Prasad v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2014] NZACC 34 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 272/13) BETWEEN KAMAL PRASAD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 18 November 2013 Appearances: Mr J P Miller for appellant Ms L M Hansen for respondent Judgment: 19 February 2014 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The question in appeal is whether the appellant's lateral epicondylitis was caused to a significant extent by a single event and was not wholly or substantially a gradual process. [2] Mr Prasad was working as a taxi driver on 9 November 2008 when he lifted a suitcase into his taxi and felt sudden left elbow pain. [3] He saw his general practitioner the next day and made a successful application for cover for left elbow sprain. The question in this appeal however is whether he should have cover and entitlement for lateral epicondylitis involving a tear of the common extensor tendon. [4] The general practitioner's patient note on 11 November 2008 recorded: "Pain left elbow again after lifting heavy suitcase Sunday while at work (Taxi). Prev settled fully with NSAIDS/ Steroid injon but declines this again today. Not on aspirin." [5] Later medical opinions considered it relevant that the note referred to left elbow pain "again" and to something previous that settled fully with NSAIDs and steroid injection. That must have been before the incident on 9 November because it obviously referred to a period of treatment and no other note of treatment on 9 November was produced. [6] A note on 27 November recorded that the appellant had a bad reaction to Kenacourt. It described the left lateral epicondyle symptoms. Details of symptoms are not important because the diagnosis of lateral epicondylitis is not in dispute, subject to one point, namely that the respondent says that the suffix "itis" generally denotes an injury but the appellant's condition was likely to have been a degenerative condition. [7] After an ultrasound scan on 16 February 2009, the appellant's condition was described as chronic left lateral epicondylitis. The scan report read: "Abnormal thickening and heterogeneity of the common extensor origin and cortical irregularity subjacent. The lateral collateral ligament subjacent also appears abnormally hypoechoic. There is no large effusion. The other remaining extra- articular muscles and ligaments appear normal. CONCLUSION: Partial tear common extensor origin." [8] The appellant claims that he suffered a partial tear of the common extensor origin in the lifting incident on 9 November 2008. The respondent says that the description "tear" is a misnomer. It suggests a single incident, but the state of the tendon is typical of the degenerative process of tendinosis. [9] The appellant's cover claim was first considered as a work injury claim for a gradual process injury and was declined. The Corporation took advice from Branch Medical Advisor Dr Mary Obele who wrote: "The medical literature is not supportive of there being any causal relationship between taxi driving work and tennis elbow. There are no convincing bio-mechanical risk factors to indicate that people doing such work tasks, or work tasks of a similar nature, are at significantly greater risk of developing this problem." Her advice to the Corporation noted that epicondylitis may occur suddenly due to direct impact injury and may be caused by work involving repetitive force, which was not found in the appellant's work history. [10] After a decision by the Corporation on 24 February 2009 declining cover, a further opinion was sought from Dr Obele. She advised that such a lifting incident would not usually cause a tear of the extensor tendon in a person who does not have underlying changes. She noted that ACC had an obligation to pay for the "substantial cause" of the condition but not for the last straw precipitating the condition, or for a minor event causing pain. [11] The correct position is somewhere between those points. Cover is available for an accident making a significant contribution to the condition so long as the condition is not caused wholly or substantially by gradual process or disease. Of course evidence of a precise degree of causation is usually elusive. As the Corporation's position firmed up by further consultation with its Clinical Advisory Panel, it took the view that any significant cause associated with lifting the suitcase was highly unlikely. [12] The Corporation accepted cover for left elbow sprain in a decision of 30 March 2009. It is to be noted that the cover went only that far and did not extend to lateral epicondylitis. That has a bearing on the onus of proof concerning the challenge to the Corporation's later decision on 30 September 2009 deciding that the appellant's "current condition is no longer the result of your personal injury of 09/1 1/2008". [13] The only covered personal injury of 9 November 2008 was an elbow sprain. Lateral epicondylitis was not covered. For lateral epicondylitis this was not a decision suspending or cancelling an entitlement in terms of s 117, for which the Corporation had to justify being "not satisfied" concerning continuing entitlements see Ellwood v ACC [2007] NZAR 205 (HC). The Corporation had to be "not satisfied" that continued entitlements were not available for the elbow sprain, but I approach this appeal on the basis that it is for the appellant to show grounds for cover for lateral epicondylitis. [14] In June 2009, orthopaedic surgeon Mr Jon Cleary applied for treatment by ultrasound guided autologous blood injection. The report of the resulting ultrasound stated that it became apparent that the sonographic appearance underestimated the severity of the tendinopathy with focal linear intrasubstance tears involving about 50% width. A second autologous blood injection was also done. [15] ACC then obtained an opinion from Mr L J Tonkin, a general orthopaedic and hand surgeon. Mr Tonkin wrote on 9 September 2009 with his opinion that the epicondylitis was caused by the lifting incident. He wrote: "Mr Prasad showed me how he lifted the case. The lifting involved forward flexion of the shoulder, flexion of the supinated forearm and then external rotation of the arm to place the bag in the trunk Left lateral elbow pain ensued and has persisted. He has had two autologous blood injections and a steroid injection without significant improvement. ... From the history and clinical examination Mr Prasad has chronic left lateral epicondylosis and associated radial tunnel syndrome. In answer to your specific questions: 1. The diagnosis is chronic left lateral epicondylosis with associated radial tunnel syndrome. 2. The pathology is that of angiofibrovascular response or tendinosis together with compression of the posterior interosseous nerve. 3. I believe that Mr Prasad's left elbow pathology was caused by lifting the suitcase on 9/1 1/08. 4. The event of 9/11/08 when he lifted the suitcase has set off the process of lateral epicondylosis, which has also led to radial tunnel syndrome, 5. As he has not responded to conventional conservative treatment I think he is a candidate for excision of the pathological tissue from the extensor origin, decompression of the posterior interosseous nerve, and repair of the extensor origin. [16] The Corporation did not accept this view and referred the question of causation to its Clinical Advisory Panel. In a Panel recommendation signed off by three members on 22 September 2009, the Corporation was advised that it was medically impossible that the appellant's elbow pathology could be caused by the lifting incident. The Panel's reasons were: "a. In view of the fact that the client had evidence of this condition previously documented in the medical record and b. There is no scientific literature to support Mr Tonkin's contention that a single event can cause this degenerative condition (it should be noted that the presence of a partial tear as described on the US scan is indistinguishable from tendinosis and where it is referred to it should be considered as part and parcel of that degenerative tendinopathy process), c. There is no evidence that lateral epicondylosis can cause radial tunnel syndrome or vice versa. As noted earlier the two conditions may coexist in 5-10% of cases and may explain why symptoms are refractory to treatment." [17] The Corporation then issued its decision of 30 March 2009. There have been three review decision and this appeal concerns only the last one. In a review decision on 16 April 2009, a reviewer confirmed ACC's decision and dismissed the review. The second review [18] More than two years passed, during which the appellant's condition did not improve. His advisors then obtained another opinion from Professor Rocco P Pitto, orthopaedic surgeon at Auckland. In a letter of 25 November 2011, Prof Pitto described the incident as a wrenching of the left elbow when lifting a heavy suitcase from road level to the taxi trunk when the appellant experienced sudden onset of sharp pain in the elbow, with periarticular muscle contracture. He concluded: "In my opinion, there is a direct link between the left elbow accident of 00/1 1/08 (see above mechanism of injury) and current clinical settings, symptoms. There are no other factors known to me, that have wholly or substantially contributed to the injury (ACC injury claim currently under dispute) which requires further management/surgery." [19] The opinions and Mr Tonkin and Prof Pitto were given without explanation of any factors that would distinguish a traumatic tear from a gradually occurring epicondylitis. ACC issued another decision on 2 May 2012 confirming its earlier decision. The appellant made an application for review, but there was a question whether the second decision was an administrative confirmation and whether it was open to review. That was resolved in the appellant's favour in a review decision on 24 October 2012. [20] Prof Pitto wrote a further letter on 8 March 2013. After describing the lifting incident, he said: "The injury of the 09.11.08 caused damage of the periarticular soft tissues of the left elbow (US dated 16.02.2009 showed partial tear of left extensor muscles origin). Mr Prasad experienced sudden onset of sharp pain in the elbow, with periarticular muscle contracture. Lateral elbow pain persisted since injury, despite appropriate conservative management including physiotherapy and serial local steroid injections. In my opinion, there is a direct link between the left elbow accident of 09/11/08 (see above mechanism of injury) and current clinical settings, and symptoms. There are no other factors known to me that have wholly or substantially contributed to the injury. There is no clinical and imaging evidence to support the contrary (i.e. pre-existing, injury non-related factors). The patient was pain free and had a normal function of the left elbow before injury. Mr Tonkins report dated 09.09.09 is in line with my opinion. Mr Tonkin is an Orthopaedic surgeon with special interest on upper extremity pathologies. On the other hand, Dr Obele's reports suggest a non-traumatic, degenerative cause of the current left elbow problems of Mr Prasad. I do not concur with her views; the assumption that there are pre-existing conditions is not supported by clinical evidence. I note Dr Obele is a BMA, not an upper limb specialist. The CAP comment dated 22.09.2009 reflect the position of the BMA. I would like to stress the fact that there is no evidence supporting the assumption that this patient had pre-existing conditions. I note Mr Prasad was 53-year-old when he sustained the elbow injury, he was pain-free and had a normal, unrestricted function of the joint. He was working full time as a taxi driver." [21] This opinion was based on the temporal link between the onset of pain and the lifting incident. Mr Tonkin and Prof Pitto applied their specialist knowledge and experience to the question, but neither explained how the cause could be distinguished from a gradual process condition. Not concurring with Dr Obele's views was not an argument in itself. The reputed absence of clinical evidence of a pre-existing condition does not explain two matters, (a) the general practitioner's record of previous symptoms and treatment, and (b) the view that was argued by the Panel that a pre-existing condition is the most likely cause in the absence of a plausible forceful accident. [22] The Panel then issued a further recommendation on 9 April 2013. This document was signed by six members of the Panel including three orthopaedic surgeons, who endorsed the following: ". The client appears to have had symptoms of tennis elbow prior to his covered accident according to the GP records dated 11/1 1/2008 and the description of the incident on the ACC45 injury claim form. The GP records state 'Pain left elbow again after lifting heavy suitcase while at work (Taxi). Prev settled fully with NSAIDS/ Steroid injan but declines this again today...' . The evidence in the literature indicates conclusively that the pathological process in tennis elbow is angiofibroblastic degeneration or tendinosis of the common extensor origin. Angiofibroblastic tendinosis is interpreted as an immature reparative process with evidence of microtearing set in a background of focal hyaline tendon degeneration. The tendon most commonly affected is that of extensor carpi radiali brevis (ECRB). There are no inflammatory cells present. Where a tear of the ECRB is noted this is usually in keeping with Boner's classification of a tear superimposed upon the tendinosis already present and probably represents a visible extension of the degenerative loss of collagen linkages within the tendon." [23] The Panel noted that work related lateral epicondylitis could be considered as a work related gradual process injury (not a single event) and said that "There is no evidence that trauma associated with the onset of symptoms is other than coincidental. " The meaning of that no doubt is that some events precipitate pain and some don't. Finally, in its recommendation the Panel stated: "The information in this client's situation suggests that his tennis elbow and radial tunnel syndrome is the result of a gradual process that at best has become symptomatic following the lifting incident. Evidence of tennis elbow prior to the covered incident supports this assertion, The tear of the common extensor tendon is considered to be part and parcel of the spectrum of the underlying condition which is effectively a tendinopathy. A causal link is not established. [24] The substantive review was heard on 11 April 2013. Mr Prasad did not attend the review hearing, which was a problem because the Reviewer had the general practitioner's consultation note in relation to previous symptoms, but those symptoms seem not to have been obtained in the history taken by Mr Tonkin and Prof Pitto. In his decision the Reviewer said: "Professor Pitto appears to accept that Mr Prasad had no previous problems with his elbow before the accident in November 2008. However, there is evidence, scant, but evidence that more than suggests that Mr Prasad had an issue with his elbow before the lifting event for which he received an injection. It is unfortunate that those records are no longer available, but I find there is enough in the early records to show that Mr Prasad's presentation after the lifting event was not first time Mr Prasad had this problem. The consultation note has Mr Prasad presenting with left elbow pain 'again', Although Mr Prasad has indicated previously that he cannot recall any earlier problem, I have not heard directly from him." [25] The Reviewer decided that the facts of a re-existing problem leant weight to the CAP's conclusion and that the CAP discussion was far more detailed and considered all relevant information. I agree with the Reviewer's assessment that the GP consultation notes were acceptable evidence of previous left elbow problems in the absence of any contradictory evidence of equal or greater weight. [26] After this review, the Panel provided yet another opinion, dated 17 September 2013, this time signed by a full Panel of eight members. The advice was prefaced by a functional description of the common extensor tendon and the statement that the normal tendon is exceedingly strong and requires significant force to cause a tear, continuing: "In true traumatic situations an avulsion would be expected, as opposed to a partial thickness tear which is considered to be more in keeping with a tear that is part of the spectrum of chronic tendinosis. In this situation it is unlikely that a significant force was being transmitted through only the common extensor tendon during the lifting incident, such to be able to cause a tear of that tendon, given the other muscles involved in the movement. Rather, the information would suggest that the fibres gave way gradually over time as part of the known pathologic process and that the elbow was symptomatically aggravated by the accident. The ultrasound scan of the elbow on 16/02/2009 reported abnormal thickening and heterogeneity of the common extensor origin with subjacent cortical irregularity. The conclusion was that the scan showed a partial tear of the common extensor origin. There were no signs of tear acuity on this scan such as fluid, blood and debris to suggest a recent tear. The findings appear consistent with those expected in lateral epicondylitis. The presence of cortical irregularity would suggest that the process has been underway for some time (i.e. pre-dates the accident). We note that the client had symptoms in his left elbow prior to this incident according to the GP notes dated 11/1 1/2008. There do not appear to be any other claims for the LEFT elbow. We also note that swelling and/or bruising of the left elbow was not reported when the client first presented to his GP, both of which would be expected findings in the case of an acute traumatic tendon tear." [27] The Panel's recommendation was as follows: "In cases of lateral epicondylitis there may be a defect in the tissue (as there is in this case) and use of the word 'tear' to refer to this defect can be misleading. The suffix 'itis' is a misnomer as histological studies of the tendon reveal fibroblasts, vascular hyperplasia and disorganised collagen as opposed to inflammatory cells. The word tear' implies injury and the need for repair, however this is a degenerative enthesopathy and the surgical treatment in most cases is debridement of the degenerative tissue as opposed to repair of the 'tear'. Tendinosis of the common extensor tendon is considered a progressive degenerative or intrinsic disease condition of the tendon and 'tears' or defects in the tendon are part of the spectrum of this process that includes tendinosis, partial thickness tear, full thickness tear and complete rupture. This is the same process that occurs in other tendons elsewhere in the body. It is unknown as to what causes the pain of epicondylitis. As noted in our previous CAP comment, where a tear of the extensor tendon is noted this most likely represents a visible extension of the degenerative loss of collagen linkages within the tendon which is all part of the ongoing tendinopathic process. At some point, the fibres will separate as part of the process without the need for trauma. The evidence in this case (as outlined above) suggests that the tear of the common extensor tendon is most likely to be part of the underlying tendinopathic process (tendinosis progressing to partial thickness tear etc) that was at best symptomatically aggravated by the covered accident." [28] Finally, there is a letter from the appellant's GP Dr Rod Ferguson. This undated letter states: "Kamal has come to see me on your recommendation after talking to you about why his claim has been turned down. I was surprised he was declined also especially in light of the ultrasound showing a tear in his common extensor tendon. I feel the mistake has been made in assuming that this is a gradual process claim when he has had an acute tear with a lifting event. He still has pain and stiffness at the elbow, especially on waking and this is taking time to free up each day. He is still tender at the lateral epicondyle and he has problems with pain with fully extending the elbow and lifting bags, suggesting the tear is not healing. He has been turned down as a gradual process injury but with the evidence of a tear in the extensor tendon I feel this was an acute injury as it came on while lifting. He has a tear big enough to see on ultrasound rather than the microscopic tearing of a gradual process injury. As the pain came on with a lifting event I do not see why this is not covered as an acute injury." Submissions [29] The opinions supporting cover for a single event injury rest on the onset of symptoms coinciding with lifting a suitcase, and on the tear discernible in the ultrasound scan. The respondent's advisory panel has a different explanation, in short that there is a known degenerative process that results in parting of tendon fibres manifesting as a tear and that the lifting incident would have triggered the end point of that process, or might merely have made the injury symptomatic. [30] The Court is familiar with medical evidence in many cases of degenerative processes becoming symptomatic on the occurrence of a train or sprain injury, where the ongoing condition is caused wholly or substantially by a pre-existing degenerative process. Such an occurrence will attract cover only for the short term sprain or strain. But an underlying weakness will not exclude cover in the event of an accident that is a significant cause of a new injury. [31] The onset of symptoms therefore tells only part of the story. Medical opinion about what went on before the event that brought about acute symptoms is informed by expert knowledge, experience and medical literature. The Panel provided a through explanation of the process that would be expected to precede a tear of the kind shown in the ultrasound scan and related to the kind of event described by the appellant. [32] Mr Miller for the appellant submitted that the Panel opinion assumed that there were previous degenerative symptoms but, he submitted, that was conjecture based on the degenerative account that the Panel preferred. Mr Prasad could not recall previous symptoms. Ms Hansen for the respondent submitted that the GP consultation note two days after the incident was compelling evidence of previous left elbow symptoms serious enough to require treatment. [33] As to the force involved in the incident, Mr Miller submitted that Mr Tonkin and Prof Pitto took a history with a description of the way in which the appellant lifted the suitcase, whereas the Panel did not have that advantage. Ms Hansen noted that the Panel went so far as to say that it was impossible. I note that the Panel said that it was impossible for the incident to have caused the "elbow pathology" and the appellant does not argue that the whole pathology was caused by the lifting incident, only the final tear. [34] However the Panel also explained that the lifting was a controlled activity, that is to say that the appellant did not experience a sudden and unexpected force, but suffered a wrenching feeling when taking the weight of the suitcase. The sudden weight would also have been supported by other muscle groups because he was braced to lift the suitcase. It was not an unexpected force. [35] Ms Hansen noted the Panel finding that there was no sign of acuity. Mr Miller submitted that there was at least inflammation and that the tear was assessed by Mr Cleary as being 50% of the tendon consistent with a single injury. It was submitted that although tendinosis may have existed, the event was a probable significant contributor to the ongoing condition. Furthermore the acute symptoms became chronic, preventing the appellant from working as a driver. [36] The respondent also submits that epicondylitis is such a predominantly degenerative process that it is inevitably the whole or substantial cause of an eventual symptomatic tear. The Panel resists the description of a tear as it suggests a traumatic process, whereas the process of epicondylitis involves a breakdown of the tendon tissue. Ms Hansen submitted that the opinions of Mr Tonkin and Prof Pitto did not even address the question of a whole or substantial degenerative cause in order to explain why they adopted a different view. [37] Mr Miller submitted that the respondent's view ignores the possibility of a significant new tear. He emphasised that the appellant was seeking cover only for the tear, not for a degenerative state of the tendon. He submitted that there was likely to be post-traumatic degeneration imposed on pre-existing degeneration. He submitted also that the Panel opinion represented only one view and did not necessarily represent the viewpoint of the medical profession in the round. Decision [38] The question that is not directly answered by the Panel opinion is the extent to which degenerative tendinosis would have developed before the lift. In the spectrum of causation, it is possible that the tendinosis might have been in an early stage and the lift caused a new and significant tear, or the tendinosis had developed significantly and a tear was more or less inevitable because collagen linkage was lost and tendon fibres tended to separate even without trauma. [39] But in my view, the evidence in this appeal favours the view adopted by the Panel. The appellant had previous left elbow symptoms and the scan showed cortical irregularity and no signs of acuity. There is no medical comment directly disputing the Panel view that tendinosis in various forms including lateral epicondylitis is a degenerative process. The opinions favouring cover were based primarily on the acute symptoms at the time of the lift, but it seems that acute symptoms can occur with or without a new injury and do not indicate a probability of a new injury. I consider that the opinions of Mr Tonkin and Prof Pitto provided only a partial explanation and did not address the ultimate question whether the cause was wholly or substantially a degenerative tendinosis. They also relied on a history of no previous symptoms. While the Panel opinion did not give credit to a traumatic cause, it fully explained the reasons for dismissing that as unlikely. [40] The onus of proving an accident cause on the available evidence lies with the appellant in this case, because cover for a tear of the common extensor tendon had not been obtained. It is a claim for an extension of cover, even though the Corporation's decision was framed in terms of ceasing entitlements based on cover for an elbow sprain. However the whole of the evidence does not leave an inconclusive picture. I find that the appellant's ongoing condition was likely to be caused wholly or substantially by degenerative tendinosis of the common extensor tendon. [41] For those reasons, the appeal is dismissed. Judge D A Ongley District Court Judge