Horsburgh v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 261 /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 JOHN LAURIE HORSBURGH DCA 127/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1998 APPEARANCES: Mr J L Horsburgh in person Ms L Rice counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent's decision to decline any ongoing entitlements to the appellant on the grounds that his ongoing problems were wholly or substantially related to his underlying osteoarthritis rather than as a consequence of his personal injury by accident, was correct. 2 BACKGROUND On 23 September 1994 the appellant lodged a claim for compensation in respect of a shoulder injury which he wrenched when he caught a roller door as it was falling off its bracket. The injury was diagnosed as a rotator cuff tendon tear of the left shoulder. The accident was said to have occurred on the 13th June 1994 Although the claim was lodged on 23 September 1994 it appears that no entitlements were sought under it by the appellant until about August 1995 when the appellant sought loss of wages and medical expenses. It was at that point that the appellant had been referred by his GP to Mr MacDiarmid, Orthopaedic Surgeon. He reported to the appellant's GP on 19 September 1995 and stated: "He presents with osteoarthritis involving his left shoulder and looking at the x-rays I think that these are degenerative changes of long standing. I suspect his recent injury has aggravated a pre-existing condition. His grievance is not only pain but stiffness in the shoulders. He has only approximately 500 of glenohumeral abduction; no external rotation and forward flexion to 900 on the left side. The treatment of this should be conservative. I understand that Mr Horsburgh has problems with his job in the roller door industry and this is quite understandable as he is unable to lift because of his reduced reach. I think it is better that he changes his activities and his job to suit his shoulder. If he continues to have significant pain and cannot cope, then certainly a total shoulder joint replacement could be considered. It would be my advise however that this be reserved for such a time that his life is significantly disadvantaged by his stiffness and pain." In a further report from Mr MacDiarmid to the appellant's Case Manager. He stated: "Mr Horsburgh's condition is not the direct result of an injury on 13.6.95. The changes in his shoulder are long standing." It was as a consequence of that advice that the Corporation notified the appellant that it could not consider he was still suffering the results of the accident and that further entitlements could no longer be had in respect of that personal injury." The appellant sought a review of that decision and a hearing took place on 21 February 1996. As a consequence of that hearing the Review Officer sought further opinion from Mr McDiarmid as to whether the appellant's ongoing incapacity was in any way related to the accident of 13 June 1994 in which he injured his left shoulder. For whatever reason the Corporation could not obtain a response from Mr McDiarmid to that question and therefore referred the matter to Dr N R Freeman, General Specialist Surgeon, and he advised: 3 "It seems definite that the claimant has osteoarthritis of the shoulder and that this was established before the accident of 13 June 1994. Mr McDiarmid appears to consider that the claimant's incapacity has been caused by aggravation of this pre- existing condition - an entirely reasonable view. The physical signs described by Mr Diarmid do suggest that the major part of the problem is in fact the arthritis. I note that, although the arthritis was present before the accident, it did not interfere with the claimant's capacity to work. I would have little difficulty in accepting that the existing incapacity is the result of an accident related aggravation of a pre-existing condition at this stage. The arthritic process is one of progression at a variable speed and there will come a time (I doubt whether we are at this stage yet) when the effects of aggravation will have ceased to operate and the continuing problem becomes due to the progressing degenerative disease". In his decision of 4 March 1997 the Review Officer stated that in the light of Mr Freeman's opinion he found in favour of the appellant on the balance of probabilities that he was still currently incapacitated as a result of the aggravating effect of the accident of 13 June on his pre-existing condition. The Review Officer noted that a time would come when the effects of the aggravation will have ceased to operate and the pre-existing condition will be the reason for any ongoing incapacity but that stage had not yet been reached. It seems as though the appellant returned to work and there was no further activity on the file until October 1997 when the appellant made a claim for private hospital costs in respect of his shoulder. On 6 November 1997 Mr McDiarmid wrote to the respondent stating inter alia: "Subsequent to my phone call I confirm that I have reviewed Mr Horsburgh with an exacerbation of Osteoarthritis with his left shoulder. Indeed his pain was so severe that he is unable to work. I admitted him acutely to Tauranga Hospital and arthroscoped his shoulder to confirm osteoarthritis change and injected the joint with steroid. This has certainly helped his pain. I would regard his most recent episode of shoulder pain to be an exacerbation of the pre-existing medical condition for which he went to ACC to review and for which the Review Officer accepted his claim as being a liability of ACC." As a consequence of that report from Mr McDiarmid the Corporation advised the appellant on 12 November 1997 that it was cancelling further entitlements on the basis that his most recent episode of shoulder pain was an exacerbation of his pre- existing medical condition. The appellant lodged an application for review of that decision and produced a further letter from Mr McDiarmid dated 13 November 1997 in which he stated: 4 "If you remember I reviewed you at Whakatane Hospital Outpatients for the painful left shoulder. This happened after an injury in 1994 when a garage door slipped off its hinge and you twisted and wrenched the shoulder. At my assessment there is no doubt that you had osteoarthritis change in the shoulder and I understand that this claim was not accepted by ACC but after going to review it was. At your appointment again on 3 October 1997 at Whakatane Hospital it was confirmed it was an exacerbation of the same condition in the left shoulder that has been exacerbated by the injury in 1994." In his decision dated 27 February 1998 the Review Officer ruled that the medical evidence was clear that the appellant's ongoing incapacity was caused by his pre- existing osteoarthritis condition and not as a consequence of personal injury by accident. The appellant filed a Notice of Appeal in relation to that decision and for the purposes of this appeal produced two further reports being a further report from Mr McDiarmid dated 9 April 1998 and a report from Mr Grant Dixon, Physiotherapist, dated 30 March 1998. Mr McDiarmid's report stated: "Following our conversation on the telephone on 9April 1998 I confirm that you suffer from osteoarthritis of your left shoulder. I am aware of the fact that you had no symptoms in your left shoulder before June 1994 when you first injured your shoulder lifting a roller door into place at the workplace. While the shoulder pain initially settled down there was a further flare-up again and you were seen at Whakatane Hospital by Mr Kingsley Foote in September 1995 and I later saw you and made the diagnosis. At that time I replied to requests for information to ACC that you had osteoarthritis by your shoulder which was exacerbated by the injury in 1994. I understand that they turned your claim down but it went to review and the Review Officer accepted liability for the claim. You have had ongoing problems with the left shoulder, the last problem occurring when you were wheeling a barrowload of concrete and developed quite severe pain. As a result of this you underwent an arthroscopic debridement, washout and intra articular steroid on 20 October 1997. You are scheduled for a total shoulder joint replacement. While it is unusual for an injury as you describe to cause the problem that you have I have now seen two cases of osteoarthritis developing after an injury to the shoulder." Mr Dixon's report stated: "I have been involved in clinical practice as a manipulative physiotherapist for 18 years, and it is my clinical observation and also generally accepted that osteoarthritis changes as they affect the shoulders are usually secondary to earlier trauma. As a non-weight bearing joint, the shoulder is not affected by arthritic 5 changes as the spine, hips, knees and ankles are in a primary degree through the effects of loading OA changes in shoulders are often secondary to fracture, in and around the joint, this location/subluxation, or rotator cuff tendon tears: - all traumatic events." The Statutory Provisions applicable to this appeal are those of section 10 of the Act which states: "10. General exclusions from cover --- (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 (6 ) 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 declare 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. In his submissions to this Court, the appellant submitted that prior to the wrenching of his shoulder in June 1994 he had had no problem whatsoever with his shoulder but that since that accident he has had nothing but problems and ongoing pain. He submitted that although he accepted that he had osteoarthritis in his shoulder he believed that it would have remained asymptomatic as the shoulder joint was not a load bearing joint such as a knee or ankle. It was his submission that his present incapacity was caused by the injury of June 1994. Ms Rice, counsel for the respondent, submitted that the medical evidence established that the appellant's current problems with his shoulder were caused wholly or substantially by the underlying osteoarthritis condition. She submitted 6 that the evidence was clear that the appellant's ongoing pain and problems associated with his shoulder were not due to personal injury by accident for which he had cover. Counsel submitted that the decision of this Court in Burke (Decision 198/98) was applicable and she adopted the reasoning of this Court in that decision. DECISION The appellant suffered a tear of the rotor-cuff tendon in his left shoulder in a wrenching accident which occurred in June 1994 and it was that injury for which he was granted cover. The Corporation's file would indicate that other than lodge the claim for cover no claims for entitlement were made at the time of the injury or indeed for the 12 months after the injury. The evidence is not clear but it seems as though the appellant soldiered on and it was some 12 months later that a flare up occurred which required a course of physiotherapy and related treatment and it was at this time that specialist opinion was obtained. From the examination carried out by Mr McDiarmid and the x-rays that were taken in November 1995 it is clear that the appellant had osteoarthritis in his left shoulder as a pre-existing condition. There is reference in Mr McDiarmid's report of 15 November 1995 that he was referred to an orthopaedic surgeon in 19 September 1994 and that a report at that time indicated that the degenerative changes caused by Osteoarthritis were already well described by that time The specialist evidence which has been obtained since that first report of Mr McDiarmid confirms that the appellant is suffering from the effects of osteoarthritis in his left shoulder. As is noted from Mr McDiarmid's report of 9 April 1998, he has had ongoing problems with his shoulder, the last occurring when he was wheeling a barrow load of concrete and developed quite severe pain. It was as a result of that incident that he underwent arthroscopic debridement, washout and intra-articulus steroid injection. No where is it suggested in any of the reports that the particular symptoms which the appellant is experiencing are as a consequence of a tear of the rotator cuff tendon. As was foreshadowed in the Review Officer's decision on 4 March 1997, the time would come when the effects of that injury would cease to operate and the pre-existing condition of osteoarthritis would be the reason for ongoing incapacity. I find that the medical evidence makes it clear that that state of affairs has now arisen and that the sole cause of the appellant's ongoing incapacity is his underlying and pre-existing osteoarthritis. It was the appellant's submission that even if it be found that that is the medical situation, nevertheless, his whole history of shoulder problems can be shown to have commenced with the accident of June 1994. He had no problems with his 7 shoulder prior to that time and has nothing but problems since. It is on that basis that he considered that entitlement should continue. Much as this Court has sympathy with the appellant's physical condition and the plea that he makes, the fact of the matter is that if the medical evidence is such that the only cause of his ongoing problem is the pre-existing degenerative condition than the provisions of the Act, namely section 10, exclude entitlement. Ms Rice, counsel for the respondent, referred to and supported the decision of this Court in Burke (Decision 198/98). In that decision I stated: "If the trauma of the accident hastens or precipitates the onset of the symptoms of the pre-existing degenerative condition, then once the medical opinion is that it is the degenerative condition which is wholly or substantially the cause of the ongoing symptoms then cover is excluded. Whilst the physical effects of the trauma are present, i.e. the twist or strain or such like, medical opinion would likely be that it was as much a contributing cause and a claimant would be entitled to cover for so long as the trauma injury proved to be causative. Once the effects of the injury had receded and the medical opinion was that it was the residual degenerative condition which was wholly or substantially the cause of the ongoing problem then at that time the claimant was no longer entitled to cover under the Act by virtue of section 10. In the circumstances of this appeal I find that that reasoning is wholly applicable. It matters not that the degenerative condition may have been asymptomatic and has been made symptomatic by the trauma of the accident. Once the injury caused by that trauma has gone the fact that the degenerative condition remains symptomatic is unfortunate and regrettable but it is not a state which permits ongoing entitlement. For the foregoing reasons therefore this appeal is dismissed. DATED at WELLINGTON this 9th day of December 1998 MJ Beattie District Court Judge Horsburgh.doc(gm)