different work task that involved forward flexion. Physiotherapy had helped and he was on light duties. [15] Mr Malone considered it possible that Mr Donnelly had injured the cuff at the time of the injury six years before, or it had gradually worsened over the course of his work activities. An MRI scan was arranged on 1 December 2010. The report read: "Complex full thickness tear. There is a small full thickness tear involving the anterior critical zone fibres measuring approximately 14x20 millimetres with an oblique complex full thickness component extending posteriorly and contiguous with a full thickness posterior supraspinatus/anterior infraspinatus tear with medial tendon retraction of 29 mm. Estimated AP extent of both tears is 30 mm. No significant supraspinatus atrophy. Moderate infraspinatus atrophy with moderate fatty change (grade 2). Intact subscapularis. 16] Alliance Group Limited was the appellant's employer and was an accredited employer under the ACC Partnership Programme. Alliance wrote to Mr Malone who replied that the clinical history and examination suggested an old injury some six years before causing some form of rotator cuff tear probably in the posterosuperior/posterior supraspinatus. He considered that there was a more recent tear noted on the scan, which would be in keeping with a more recent anterior supraspinatus tear which was likely to be an exacerbation or extension, caused by recent activity and injury. Alliance then declined cover, explaining its decision as follows: "... To have cover we must be satisfied that you have suffered a new personal injury caused by accident. Clearly from your own statement no such acute event has occurred but it is accepted that your new work role has highlighted your previous pre existing tear and it has clearly aggravated same and there is evidence of the tear increasing in size but this does not in our opinion represent a new injury but merely a reaggravation of your existing injury. We are therefore writing to advise that your claim has been declined however we would urge you to contact the Corporation to arrange for your earlier claim to be reopened as we believe that is the claim that you should be seeking further cover or payment of entitlements on." 17] Mr Donnelly's Union made a further enquiry of Dr Kerr who had done the radiology in 2002. Dr Kerr reviewed the 2002 and 2010 results and wrote: "The right supraspinatus tendon which was imaged for comparison had an 8mm partial thickness tear with no fluid on the right side. At this time the tear would have been many months old. The ultrasound and MRI imaging in 2010 showed a significant deterioration in the appearance of the right supraspinatus tendon with a 30mm full thickness tear extending to involve the infraspinatus tendon. There was also abnormal fluid in August indicating that a significant new injury had occurred in 2010. A date of injury of 22.06.2010 would be consistent with the imaging appearance later in 2010 for the timing of this significant new injury. This would have to be a different event from what caused the partial thickness injury in 2002." [18] Both Mr Malone and Dr Kerr believed there was a new injury showing up on the 2010 radiology. Mr Malone described it as a likely exacerbation or extension, while Dr Kerr described it as a significant new injury. What is a significant new injury is a matter of fact and degree, the problem being that a clear answer is likely to be unattainable. An exacerbation that is a normal worsening of a gradual process is not likely to qualify for cover. The appellant claims that this incident was a tear that was caused by trauma, and would not have otherwise occurred. Medically, that is a very difficult state of affairs to establish with any clarity. [19] That is pretty much what Mr Malone expressed when he reported to the appellant's employer on 29 September 2011 saying: "My feeling is that the tear noted in 2002 on the right shoulder was an asymptomatic one, which was not affecting his function. In 2004 he may have extended this tear but we have no objective evidence to prove this. The extension of the tear and current situation is, in my opinion, caused by the working environment and a gradual process work related injury although there could be some contribution from a personal injury by accident in 2004 (but no hard evidence to prove or disprove this)." [20] Mr Malone wrote again on 11 October 2011. He repeated that the chair incident was six years before (it is now said to be nine years before) and noted that Mr Donnelly had since been working in the freezing works with an elevated arm between 60-130 up to 240 times a day over four years. As to the new symptoms, Mr Malone wrote: "About six weeks ago he started to do tongue cutting and this involved a slightly different movement which involved forward flexion. His shoulder pain came on fairly shortly after this. He rates it between 2-7/10, the shoulder overall at about 60% of normal and has moderate problems with activities of daily living. He has had some physiotherapy which has helped with the pain in his shoulder a little bit but he still has significant dysfunction and he is in his off season at the moment doing light duties as waist level. [21] Mr Malone answered some written questions and then summarised his findings: 'In answer to question 1, from the clinical history and examination it would appear that there was an old injury six years ago where James is likely to have sustained some form of rotator cuff tear. This tear is likely to have been in the posterosuperior/ posterior supraspinatus tear. There is more recent tear noted on the scan which would be in keeping with a more recent exacerbation/extension which is likely to be the anterior supraspinatus tear. ... History: James's right shoulder was affected in 2002 at which point he had ultrasound scans on both shoulders which showed a small tear on the right hand side (8 mm partial thickness with no fluid, i.e. old). Since then he injured his right shoulder when a chair was pulled out from underneath him in 2004. He landed onto that side and had pain in his right shoulder for the first time. Since then, he has been doing heavy shoulder work in the freezing works, elevating his arm between 60-130 up to 240 times a day. For the four years since 2006. Six weeks before I saw him in August 2010 he started to do different work which brought on his pain worse. Radiology: On 12.8.10 an ultrasound scan has confirmed a full thickness tear of the supraspinatus extending into infraspinatus. I arranged an MRI scan which showed extension of the tear, some of which was recent due to an effusion. There was no atrophy of the muscle indicating a recent tear. Summary: From the clinical history and examination it would appear that there was an old injury six years ago where James is likely to have sustained some form of rotator cuff tear. This tear is likely to have been in the-postero-superior/posterior supraspinatus. There is more recent tear noted on the scan which would be in keeping with a more recent exacerbation/extension which is likely to be the anterior supraspinatus tear. The original tear (postero-superior) is likely to be due to personal injury six years ago. The more recent tear may well be an extension due to the recent activity/injury. Over the period since the injury in 2004 with a regular 'above shoulder' use of his arm is likely to have caused a gradual deterioration in the rotator cuff; i.e. may have extended the tear slightly but it appears there was a significant extension of the tear in 2010 with the change of work. This is supported with the MRI findings." [22] Mr Malone described the more recent tear as an exacerbation/extension. He associated it with two periods of work; a gradual deterioration over four years of repetitive work, and a more rapid extension in 2010 with a change of work. The claim for cover does not concern work related gradual process injury, but it related to the injury when Mr Donnelly fell when a chair was pulled away. If he could obtain cover, the extended injury through work would have consequential cover. [23] Mr Donnelly's sister wrote a letter to explain that on 25 May 2002, her brother visited her family in Murchison. He accompanied her to The Hampden for a drink. While there, when he was about to sit down, a teenager walking past pulled his chair away and he fell, putting out his free arm to break his fall. [24] There is no reason to doubt that an accident of that kind happened at some point in time, but whether it was the incident that resulted in a claim for a right supraspinatus tear is not at all clear. Nothing was recorded about the chair incident until August 2010 when Mr Malone noted that Mr Donnelly told him of the incident and said that it happened six years earlier, that would be in 2004. The review [25] A review hearing was convened on 31 November 2011 and adjourned for further information. Mr Donnelly had given evidence at the review to the effect that he injured his right shoulder in the chair incident in mid November 2002. The Reviewer stated that Mr Donnelly had not claimed for cover for that incident. In fact he had claimed in 2002 for a right supraspinatus tear, but had not explained how it happened. The Reviewer's belief that he had not claimed in relation to the chair accident may have been correct in view of the vagueness of the records. [26] During the adjournment of the review, the claim was referred to ACC's Branch Medical Advisor Dr Alan Walker. Dr Walker reviewed the file and wrote: "It is clear from the medical evidence that there was a left shoulder injury in November 2002 which was given cover. It is also clear for the medical records that the right shoulder supraspinatus tear diagnosed on ultrasound on December 5, 2002 was an old tear unrelated to the accident. ('The right side was imaged for comparison and interestingly there is an 8mm non symptomatic tear in the distal supraspinatus tendon at its bony attachment on this side as well which appears long-standing'). [27] After noting that there was no evidence of a more recent work injury, Dr Walker continued: "The current imaging from 2010 demonstrates quite severe rotator cuff disease with long-standing components as illustrated by the known right sided supraspinatus tear which predates November 2002 that has subsequently extended over time into a complex tear. The moderate atrophy of the infraspinatus indicates that the rotator cuff disease has also evolved over the years to involve the infraspinatus tendon producing a full thickness tear and as a result of the full thickness tear the infraspinatus muscle which is no longer functioning normally has atrophiesnd been infiltrated by fat. Rotator cuff tearing which evolves slowly over time due to rotator cuff disease is recognised to be part of the ageing process. [28] Dr Walker concluded: "The right shoulder rotator cuff disease has been attributed to an accident on November 3, 2002 However the ultrasound from December 2002 demonstrated that there was an 8mm non symptomatic tear in the distal supraspinatus tendon at its bony attachment which appeared long-standing Subsequently a new accident to the right shoulder has been recalled. This is said to have occurred on May 25th 2002. Rotator cuff disease is a common accompaniment of the aging process. If there is an acute traumatic tear of a rotator cuff tendon one would expect an early presentation for medical care. The medical record is consistent with rotator cuff disease which has evolved over time." [29] The points which persuaded Dr Walker were: a) that the right shoulder tear was considered by the radiologist in 2002 to be of longstanding in an ultrasound on 5 December 2002; (b) that Mr Donnelly put it down to an accident in early or mid November 2002; (c) that in 2002 there was no record of medical examination of the right shoulder, or explanation of the causative incident, only a claim consequent on the ultrasound finding. [30] ACC then again refused cover and the review hearing resumed on 28 February 2012 when the parties agreed to the Reviewer drafting a letter to Mr Malone for further assistance. Mr Malone replied on 27 March 2012: "1. In answer to your first question, the new sequence of events is consistent with a small partial thickness tear 8mm in the right supraspinatus sustained when Mr Donnelly fell back when he was expecting a chair to be there. The ultrasound scan in December 2002 i.e. seven months later confirmed this tear 'having been present for several months'. The deterioration in June 2010 is likely to have been due to a new full thickness supraspinatus tear seen without associated fatty atrophy. The posterior supraspinatus/ anterior infraspinatus tear associated with some atrophy is likely to have been present for some time and the evidence would suggest that this tear is likely to have been associated with the initial partial thickness tear seen in 2002. The natural history of such a tear is a 50% instance of gradual progression over the course of several years. The atrophy suggests that the tear has involved the infraspinatus for some time (several months to a few years perhaps) 2. Mr Donnelly's current condition in the shoulder is a combination of previous trauma in 2002 with gradual progression over time and a newer separate full thickness rotator cuff tear in June 2010 associated with a change of work 3. A logical conclusion from the medical evidence would be that a 50/50 share of liability would be reasonable from the 2002 and the 2010 events." [31] ACC asked Dr Walker for further comment. Dr Walker wrote on 19 April 2012, first noting that a further accident had been recalled when the sequence of events previously claimed by the appellant did not fit with a right supraspinatus injury caused in November 2002. That was because the injury was observed to be of longstanding when seen on ultrasound on 5 December 2002. Dr Walker suggested some scepticism about the recall of another accident. He took the view that the current injury was a gradually deteriorating condition originating with a tear that was first diagnosed in December 2002. 32] By the time of a resumed review hearing on 10 May 2012, there had been three decisions declining cover. That was because there were three claimed dates of accident. They were May 2002, November 2002 and October 2010. The Reviewer considered the following facts to be relevant: 1. that the right shoulder was scanned in 2002 in for comparison only and was non- symptomatic; 2. the chair accident was not reported in 2002; 3. mention of a right supraspinatus tear in an ACC18 form in 2002 was probably a mistake. There is no record of a claim or of treatment for a right supraspinatus tear and the shoulder was not symptomatic (there was no cause for treatment) 4. an account of an acute injury from the chair incident was not made until 2010, and Mr Malone recorded Mr Donnelly as saying it happened 6 years earlier (not 8 years) 5. the ultrasound report in December 2002 that the injury was longstanding is not sufficient to conclude that it was caused by an incident in May 2002; and 6. in other cases evidence has been accepted that rotator cuff deterioration is well known to occur naturally. [33] Mr Donnelly gave oral evidence at the appeal hearing. He was cross-examined on his evidential statement that he had no discomfort in his right shoulder until he fell in May 2002 when a chair was taken from beneath him. In 2010 he had trouble pinpointing the date but his sister had been able to help by looking at calendars and diaries. He had only visited her two or three times in Murchison. [34] In his statement, Mr Donnelly said that he saw Dr Ryan on 14 November 2002 about his right shoulder. He then saw Dr Ryan on 3 December 2002 after an accident to his left shoulder. He said that Dr Ryan filled out ACC forms on 10 December and 20 December for his right and left shoulders. He had treatment from Dr Evison for his left shoulder only. [35] When cross-examined at the appeal hearing, Mr Donnelly was predictably unsure about the dates when he thought the injury had occurred. He agreed that he had completed an ACC questionnaire in which he stated the date of the chair incident as 30 November 2002, but clearly he had no memory of when the incident occurred. He did recall the same accident that was described by his sister in Murchison. 36] The only marker that assisted Mr Donnelly in identifying the chair incident in May 2002 was his sister's evidence. It was clear that Mr Donnelly had no independent recollection of the date of the chair incident, although he would have recalled the place and circumstances. I cannot accept that he had any recollection that Dr Ryan filled out ACC forms for the right shoulder, but it is quite possible that she did, in order to notify ACC of the small tear found on ultrasound. 37] The Reviewer thought that the ACC18's were probably intended for the left shoulder, because no ACC claim was made for the right shoulder. That is a clear possibility but the forms should be accepted at face value in the absence of other evidence. Discussion [38] Ms Coulston for the appellant submitted that the GP consultation of 14 November 2002, which referred to aching across trapezius and into supraspinatus must have been the right shoulder injury because Mr Donnelly did not injure his left shoulder until later in November. She noted that Dr Ryan had furnished medical certificates for the right shoulder and relied on Mr Donnelly's sister's evidence that the accident had occurred and that it occurred in May 2002. [39] The relevance of an accident date in May 2002 is that it could be consistent with a small "longstanding" tear seen in December 2002. [40] The only ACC records that have been presented from 2002 were the two ACC18 certificates for "Torn (small tear) right supraspinatus" with date of accident 30 November 2002, first consultation 5 December 2002. [41] It would have been interesting to compare those with certificates presented for the left shoulder injury in the consultation note on 3 December 2002. All that can be said is that there is no evidence of a claim recorded by ACC for a right shoulder injury of 30 November 2002 and there is no evidence of any treatment either in May 2002, or in December 2002. Although the appellant claimed that the right shoulder caused him trouble for a time after it was injured, the record in December 2002 is that it was non-symptomatic. There was evidently nothing to treat in December 2002, and certainly there is no record of treatment for the right shoulder until 2010. The appellant explained in his evidence that he put up with it. [42] The Court is required to consider the evidence afresh and reach a decision independently of the Reviewer's findings. I consider that the Reviewer's findings were appropriate on the evidence available at the review, although the suggestion that the medical certificates for the right shoulder were in error might be regarded as speculative. [43] But the medical certificates are not supported by any evidence of treatment. On 14 November 2002 Dr Ryan noted aching across trapezius into supraspinatus, but the ultrasound report on 5 December 2002 reported that the right supraspinatus tear was non-symptomatic. [44] In summary, the documents are inconclusive as to any ongoing symptoms of a right shoulder tear following an incident in May 2002. Mr Malone's opinion is that the imaging in 2002 and the investigation in 2010 discloses an injury consistent with an initial traumatic tear in 2002 and expected deterioration over time. Clearly that is correct, but it does not serve to establish on the balance of probabilities that the injury seen on ultrasound in December 2002 was in fact a personal injury caused by accident, as distinct from a small gradual process tear, and does not help to establish that such an injury was caused by the fall which has been described, after which the appellant required no medical treatment. [45] In hindsight, the sequence of events may well seem to the appellant to be clear evidence of accidental injury. But supraspinatus tendon tears are known to "evolve slowly over time", as Dr Walker commented, and the existence of an injury does not establish that it was caused by an accident. [46] On the whole of the evidence, I reach the same conclusion as the Reviewer did. The evidence is insufficient to establish on the balance of probabilities that the supraspinatus condition treated by Mr Malone in August 2010 was a consequence of personal injury by accident in May 2002. [47] For those reasons, the appeal is dismissed. Judge D A Ongley District Court Judge