Heke-Gray v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 114 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JESSE ARTHUR HEKE-GRAY of Whangarei Appellant (Appeal No. DCA 141/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at WHANGAREI on the 18th day of July 1997 DECISION OF JUDGE A W MIDDLETON When this appeal came before me I heard submissions from Ms Martin, advocate for the appellant and from Mr A D Barnett, counsel for the respondent. Following the hearing I issued a memorandum to the parties in which I set out the background to the appeal as being: "This appeal came before me at Whangarei on 18 July 1997. The appellant is now aged 12 and lodged a claim for cover with the respondent in February 1996 in which it was claimed that he had injured his left leg while doing a tae kwon do kick while playing at school. He was subsequently diagnosed by Mr D Lyon, an Orthopaedic Surgeon whose opinion was: "Jesse's illness and continued disability is not a result of an injury but as a result of an infection namely septic arthritis and osteomyelitis." 2 Mr Lyon had been requested to confirm that diagnosis and has done so on a number of occasions. It had been submitted on behalf of the appellant that it was unusual that there should be a spontaneous infection of that nature. The appellant's advocate referred to the fact that the appellant had suffered three incidents of trauma being: (a) a cut foot in August 1995; (b) a painful left hip, thigh and knee following the kicking incident in February 1996 which resulted in his admittance to the hospital; and (c) the appellant was hit in the face by a boy at school on 15 February 1996 which resulted in a black eye. The appellant's submission is that it appears to be unusual that the kicking incident could result in a spontaneous onset of osteomyelitis and that there may have been some predisposing infection which has caused that problem." I directed in that memorandum that the respondent obtain a report from a specialist in the field of pathology or infections as to whether or not the appellant's claim to have suffered a traumatic injury was medically sustainable. Initially, the respondent had referred the appellant to Mr D W Lyon, an orthopaedic surgeon, whose report of 27 August 1996 states: "Jesse was admitted to Whangarei Area Hospital on 21 February 1996 with a history of increasing pain in his left hip and leg. There was no definite history of injury at this time and the General Practitioner referral note does not refer to an injury. I understand there was some vauge (sic) history of an injury although the details to this are not clear. Clinical diagnosis of septic arthritis of the hip was made and he was taken to theatre where pus was drained from his left hip. Subsequent x-rays show the development of osteomyelitis in the bones around his hip and the question arose as to whether the infection was primarily in the hip joint or primarily in the bone itself. He made sufficient progress that he was discharged from hospital on 20 April 1994 but was readmitted again on 23 May 1996 with increasing pain in his hip. Further investigations then showed development of a further abscess and this was once again surgically drained. Jesse has remained in hospital since this time on antibiotic therapy. He is now starting to be mobilised on crutches. He has significant incapacity and will have a permanent disability as a result of his infection. He may develop chronic osteomyelitis of the bone and certainly has suffered extensive damage to the hip joint itself. It is likely that this joint will become permanently fused as the result of the infection. 3 In my opinion Jesse's illness and continued disability is not a result of an injury but as a result of an infection namely septic arthritis and osteomyelitis." A further report from Mr Lyon on 29 November 1996 states: " In reply to your letter of 26 November 1996 the following are my comments: I have read the General Practitioners notes of February 1996 indicating that Jesse sustained a kick a few days previously and was tender behind his left knee. In my opinion this kick is likely to be coincidental to the development of septic arthritis, which was most likely developing as a spontaneous septic arthritis. The kick was in an area away from the site of the septic arthritis, and is extremely unlikely to have played any causative role in producing the bone and joint infection." When the respondent declined the appellant's claim for cover the appellant applied for a review of that decision and his advocate provided a lengthy submission supported by a number of articles taken from various medical texts. The basis of the submission was that the osteomyelitis from which the appellant is found to be suffering was of traumatic origin and not an infection as described by Mr Lyon. The review officer felt bound to follow Mr Lyon's reports and declined the application for review. As I stated after hearing Mr Barnett's submissions and reviewing the submissions provided by Ms Martin, I was concerned that the only specialist medical evidence was that provided by Mr Lyon and the various articles submitted by Ms Martin which, of course, did not relate specifically to this appellant's case. Following my memorandum the file was referred to Mr M J Wilson, a pathologist whose report of 29 August 1997 states: "I received your letter on Wednesday 27 August together with copies of medical reports from Mr D Lyons and reports from Maunu Medical Centre together with the District Court Memorandum. I have perused Whangarei Hospital case notes. From these reports I made the following notes: Jesse Heke-Gray presented at Whangarei Hospital on 21.2.96 at age 11 years 6 months with pain in the left hip and leg which was diagnosed as septic arthritis. The referring doctor noted pain present for six days. It was subsequently found that osteomyelitis was present. He required further treatment including drainage of another abscess on 23 May 1996. The organism was staphylococcus aureus. There had been no skin or chest infection. He has a continuing disability as a result of this bone infection. This boy had suffered injuries in the past which are documented in the information you sent me: 4 1. Black eye - struck at school 15.2.1996. 2. Lacerated foot - 10.8.1995 These are documented in Mr Lyons letter of 21.3.97. 3. Painful left knee and hip since an attempt to kick on Thursday and missed mark. Tender behind left knee. (Note: "Sen ems to be in lower end sartorius muscle. Tender of ver hip joint.") (sic) - Information from Maunu Medical Centre notes 19 February 1996. I interpret this as "seems to be in lower end sartorius muscle. Tender over hip joint. I would interpret Thursday as meaning the preceding Thursday which was Thursday 15 February 1996, ie 6 days before the diagnosis of septic arthritis. I have no expertise in orthopaedics but am prepared to comment on this case, as presented to me in these documents, in terms of the aetiology and pathology of osteomyelitis. Children are susceptible to osteomyelitis because of the special nature of the growing end of bones (the metaphysis and the epiphyseal plate). These areas have an increased vasculature which can provide a suitable nutrient focus for blood borne bacterial organisms which might lodge at this site and begin an infection. 25% of cases have a history of a recent infection (most commonly a skin or respiratory tract infection). The organism most commonly isolated is staphylococcus aureus (60-90%) followed by streptococcus species (usually S.pneumoniae), haemophilus influenza type B, and gram negative organisms such as Escherichia coli, pseudomonas and others. In joints such as the hip and the shoulder the metaphysis is intra-articular and osteomyelitis in these joints may produce a septic arthritis. Boys are affected about twice as often as girls. It has been postulated that males are more likely to suffer minor trauma than females. It has been suggested that minor trauma in the metaphysis region of joints may lead to small haematoma formation, which then provides a suitable site in which a passing blood borne organism could establish a foothold, proliferate and cause subsequent osteomyelitis. Many cases of osteomyelitis occur de novo without any known trauma. If there were trauma (and the trauma need not have been major) to an area then this could be a predisposing factor in the development of osteomyelitis. Comment on this case: Jesse Heke-Gray presented with a septic arthritis and was then found to have osteomyelitis involving the left hip. This presentation would be consistent with a primary osteomyelitis which has then produced a septic arthritis. He had a history of injury on three occasions. In my opinion the black eye and lacerated foot could have no significance. The documented Maunu Medical Centre visit of February 1996 records a complaint of pain in the knee and hip following an attempt to kick on Thursday. The medical record of examination, documents tenderness over the hip joint (the side was not stated but this was presumably the left side) "Tender of ver hip joint" (sic). This record might indicate a number of possibilities. 1. On February 15 and/or February 19 the osteomyelitis - septic arthritis was already present and was producing symptoms even though the diagnosis had not yet been made. It was the infection and not an injury producing pain. 2. On February 19 there was tenderness over the hip joint because of an injury and at that stage osteomyelitis may or may not have yet developed. 3. The tenderness was unrelated to injury or infection. I would accept as the most likely probability that on February 19 the tenderness was related to an infection which was already present. He presented with septic arthritis two days later. In the Court Memorandum Jesse states that he had injured his leg while doing a Tae Kwan Do kick while playing at school. The extent of this claimed injury is not elucidated. He was not examined until 4 days later. Perhaps the court is able to determine this. I have no way of doing so. There is a documented sequence from misplaced kick - to observation of hip tenderness - to diagnosis of septic arthritis/osteomyelitis. Summary: If the "kick" was held to be significant and there had been an injury to the hip from the kick of 15 February 1997 then in my opinion it is possible that this provided a nidus in which a fortuitous blood borne organism took hold and caused osteomyelitis and the disease was then accident related. If the "kick" was held to be insignificant then the cause of the osteomyelitis was idiopathic and not accident related. I cannot favour either of these possibilities and based on the information I have there is an equal possibility (50/50) that the infection was/was not injury related." When Dr Wilson's report became available Mr Barnett referred it to Mr Lyon for his comment which he provided on 12 September 1997 and is: 6 "In reply to your letter of 9th September 1997 I have been asked to comment on Jesse Heke-Gray in the question as to whether his osteomyelitis and septic arthritis of his left hip could have been accident related. I received a copy of the report from M.J. Wilson, Pathologist. I refer to the sequence of injuries that is black eye when struck at school on 15.2.96, a lacerated foot on 10.8.95 and an injury to his left knee when he attempted to kick with his leg and missed the mark with resulting in some tenderness behind his left knee. In particular I note that this injury occurred on 15th February 1996 and he was admitted to Whangarei Hospital on 21st February 1996 with a diagnosis of septic arthritis of his left hip and also subsequently was also noted to have osteomyelitis of his left femur. I note Mr Wilson's comments that osteomyelitis may occur in a previously injured area. Of note is the injury to his left knee area with some pain and tenderness behind his knee which was not the site of his presentation of pain, that is his left hip, when presenting to Whangarei Hospital. Also of note was that he had no skin lesion or laceration or obvious source of skin infection prior to the development of his osteomyelitis. I would like to point out that most cases of osteomyelitis and septic arthritis appear to arise spontaneously but on many occasions there is a previous history of minor injury which is usually thought to be coincidental. Children are often involved in frequent minor injuries and it is not thought that these contribute to the development of septic arthritis. In particular in this case, Jesse Heke-Gray appeared to sustain an injury while attempting kick with his left leg. Any pain that developed following this would be almost certainly a muscle or ligament sprain and this in particular would not be associated with development of septic arthritis or osteomyelitis. It would be more likely that a direct blow on to a bone causing a bone bruise or a haematoma around the bone could contribute to the development of osteomyelitis. This was not the situation in this case. Opinion: I reiterate that I did not see any evidence that the minor injury sustained around the left knee area had anything to do with the development of septic arthritis or osteomyelitis which subsequently developed in the left hip area. I do not agree that there was an equal possibility that the infection was or was not injury related. I think the possibility that this situation was injury related is extremely remote. If further evidence is required may I suggest that a further opinion from a paediatric orthopaedic surgeon in a busy trauma centre such as Starship Hospital, may be able to comment further as such a centre would be dealing relatively large numbers of children with bone and joint infections." Following receipt of that report each party have now provided me with additional submissions. 7 The factual background has been clearly set out in the medical reports and the issue before me is whether the appellant has satisfied the onus on him to establish on the balance of probabilities that the osteomyelitis he now suffers is of traumatic origin. While the reports refer to three events which may have triggered the onset of osteomyelitis they being, a lacerated foot on 10 August 1995 and a black eye suffered on 15 February 1996 and the knee injury arising out of the kicking incident. Both Mr Lyon and Dr Wilson exclude the first two as the cause of the appellant's osteomyelitis. The only other event submitted by the appellant as a possible cause of the problem was the incident on 15 February 1996 when he suffered a painful left knee and slipped after "attempting to kick and missing his mark". Dr Wilson in considering the kick concluded: "I cannot favour either of these possibilities and based on the information I have there is an equal possibility (50/50) that infection was/was not injury related" Further Mr Lyon has always been of the opinion that the problem was not caused by an accident and after reading Dr Wilson's opinion came out strongly against the possibility that osteomyelitis was related to an injury. Mr Lyon has always been of the view that most cases of osteomyelitis arise spontaneously and that in many of those cases where there is claimed to have been a minor injury the appearance of osteomyelitis is thought to be coincidental. However, he considers that such minor injuries do not lead to the development of septic arthritis. Mr Lyon's conclusion was that this appellant, while he did sustain an injury in attempting to kick with his left leg the pain which developed following the incident, would be of muscular or ligament strain and would not be associated with the development of septic arthritis or osteomyelitis. This is consistent with the finding of the first medical certificate in which the appellant's General Practitioner diagnosed "strain (L) hop and knee" The conclusion which is evident from the medical reports is that at best Dr Wilson attributes trauma as perhaps contributing only 50 percent of the problem but he appears to be uncertain while Mr Lyon is adamant that trauma has played no part in the appellant's problem. I must be guided by the medical reports. As I have already stated the onus is on the appellant to satisfy the Court that on the balance of probabilities his problem was caused by an accident. The medical evidence clearly does not establish that fact and the appeal is dismissed. DATED at WELLINGTON this 28 day of Mary 1998 A W Middleton District Court Judge dc14197.doc(rd)