Kennedy v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2012] NZACC 141 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN KAREN KENNEDY (ACR 472/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 12 April 2012 APPEARANCES Ms H Williams, Counsel for Appellant. Ms A James, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 25 November 2010, whereby it declined to agree to fund elective surgery to the appellant's cervical spine on the grounds that the medical condition sought to be treated, namely a disc prolapse at the C4/5 level, was not a medical condition which had been caused in the appellant's neck injury accident suffered on 5 March 2007. [2] The background facts relevant to the issue in this appeal may be stated as follows: On 5 March 2007 the appellant, then aged 37 years, suffered injuries to her right shoulder and head on a rock in the hot-pools at Hanmer Springs. The appellant required immediate medical treatment for her injuries. 2 The appellant sought and obtained cover for a right neck sprain injury, a coccyx sprain, lower back, and head contusion - right. The appellant received treatment for the pain she was experiencing, which pain was particularly right-sided neck pain and into her right arm. In February 2008, the appellant was referred to Mr Mark McLaughlin, Musculoskeletal Pain Specialist, and he obtained an MRI scan of the appellant's back. Further reference to that MRI will be had later, but it is the case that there was a significant physical condition associated with the C5/6 disc. Consequent upon that MRI scan, Mr Mclaughlin referred the appellant to Mr J Bonkowski, Neurosurgeon, and after he had examined the appellant and noted the MRI scan, he considered that the appellant's medical condition required surgical disc replacement of C5/6. An application for the funding of such surgery was lodged with the respondent on 28 March 2008 by Mr Bonkowski, and although the respondent initially declined that request, on the basis that the condition sought to be treated was a degenerative condition, it subsequently changed that decision and agreement to the funding of such surgery was given. On 19 May 2008 Mr Bonkowski performed C5/6 cervical anthroplasty, but it is the case that not long after that surgery the appellant again began to experience pain, mainly in her right hand. Later in 2008 it is identified that the appellant's pain become more intrusive and in February 2009 Mr Bonkowski identified that the appellant's condition required revision surgery of her C5/6 disc. In March 2009 Mr Bonkowski made a further request to the respondent for funding of that revision surgery, such surgery being described as cervical disc replacement. Despite the respondent's Clinical Advisory Panel not agreeing that the surgery was required for a covered personal injury, the 3 respondent nevertheless approved that elective surgery in a decision of 26 March 2009. On 6 April 2009 Mr Bonkowski carried out that revision surgery. Despite that revision surgery, it was the case that the appellant again began to experience pain in her hand and fingers, and by mid-2010 this was causing her considerable ongoing pain. The appellant was again referred to Mr Bonkowski who lodged a further request for approval of surgery with the respondent, that surgery being for a C4/5 discectomy and C5/6 anterior cervical fusion. The respondent referred this application to Mr Brian Otto, Orthopaedic Surgeon, for his assessment and advice, and it was Mr Otto's bottom-line that the medical conditions for which surgery was sought were in fact degenerative conditions unmasked by the injury event and not caused by the injury event of 2007. It was consequent upon Mr Otto's advice that the respondent issued its decision of 25 November 2010, declining to approve the surgery sought. The appellant sought a review of that decision and for the purposes of that review hearing, Counsel for the Appellant obtained a further report from Mr Bonkowski. In a decision dated 18 July 2011, the Reviewer determined that the advice of Mr Otto was to be preferred, that being that the need for surgery did not arise as a consequence of the covered injury, and therefore the respondent's primary decision was confirmed. For the purposes of the appeal to this Court no further medical evidence has been produced from that which was presented at the review hearing. [3] Although the appellant initially consulted her GP about her injuries, it is the case that he gave little by way of treatment and in fact referred her on to a physiotherapist. According to the appellant's evidence given at the review hearing, she continued to receive treatment from the physiotherapist for about a year, but the treatment that she received was not achieving anything and she was continuing to experience significant pain. [4] It was not until February 2008 that the appellant was referred on to Dr McLaughlin, Musculoskeletal Pain Specialist, and after his examination of her he stated as follows: There is reduced sensation to light touch over the thumb and index finger. Reflexes and power of the upper limbs was unremarkable and symmetrical. There is loss of rotation of the cervical spine, loss of flexion and in extension and rotation there is a sharp shooting pain, extending down the right arm into the hand, i.e. a positive cervical compression test. Karen has a clinical presentation consistent with a right C6 nerve entrapment. The pains in the interscapular area may also be referred from the lower facet joints, as is the anterior chest pain. [5] Dr McLaughlin arranged for an MRI scan of the appellant's neck and this scan was done on 1 March 2008. The scan was stated as being an MRI scan of her neck and the findings of the scan relating to her cervical discs was noted as follows: C4/5 Small mid line disc protrusion with mild indentation of the ventral aspect of the thecal sac. C5/6 Broad disc osteophyte complex in the mid line and extending to the right in the foramen. This is resulting in mild central canal stenosis with slight flattening of the spinal cord and marked right foraminal stenosis with likely compromise of the right C6 nerve root. C6/7 No significant abnormality. C7/T1 No significant abnormality. There is a slight kyphosis centre at C6/7. Mild bone marrow signal changes around the C5/6 disc space. There are mild type 1- bone marrow signal changes around the endplates of C5/6. No other bone marrow signal abnormality. The spinal cord is of normal signal. Conclusion: Disc osteophyte complex at C5/6 extending to the right with foraminal narrowing and central canal stenosis. [6] Dr Mclaughlin thereupon referred the appellant to Mr Bonkowski for consideration of surgical treatment. In his report back to Dr Mclaughlin on 28 March 2008, Mr Bonkowski identified the large central and right-sided prolapse of the C5/6 disc and which was causing considerable narrowing of the right C6 nerve root. He then commented as follows: 5 Given her age and the fact that she already has some mild adjacent segment changes at C4/5 the most definitive mechanism for dealing with her pain would be to remove the disc and implant an artificial disc. Application is therefore being made to the ACC to cover the cost of a C5/6 disc replacement. [7] As earlier noted, Mr Bonkowski carried out the surgery, after same had been approved by the respondent, on 19 May 2008. That surgery he described as being "an uncomplicated C5/6 discectomy with cervical arthroplasty". [8] It is the case that Mr Bonkowski sought and obtained another MRI scan of the appellant's cervical spine three days after that surgery. Of relevance to the present issue is the comment made in that MRI scan that the C4/5 and C6/7 discs were normal. The conclusion stated by the radiologist was as follows: Mild subluxation of the right C5/6 facet joint with an apparent increase in the bony narrowing of the right neural foramen by posterolateral osteophytes. No other evidence of neural compromise demonstrated and in particular, no evidence to suggest C7 nerve root compromise. [9] As earlier noted, the appellant initially experience little ongoing pain following that surgery and a report from Mr Bonkowski to that effect was provided to the appellant's GP. [10] In December 2008 the appellant was again seen by Mr Bonkowski and his comment on her then present condition was as follows: However since then she feels that the symptoms have become far more intrusive, she s complaining of quite a lot of discomfort going into the hand, with dysaesthetic hypersensitive feelings, particularly in the middle fingers of the hand. She appears to be far more dissatisfied with the result than she was some months ago. [11] Mr Bonkowski said that he would consider the appellant's situation again early in the New Year. [12] Mr Bonkowski again saw the appellant on 18 February 2009 and he commented on her then condition as follows: Since she was last seen in early December there has been little change in her overall condition: she continues to have quite a lot of local neck pain and in addition to this continues to have problems with the right arm, with dysaesthetic sensations, suggesting some continuing C6 nerve root irritation. 6 I have suggested to Karen that the only thing that I could offer her would be the procedure I discussed with her back in December: it is difficult to say whether there is still something compressing the nerve, there may be a tiny piece of residual disc materal or bone dust irritating the nerve, or alternatively the arthroplasty itself may be causing some mild nerve irritation, as it is somewhat to the right of the midline and could be conceivably causing some form of irritative process. Ultimately the only way that I can resolve the issue surgically would be to re-explore her neck, carry out a right sided C5/6 anterior foraminotomy and potentially either replace or reposition the disc into a rather more left sided location to see if this will get rid of at least her arm pain. ... Application is therefore being made to ACC to re-explore the cervical arthroplasty, carry out an anterior foraminotomy and potentially reposition or replace the disc. ... [13] Although the respondent's Clinical Advisory Panel did not consider that the surgery was to treat a covered injury situation, the respondent agreed to fund the surgery and Mr Bonkowski carried out the surgery on 6 April 2009. That surgery was described as being "revision C5/6 cervical arthroplasty and right C6 anterior foraminotomy". [14] In his report on the surgical procedure he carried out, Mr Bonkowsi stated, inter alia, as follows: Caspar pins were driven in the C5 and C6 vertebrae and by a combination of distraction and chiselling the disc was removed in two places. There was new bone formation on the left side, nearly bridging the front of the disc space, although there was still some slight residual movement left. On the right side there was no obvious re-prolapse but the nerve root appeared to be somewhat indented posteriorly and partially compressed by the residual uncinate process of C6. A fairly radical anterior foraminotomy was therefore carried out on this side and all bone removed until the nerve could be displayed running well laterally underneath the vertebral artery. I elected to reimplant a new disc and utilised a small 7 mm Discover: this was impacted into position without any countersinking. [15] It was Mr Bonkowski's report to the appellant's GP that post-operatively the appellant experienced almost immediate alleviation of her right arm discomfort, and in the follow-up comment he stated that her wound was healing well and her arm pain was under good control. [16] The situation subsequent to that surgery was that at some point early in 2010, the appellant again began to experience neck pain and bilateral arm pains and tingling in 7 her fingers. For this reason her GP again referred her to Mr Bonkowski in August 2010, and he arranged for an up-to-date MRI scan. [17] A further MRI scan of the appellant's cervical spine was carried out on 24 August 2010, and the relevant findings were stated as follows: C4-C5: Large midline disc protrusion which is indenting the spinal cord and causing moderate spinal stenosis. This has increased significantly since the previous examination. C5-C6: Artefact from the disc replacement at this level obscures images somewhat. However on the axial T2 images, the calibre of the spinal canal appears slightly improved from the previous examination. Mild left foraminal narrowing. C6-C7: Small midline disc protrusion, this has appeared since the previous examination and is really only visible on the sagittal images. There is no neural compromise. Conclusion: Appearance of a large midline disc protrusion at C4-C5 since the previous examination. This is compressing the spinal cord. [18] Consequent upon that MRI scan, Mr Bonkowski reported to the appellant's GP on 1 September 2010, and he commented inter alia as follows: The MRI findings are quite surprising and slightly alarming: she has a very large central disc prolapsed at the C4/5 level which is causing a significant indent into the spinal canal and the spinal cord. There is some mild persistent narrowing at the C5/6 level but because of the artefact created by the implant an accurate assessment cannot be made Despite the fact that the arthroplasty was carried out specifically to try and protect against adjacent segment failure she appears to have had a fairly precipitous and massive failure of the C4/5 disc. The only way that this could be dealt with would be to remove the C4/5 disc and to fuse that level across. Since the arthroplasty is obviously not carrying out its intended duty she would best be served by having the arthroplasty removed and replaced with a fusion across that level as well. The underlying process is primarily injury related, relates back to the initial injury in 2007 when she slipped whilst in Hanmer, striking her head on a rock and sustained a hyper-extension injury with rupture of the C5/6 disc. The working presumption is that the C4/5 disc must have suffered some internal stressing as well, was not frankly ruptured at the time of the initial assessment and surgery but has subsequently failed precipitously and I suspect the C5/6 has stiffened with an ineffectual arthroplasty. [19] Again, Mr Bonkowski sought approval for the proposed surgery, and it was the recommendation of the respondent's Clinical Advisory Panel that the opinion of Mr Brian Otto, Orthopaedic Surgeon, be obtained. 8 [20] Mr Otto had all the clinical records relevant to the appellant's medical conditions post March 2007, and in his report he noted that the MRI scan of August 2010 showed an increase in the size of the posterior protrusion of C4/5. He then commented further as follows: The explanation for the progression of the C4-5 disc pathology is contained in the second operative procedure carried out on the 6th April 2009 at the St. George's Hospital, when it was found that there was abundant new bone formation, almost bridging the front of the artificial disc space, which would have had the effect contrary to what was planned of stiffening the artificial disc segment, and loading the disc proximal to it. The disc at the C5-6 space was replaced. The current clinical situation therefore is that the pathology at the C4-5 level that was noted at the outset and which was being protected by the disc replacement, has progressed and is now likely to be the major cause of her neck stiffness, shoulder pain and arm symptoms. The original reason for the disc replacement is now negated and the surgical request for disc excision, and fusion at the C4-5 level with removal of the disc replacement at C5-6 and fusion of those both levels given the relative integrity of the adjacent disc above and below those two levels in the spine, is an entirely appropriate procedure. The concepts of the surgical management has been entirely appropriate, the issue is whether or not the changes can be said to be wholly or substantially due to personal injury by accident, and on the balance of probabilities, it is likely that the injury event only served to unmask pre existing changes and accelerate them to produce the C6 root pain into the right arm, and that the primary pathology that was being treated was degeneration established and most marked the C5-6 level, but also progressing at the C4-5 level as well. [21] As earlier noted, it was on the basis of Mr Otto's advice that the respondent issued its decision to decline to fund the proposed surgery. 22] The final medical comment is from Mr Bonkowski who was asked by Counsel for the Appellant to comment on Mr Otto's opinion. It was Mr Bonkowski's opinion that he did not think there was evidence of long-standing or extensive spondylitis or degenerative changes shown in the first MRI scan, and he considered that the damage to the C5/6 disc could be explained on the basis of trauma from the injury event. Insofar as the C4/5 disc was concerned, he stated as follows: The state of health of the C4/5 disc on the initial MRI was that the disc was pretty close to normal: it was possibly very slightly narrowed, there is a most subtle of signal changes within the disc but I would have called it normal with a marginal hint of early change. I think that Dr Otto is correct in his conclusion that despite my attempt to maintain a motion segment at C5/6 the C4/5 disc became so stressed that it eventually failed in a precipitous fashion after two operations on the spine, resulting in an acute cervical myelopathy required a third operative procedure. 9 23] In her submissions on behalf of the appellant, Ms Williams contended that the assessments and opinion of Mr Bonkowski should be preferred, he being the treating specialist, and he being of the opinion that the medical conditions identified in C4/5 and C5/6 were not those of pre-existing degenerative conditions, but rather were conditions which had been suffered in the injury event of 2007. [24] Ms James, Counsel for the Respondent, submitted that there was no evidence of any causative link between the medical condition associated with C4/5 and the injury event of March 2007, and she referred to the fact that the appellant had undergone two operations on C5/6 and there was no mention of any problems associated with C4/5, and it was only since the second to last MRI scan that the medical condition of C4/5 has arisen. Counsel also referred to the fact that in an early comment from Mr Bonkowski in March 2008 he recognised the fact of a degenerative condition at C4/5 and that he again stated the situation to that effect in his final report of May 2011. DECISION [25] The decision in issue in this appeal relates to a request by Mr Bonkowski on behalf of the appellant to carry out further surgery on the appellant's cervical spine, and it is of course the fact that such surgery was to be the third occasion of surgery on the appellant's cervical spine. [26] It is the case, as a matter of law, that the onus is on the appellant to establish a causative link between the covered personal injury and the need for surgery, that is, the surgical procedure is to treat a medical condition associated with the covered personal injury. [27] In the case of this appellant the injury event occurred in March 2007, and whilst it involved significant injury to her head and neck, it seems that no actual diagnosis of what may have been suffered in that injury event was carried out, and it was not until some twelve months later that an MRI scan of the appellant's neck identified what was then her medical condition. (28] It is clear from that MRI scan that the principal problem for the appellant was associated with C5/6, and that was indeed identified by Mr Bonkowski when he sought approval for surgery to treat that condition, and did so carry out such treatment. 10 [29] It is the case that at the time that that surgical treatment was sought and carried out, there was no suggestion of any problem associated with C4/5, and this continued to be the case up to and after the second treatment surgery carried out by Mr Bonkowski in April 2009. [30] Indeed, it is the case that it was not until the MRI scan of August 2010 that it was identified that the appellant's C4/5 now had a large disc protrusion, and it was commented on that this state of affairs had increased significantly since the previous MRI scan. [31] As was noted by Mr Bonkowski, he found the MRI scan findings surprising and alarming, and he acknowledged that the appellant had had a massive failure of the C4/5 disc. [32] Whilst it is Mr Bonkowski's opinion that the C4/5 disc must have suffered some internal stressing at the time of the accident, it had not ruptured at the time of the initial assessment. [33] Mr Bonkowski's assessment is to be contrasted with that of Mr Otto, whose opinion was that the clinical situation at C4/5 was simply a progression of a degenerative pathology, and the condition identified in the latest MRI scan was not one which had occurred as part of a personal injury by accident. [34] In his final report, Mr Bonkowski acknowledges that the C4/5 disc, as shown in the initial MRI scan, was pretty close to normal, and I find it to be the case that it is a situation where the subsequent development of the major disc prolapse cannot be attributed to the injury event, as the clear evidence from the MRI scans earlier obtained, and indeed the surgical procedures carried out, do not identify any problems with that cervical disc subsequent to the injury event. [35] Having regard to all the evidence, and particularly the evidence surrounding the first two surgical procedures and what they disclosed, I find it to be the case that the appellant cannot establish, on the balance of probabilities, that the medical condition for which the third surgery was sought, was to treat a medical condition causatively linked to her covered injuries. 11 [36] For the foregoing reasons, therefore, I find that the respondent's decision to decline to fund such surgery, was the correct decision in the circumstances. This appeal is therefore dismissed. DATED this < 7day of April 2012 M J Beattie District Court Judge