Bunting v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON - - - Decision No. 256 /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 LORRAINE JOY BUNTING of Dunedin Appellant (Appeal No. DCA 122/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at DUNEDIN on the 3rd day of November 1998 APPEARANCES D Robinson for appellant J D Palmer for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to private hospital expenses for knee replacement surgery. The background to the appeal is that the appellant suffered an injury to her right knee in a fall on 26 August 1990 when she tripped over a mat. The appellant did not 2 lodge a claim with the respondent in respect of that incident. On 2 December 1992 the appellant-consulted her General Practitioner after a fall down the stairs on 25 November 1995 for which she lodged a claim for cover with the respondent, which claim was accepted. In March 1995 the appellant suffered a further injury to her right knee when she fell in the garden. In June 1995 the appellant consulted Mr J A Matheson, an Orthopaedic Surgeon. In a report to the respondent on 18 August 1997 Mr Matheson noted: "Radiographs of the right knee show severe degenerative arthritis affecting the joint especially in the medial compartment where there is complete obliteration of the joint space and early cyst formation. There is some mild degenerative changes in the medial compartment of the left knee." The appellant then lodged an application with the respondent for the cost of a total knee replacement on the grounds that it was required as a result of the 1995 accident. On 24 October 1997 the respondent declined the appellant's request for surgery on the grounds that the surgery was required substantially because of degeneration rather than the 1995 accident. The appellant applied for a review of that decision. The Review Officer had available to her a report from the appellant's General Practitioner, Dr A Worsnop, which recorded the series of accidents prior to and up to the March 1995 accident. Dr Worsnop concluded her report by stating: "Mrs Bunting's history is of degenerative disease in her (R) knee, especially, which has constantly given her pain and immobility over the last two years, but was not mentioned until the first injury of 26/7/90. Therefore, as she contends, injury in the first place was the cause of the degeneration." As the respondent's medical advisor raised doubts as to whether the surgery was required because of degeneration or the fall of March 1995, Mr Matheson was asked for his further opinion which he provided on 4 October 1998 when he said: " I have been asked to clarify the relationship between an accident on 22.3.95 and the need for surgery for degenerative arthritis in the right knee. My notes indicate that Mrs Bunting had a significant fall onto the right knee in March 1995. She tripped over when walking her dog and landed directly onto the front of her right knee. At my assessment on 17.6.95 I noted that Mrs Bunting had radiological evidence of significant degenerative change in both knees. At the right knee there was complete obliteration of the medial compartment and changes in the patello femoral compartment. Opinion: There is no doubt that Mrs Bunting had degenerative changes in her right knee prior to the fall on 22.3.95. Perhaps she had had some discomfort in both knees for a few years prior to her injury. It is likely that the fall exacerbated an underlying degenerative process. Therefore the degenerative change, although it was only 3 mildly symptomatic, preceded the accident which therefore caused her symptoms to increase.- There has been a rapid deterioration in the degeneration since the injury and the injury has therefore had a significant exacerbating effect." It is interesting to note that on 15 October 1997 Mr Matheson wrote to the appellant in relation to the respondent's pending decision and stated: "The difficulty with your case is that you basically have a degenerative arthritis and although you had an accident the degenerative changes pre-dated the injury as confirmed by xray. There is no doubt however that the accident exacerbated the degenerative change." The Review Officer accepted that the appellant had suffered a series of accidents which contributed to the degenerative change but concluded that the opinion of Mr Matheson was clearly that the basic problem was degenerative arthritis which preceded the accident in 1995. It is against that decision which the appellant now appeals. Mr Robinson submitted that the eggshell skull principle applies in that the appellant's physical condition was such that she was rendered especially susceptible to this type of injury because of her previous accident. He noted Mr Matheson's statement of 4 October 1997 that "there has been a rapid deterioration in the degeneration since the injury and the injury has therefore had a significant exacerbating effect." Mr Robinson submitted further that the facts in this case are similar to the facts in Kidd v ARCIC (269/97). He submitted that in that case there was a history of pre- existing degenerative change which was aggravated by the personal injury. Judge Beattie concluded that it was more probable that the appellant's condition was exacerbated by the injury and that the eggshell skull principle applied. Mr Palmer submitted that the medical evidence indicated that there was significant degeneration prior to the 1995 accident and that therefore it could not be established from the medical evidence that the surgery was required as a direct result of the 1995 accident. Mr Palmer submitted that to be entitled to cover for the knee surgery the appellant must establish on the balance of probabilities that there is a direct causal link between her 1995 accident and the injury requiring surgery. He submitted further that the appellant must establish that aging and/ or degeneration are not wholly or substantially the cause of that injury. An issue such as this must be determined on the medical evidence. I am satisfied from the report of Dr Worsnop and the series of reports from Mr Matheson that at the time the appellant suffered the accident in 1995 she was already suffering quite extensive degeneration in both knees and that this was exacerbated by the 1995 accident. However, I do not consider that the accident was the direct cause of the requirement for surgery. While there had been a series of accidents prior to the 1995 accident, the appellant's knee was already seriously compromised by the time she had the 1995 accident. It follows therefore that on the basis of the medical evidence it was degeneration which was substantially the cause of her then problems. 4 Accordingly, the decision of the Review Officer should not be disturbed. The appeal is dismissed. -..- DATED at WELLINGTON this 4 th day of December 1998 A W Middleton District Court Judge dca122-98.doc (nr)