MB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 172 /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 MB Appellant (Appeal No. DCA 112/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at PALMERSTON NORTH on the 16th day of July 1998 APPEARANCES A R V Rowlett - advocate for appellant S Rowan for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON There will be an order that the appellant's name shall not be published nor any information which would lead to her identity. The issue in this appeal is whether the respondent was entitled to cancel the appellant's compensation under s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 on the grounds that her ongoing incapacity is due to a pre-existing osteoarthritis condition and not to injuries suffered to her left foot in 1989 and 1990. 2 The background to the appeal is that the appellant suffered injuries to her left foot on 17 November 1989 and 12 January 1990. The appellant lodged a claim with the respondent for cover under the Accident Compensation Act 1982. The appellant's general practitioner, Dr Harvey, arranged for her to be examined by Mr P C Grayson, an orthopaedic surgeon, whose report of 21 August 1990 states: "She is a genuine type of person who has undoubtedly had quite severe pain in her left foot. She tells me the original injury was in November last year when she was coming down a track on Kapiti Island and went over on the ankle but this seemed to settle but the second incident in January this year when she was going up the track on Mt Maunganui was more traumatic and pain from it has persisted since. X-rays show that she has deformity of the talus which has either been on the basis of past trauma or Kohler's disease (osteochondritis of the scaphoid). She now has well established AO changes in the talo-scaphoid joint and these have been aggravated by her trauma. Unfortunately with her type of build and weight the left foot is markedly 'loaded', when she is weightbearing, and it is going to be important in the longterm that she keeps stress to this foot to a minimum otherwise her symptoms can only get worse. She has promised to try and do something about getting her weight down, I am arranging for her to have Spenco valgus insoles for her shoes and she is to undertake swimming both to keep her foot mobile and to keep her weight down. I have told her to keep in touch with you as to her progress - operation in these cases is not always successful as it has to take the form of a fusion of the talo-scaphoid joint." Or Harvey submitted Mr Grayson's report, together with the comment that the appellant had been seen by her then general practitioner whose notes diagnosed "a strain of the left extensor retinaculum of her foot was made and this would have a prognosis of slowly resolving over the next month". After considering Mr Grayson's report, the respondent notified the appellant that her claim for cover was declined because she had only aggravated a pre-existing condition and that the problem she then suffered was not the result of personal injury by accident. On 18 January 1991 the appellant applied for a review of the respondent's decision and in support submitted a report from Mr R O Lander, an orthopaedic surgeon, dated 3 January 1991 in which he stated: "X-rays of the foot taken at Mercy Radiology in July this year show extensive degenerative changes in the mid tarsal joints, especially the talo navicular joint. Clinical examination on 27 December 1990 revealed some swelling around the left mid foot, and [MB] walked with a limp. There was marked stiffness in the mid tarsal and subtalar joints, but the ankle movements are normal. There were no neurovascular problems of note. 3 I discussed the various options with [MB], and it was felt best that initially she should be fitted with an ankle/foot orthosis and if this fails to control her symptoms, then we may need to consider a mid tarsal or triple fusion of the involved joints in the left foot. Arrangements have been made to follow her again in the Amesbury Orthopaedic Centre in 3 months. I feel that [MB's} symptoms stem from her injury in November 1989, and she tells me that she was completely asymptomatic before this. I think it would be reasonable to consider re-examining her claim with the Accident Compensation Corporation." On 7 February 1991 the respondent notified the appellant that it had re-examined its earlier decision and had agreed to accept her claim for cover under the Act. The respondent then referred the appellant to Mr A R Cockerell, an orthopaedic surgeon, for the purpose of obtaining a report to assist with awards of lump sum compensation under ss.78 and 79 of the 1982 Act. In a report dated 30 June 1993 Mr Cockerell found: "On examination, [MB] walks without a limp. Left foot: There is slight swelling in the mid tarsal region. Ankle movements are full and painless. There is marked restriction of inversion and eversion movements of the foot and pain if these movements are forced. There is tenderness over the mid tarsal region especially the talo navicular joint. X-rays of the left foot taken on 8.7.90 showed a deformity of the head of the talus with marked osteo arthritic changes in the talo navicular joint. Similar changes were shown in x-rays repeated on 28.1.92. COMMENT [MB's] disability is attributable to osteo arthritis affecting one of the mid tarsal joints (the talo navicular) in her left foot. [MB] first experienced pain in her foot when it gave way walking on 17.11.89. This was obviously not a severe injury as she was able to continue walking and did not require any treatment at the time. Pain eased with physiotherapy treatment but was aggravated walking up Mount Manganui two months later. On this occasion there was no further injury. The osteo arthritis of the tarso metatarsal joints shown in x-rays taken 8 months after the injury are of long standing and I consider would have been developing over a period of several years. I accept that [MB] may not have experienced significant pain prior to November 1989 as osteo arthritic changes in a joint have to reach a certain stage before pain occurs. Pain may then be precipitated by a minor injury and from then on there is persistent pain and often increasing disability from the natural progress of the osteo arthritic changes. At most, the injury of 17.11.89 may have caused an aggravation of the osteo arthritis, but this would have been a temporary aggravation. There was no further injury when pain became worse tramping in January 1990. 4 The only further treatment [MB] could be offered would be a fusion of the talo navicular joint but the result of such an operation would be uncertain. I would assess present disability from [MB's] foot as a permanent total disability of 15 percent. It would probably be reasonable to accept some aggravation from the injury of 17.11.89 and I would assess this as 30 percent, or a permanent total disability of 4.5 percent." On 9 September 1993, the respondent made the appellant an award of $2,000 under s.79 of the 1982 Act. It made no award under s.78 because the medical evidence indicated that while some degree of permanent impairment had been suffered in the 1989 injury it was insufficient to warrant an award. On 11 November 1997 the respondent then advised the appellant that after reconsideration of her position it had concluded pursuant so s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 that further entitlements would cease from 10 January 1998. The appellant applied for a review of that decision. The appellant was represented by Mr Rowlett at the review hearing at which he submitted that the "eggshell skull principle" applied and that the facts of the appellant's case were similar to those in the case of the appellant in Van der Torre (98/95). However, the review officer distinguished that case on the basis that this appellant had well established osteoarthritis changes prior to November 1989 when she said that nothing specific had happened at that time, but found on completion of her walk there was immediate pain which has continued. The review officer noted that the original diagnosis was a sprain while in Van der Torre that appellant had suffered a fall which resulted in a disc prolapse. The review officer concluded that the ongoing symptoms suffered by this appellant which commenced in November 1989 were due to the pre-existing osteo arthritic condition and not to a specific accident. The application for review was therefore declined. It is against that decision which the appellant now appeals. In support of the appeal Mr Rowlett has adduced additional evidence from Mr R Lander, an orthopaedic surgeon which has been accepted by the Court. In a report of 30 April 1998 to Dr Harvey, Mr Lander stated: "[MB] was seen at the Amesbury Orthopaedic Centre today to discuss her claim with ACC regarding her left foot injury. It seems that ACC in their crackdown of longstanding compensation claims have decided that [MB's] degenerative changes in the talo-navicular joint are due to a pre-existing condition and not her injury of 1989. Unfortunately, at the time of the accident in November 1989, no x-rays were taken and therefore it makes it difficult to lodge an argument stating that the degenerative changes relate to the accident solely. The only evidence that we have that no problem existed pre-injury is [MB's] testimony that she had no complaints with the foot and that there was no problem with the foot in childhood. It is possible to have a bipartite tarsal navicular bone which can give rise to degenerative changes and I am sure that ACC would argue that this was the case. The first x-ray 5 that was taken after the injury was in the middle of 1990 and this showed radiological changes consistent with either a bipartite tarsal navicular bone or an old injury with remodelling." In a further letter to Mr Rowlett of 20 June 1998 Mr Lander stated: "Further to your letter of the 15th June 1998, I have reviewed my medical records at the Amesbury Orthopaedic Centre and the medical report on [MB] by Mr Cockerell on the 30th June 1993. My understanding of the situation is that [MB] had no trouble with her left foot until she suffered an injury when her foot gave way walking down a path on Kapiti Island on the 17th November 1989. On reviewing the medical records at the Amesbury Orthopaedic Centre, I note that she was seen by Mr Peter Grayson in August of 1990 at the request of her General Practitioner for an assessment of the foot injury. Mr Peter Grayson made the comment that 'x-rays show that she has deformity of the talus which has either been on the basis of past trauma or Kohler's Disease (osteochondritis of the scaphoid). She now has well established OA changes in the talo-scaphoid join and these have been aggravated by her trauma'. These x-rays unfortunately are not available for review. I am not aware of any x-rays having been taken prior to the accident in November 1989. I am of the opinion that the accident in November 1989 did cause some damage to the foot in the presence of a pre-existing condition. I consider that those injuries would have been of a temporary nature if there had not been a pre-existing condition in the foot. I agree with Mr Cockerell's comments in his report of 30 June 1993 in which he states that the osteoarthritis of the tarso metatarsal joints shown in the x-rays taken eight months after the injuries are of longstanding and he considered that they had been developing over a period of several years. I also agree with his assessment that 'it would probably be reasonable to accept some aggravation from the injury of 17.11.89 and I would assess this as 30%, or a permanent total disability of 4.5 percent'. On the balance of probabilities it is likely that [MB's] foot would have deteriorated with time even in the absence of a superimposed injury." Mr Rowlett submitted: 1. That while s.73(1) permits the respondent to cancel entitlements if the information then in its possession does not satisfy it that the appellant is entitled to continue to receive compensation. That in this case the respondent had made the decision originally to accept a claim for cover and had paid the appellant permanent disability awards under the 1982 Act in respect of accident which she had suffered. That accordingly the review officer's decision declining the application for review is contrary to the previous decisions of the respondent. 6 2. That the original acceptance of the claim was based on the fact that the appellant's accident had aggravated her pre-existing condition and accelerated its progress. 3. That as the appellant was accepted for cover under the 1982 Act, the transitional provisions of s.135 then require that the medical evidence should indicate that on the balance of probabilities that either the appellant did not suffer personal injury by accident within the meaning of the 1982 Act or that personal injury has completely resolved and the appellant's condition is no worse than it would have been had she not suffered a personal injury. 4. That the decisions of the Court in Bell (105/97) and Wicks (48/98) relied upon by the respondent are not relevant to this appeal because each of those appellants had suffered personal injury which was covered by the 1992 Act. Ms Rowan submitted: 1. That the appellant can only be entitled to continued cover if it can be established on the balance of probabilities that her ongoing incapacity within the meaning of s.37A is a consequence of the injury sustained to her left foot in 1989 and 1990 and not caused wholly or substantially by a pre-existing degenerative condition. 2. That the medical reports from three specialists satisfied the review officer that the appellant's ongoing incapacity was due to her re-existing osteoarthritis condition. That Mr Lander whose subsequent report has been received agreed with Mr Cockerell's comments that the osteoarthritis condition shown in the x- rays taken 8 months after injuries were sustained were longstanding and had been developing over a period of several years. She submitted that it was noteworthy that Mr Lander concluded his report by saying "on the balance of probabilities it is likely that [MB's] foot would have deteriorated with time even in the absence of a superimposed injury". 3 . That the factual situation in this appeal is similar to that in the appeal by Bell (105/97) in which that appellant who had had no difficulties prior to suffering a fall was then found to have significant arthritis in her right hip. Her resulting problems were found to be the result of the pre-existing condition rather than as a result of the fall which brought them to light. 4. That the "eggshell skull principle" has no application in respect of this appellant because she had an existing degenerative condition prior to her accidents in 1989 and 1990 which did not change or create that condition, but merely accelerated the experience of symptoms. The issue falls to be determined under s.73 of the Act which provides that if the respondent is not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related 7 transport, compensation, grant or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation. Pursuant to s.10 personal injury caused wholly or substantially by gradual process, disease or infection is not covered by the Act with certain exceptions which are not applicable to this appellant. Subsection (2) of that section then states: "For the avoidance of doubt it is hereby declared 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." (Emphasis mine) Section 37A provides that the object of a determination of incapacity is to determine whether or not a person is by reason of his or her personal injury for the time being unable to engage in employment in which the person was engaged when the personal injury occurred. It is therefore necessary for the appellant if she is to succeed in this appeal to establish on the balance of probabilities that her ongoing condition is the result of the injuries sustained to her foot in 1989 and 1990 and is not caused wholly or substantially by a pre-existing degenerative condition. While Mr Rowlett has submitted that because the respondent originally accepted the claim under the 1982 Act and made a lump sum award it should therefore be recognised that that position cannot now be changed. The issue of estoppel is not applicable. I do not accept Mr Rowlett's submission that because the claim was originally accepted under the 1982 Act s.135 of the 1992 Act requires that any further consideration of the appellant's entitlement must be considered under the 1982 Act. Section 135(1) clearly identifies that as this appellant has had a claim for cover accepted for personal injury by accident within the meaning of the Accident Compensation Act 1982 suffered before 1 July 1992 "[The appellant] shall be deemed to have suffered personal injury that is covered by this Act". It then follows that any subsequent consideration of her continued entitlement falls to be considered under the provisions of the 1992 Act. All the medical evidence, including that of the subsequent reports from Mr Lander clearly indicate that the substantial cause of the appellant's current condition is her pre-existing degenerative condition. It is quite clear that while she did suffer some minor injury to her foot in 1989 and 1990 she was at that time suffering extensive degenerative condition which were disclosed by the x-rays and reported on thereafter by the specialists. 8 I consider that the decision of the respondent as confirmed by the review officer was correct and the appeal is dismissed. DATED at WELLINGTON this 313 day of July 1998 A W Middleton District Court Judge deal1298.doc(rd)