Hodgkiss v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. [2010] NZACC 125 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN MICHELLE HODGKISS (ACR 164/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 15 June 2010 APPEARANCES Mr J Miller, Counsel for Appellant. Mr J Parry, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 December 2008, whereby it declined to approve payment for elective surgery to the appellant's left shoulder, the appellant having contended that such surgery was required as a consequence of her covered shoulder strain injury suffered on 18 November 2004. [2] The reasoning given by the respondent in its decision letter was that it considered that the surgery was required to address a pre-existing gradual process condition which had been rendered symptomatic by that November 2004 accident. [3] It is worthy of note that when the Reviewer, Mr R Woodhouse, issued his review decision on 15 March 2010, it was his assessment that the tendon tear for which the surgery was required was a condition which had arisen subsequent to the date of that shoulder strain injury and that the tear had not been caused in the injury event of November 2004. 2 [4] It should also be noted that in addition to the appellant appealing to this Court against the review decision which confirmed the respondent's primary decision, the appellant is also appealing the associated decision made by the Reviewer whereby he declined to award costs to the appellant at that review, he stating that the application for review was not reasonably brought. [5] The background facts relevant to the issue in this appeal may be stated as follows: . On 18 November 2004 the appellant, then aged 40 years, experienced a ripping sensation in her left shoulder whilst she was using a heavy Kanga hammer to break up some concrete. . The appellant's evidence was that she felt a burning and ripping sensation in her shoulder and arm and that she has experienced shoulder pain since the time of that accident. . The appellant did not consult her GP, Dr Cherry, until 29 April 2005. It was on that date that Dr Cherry lodged a claim for cover. The ACC 45 Claim Form lodged stated: "Jarred left shoulder breaking concrete, Kanga hammer: Diagnosis, rotator cuff sprain left." . Cover was granted to the appellant for that personal injury. . On 5 May 2005, a radiology report giving details of X-ray and ultrasound of left shoulder were provided to Dr Cherry. The appellant sought no further medical assistance for her condition, nor did she seek any entitlements from the respondent at that time. . The appellant did not consult her GP again in relation to her left shoulder condition until 4 July 2008. . Dr Cherry's notes of that attendance state as follows: "Struggling with L shoulder has sprain with ext rotation and abduction has a burning sensation at upper arm; had a scan 2005 was normal; had temporary relief from steroid injection; tender areas I suprsintous injected with kenacort and xylocaine." . In a further note dated 29 August 2008, Dr Cherry noted "gets pain I shoulder and upper arm when she has arm extended and under pressure; pain is intermittent becomes more long term with driving." 3 . Dr Cherry thereupon referred the appellant to Mr lan Denholm, Orthopaedic Surgeon, for assessment. . Mr Denholm obtained an ultrasound report dated 16 September 2008 for the purposes of his assessment and report. . In an Assessment Report dated 24 September 2008, Mr Denholm recommended non-surgical treatment by cortisone injection. He indicated that her situation would be reviewed in six weeks time. . On 17 November 2008, Mr Denholm obtained an MRI Scan of the appellant's left shoulder. . On 4 December 2008 Mr Denholm made application for approval for surgery for "single tendon repair rotator cuff - left shoulder". His diagnosis of the medical condition requiring that surgery was "tear supraspinatous left shoulder" . Mr Denholm's request was considered by the respondent's Clinical Advisory Panel, and its assessment of the evidence was that "it is likely that Michelle is suffering from a gradual process condition of her left shoulder rotator cuff." . Consequent upon that advice from the respondent's CAP, the respondent issued its decision of 22 December declining to approve payment of the proposed surgery. . The appellant sought a review of that decision and for the purposes of that review a full medical report was obtained from Mr Denholm dated 20 July 2009. . A review hearing took place on 25 February 2010 at which that report from Mr Denholm was introduced. The appellant gave evidence at that hearing at which she was represented by counsel. . In his decision dated 15 March 2010, the Reviewer, Mr R Woodhouse, concluded that it was more likely than not that the tendon tear developed between the May 2005 ultrasound examination and the subsequent ultrasound scan performed in September 2008. He therefore concluded "that the evidence fell short of supporting a continuing causal link between the need for surgery and the accident event of 2004." . In addition to that decision on the substantive issue, the Reviewer made the following decision relating to the issue of costs. I decline to award costs in this case, as I am satisfied that the application was not reasonably brought. As I have indicated above, there is strong evidence from the ultrasound scan in 2005 which does not support a tendon injury at that time. Furthermore an x-ray at that same time, also appears to support a degenerative process present. That evidence appears to have been ignored by Mr Denholm and the applicant . No further medical evidence has been introduced for the purposes of the appeal to this Court. [6] In addition to the medical notes from the appellant's GP, set out above, the medical evidence consists of x-ray and ultrasound reports, the MRI scan and the three reports from Mr Denholm, details of which are as follows: 1. X-ray and ultrasound report of left shoulder dated 5 May 2005 1 . X-ray left shoulder Normal alignment. Acromiohumeral distance maintained. No rotator cuff calcification. Slight roughening of the undersurface of the acromion. The proximal humerus and glenoid margin appear normal. 2. Ultrasound left shoulder The tendons of the rotator cuff are normal in thickness and echotexture, there is no evidence of tendinosis or tear. No joint effusion and no distension of the subacromial bursa. Conclusion No abnormality detected. 2. Letter of referral from Dr Cherry to Mr Denholm dated 2 September 2008. I would be grateful if you could see Michelle who injured her left shoulder in 2004 when she was using a kanga hammer. At that time x-rays and ultrasound scan were reported as normal. She has generally been okay since that time but more recently has been getting increasing pain in and around the left shoulder and upper arm. The pain is worse when she is driving particularly if her arm is extended On examination there is pain and reduction of abduction particularly against pressure. External rotation and elevation are all normal. . She did have very temporary mprovement with a steroid injection and I wondered whether she may have a rotator cuff tear and have organised a repeat ultrasound scan and would appreciate your assessment and advice. 5 3. Ultrasound of left shoulder dated 16 September 2008. Findings: A small focus of calcification is present within the distal supraspinatus tendon insertion, measuring only a few millimetres in diameter. This is associated with a somewhat arger area of decreased echogenicity within the insetting fibres of the supraspinatus tendon. The tendon is not particularly swollen and is clearly intact. No abnormality was seen in the subscapularis or infraspinatus tendons. The biceps tendons appeared normal. There was no fluid in the subacromial/subdeltoid bursa. Conclusion The appearances would be consistent with a small focus of tendinosis in the insertion of the supraspinatus tendon. There is no frank tendon tear. 4. Assessment Report and Treatment Plan dated 24 September 2008 from Mr Denholm. This was a non-surgical treatment plan and was given after he had received the result of the ultrasound scan. Mr Denholm stated, inter alia, as follows: On examination there is mild wasting of the deltoid and spinatae on the left. She is a little tender over the area of the greater tuberosity of the humerus and also a little over the AC joint. Although she has a full range of movement of the shoulder, she has a grossly disordered rhythm to both flexion and abduction. She has pain and weakness of resisted external rotation and has a positive impingement test associated with a subacromial click. Stressing the AC joint and the long head of biceps are both pain free. There is no neurovascular deficit to the upper limb. An ultrasound scan shows a small fleck of calcification within the supraspinatus tendon and a possible small partial thickness tear of supraspinatus. There is mild thickening of the bursa. Diagnosis Probable partial thickness tear supraspinatus left shoulder. I have recommended to her that in the first instance it would be reasonable to see if we can resolve her symptoms with a shot of cortisone into the subacromial bursa followed by a formal Jackins programme. She has accepted this. We have started this today and will review her again in six weeks time. Mr Denholm answered "yes" for the certificate that the treatment was for personal injury caused by an accident for which the appellant had cover. 5. Report to Mr Denholm dated 18 November 2008 from Pacific Radiology of MRI Scan of left shoulder. The conclusion advised from that scan was stated as follows: A small ovoid focus is seen in the supraspinatus tendon which may be an intrasubstance tear or a focus of intense tendinosis. A similar but slightly smaller lesion is seen in the subscapularis tendon. 6 6. Further assessment report and treatment plan from Mr Denholm dated 4 December 2008. This was a request for surgical treatment and it followed his receipt of the MRI scan. Mr Denholm stated, inter alia, as follows: I have now reviewed the MRI scan. This shows a hyperintense focus within supraspinatus consistent with a partial thickness tear. As this extends through more than one third of the tendon, the literature would indicate that ongoing failure of the cuff progressing to a full thickness tear is likely. Diagnosis Tear supraspinatus left shoulder. Mr Denholm advised that the procedure was for single tendon repair of rotator cuff and he again answered "yes" to the certificate that the treatment was for a personal injury for which the claimant had cover. 7. Report from Mr Denholm dated 20 July 2009 to appellant's counsel. This was a report prepared by Mr Denholm for the purposes of the review of the respondent's primary decision. Mr Denholm noted that the conservative treatment in the form of a steroid injection had not been successful and it was for this reason that he sought an MRI scan. He then stated as follows: The MRI scan demonstrated an area of high signal in the anterior part of the supraspinatus tendon which was noted by the radiologist could have been due to tendinosis or an intra-substance tear. (I note that this MRI was reported by a generalist radiologist and not a specialist musculoskeletal radiologist). I reviewed the MRI scan and considered the changes more consistent with a tear than endinosis. When correlated with the clinical history and the physical findings, the diagnosis of a tear was almost certain. On the basis of the clinical features, the radiological findings and the failure to respond to conservative treatment, I proposed to Mrs Hodgkiss that repair of the tendon be undertaken ... Mrs Hodgkiss came forward to surgery which was undertaken on 22 April 2009. At the time it was noted there was a very thickened, inflamed subdeltoid bursa. There was a tear, as expected, at the anterior part of the supraspinatus. This was 7mm anteroposteriorly and 4 mm medially laterally. This was repaired in a conventional fashion using suture anchors. The decline to fund Mrs Hodgkiss' treatment appears to be on the basis of a report undertaken by Mr Ray Fong. Although he notes both the findings at the time of ultrasound scan and the MRI scan, it would appear that he places undue emphasis on the ultrasound scan results, while relatively ignoring the MRI scan results. It is well accepted that ultrasound scanning is an effective and economical tool for undertaking initial screening of shoulder disorders. It is equally well accepted that MRI scanning is the gold standard by which other investigative procedures are judged. It is 7 universally accepted that if an MRI scan shows pathology that is not present on the ultrasound scan, that the MRI scan is the investigation that is accepted. The ultrasound scan suggested an area of tendinosis, but no frank tear. This did not fit the clinical features. The MRI scan did however confirm either tendinosis or a tear of the supraspinatus which did fit the clinical features. The differentiation between a tear of supraspinatus and tendinosis can be somewhat difficult even on an MRI scan. It is this situation that the clinical features need also be considered. In Mrs Hodkiss' case the features were clearly those of a tear of supraspinatus. On the basis of the clinical features and the MRI scan, I was confident that the diagnosis was that of a tear of supraspinatus and therefore surgical intervention was appropriate. 1. Mr Fong indicates in his report that he believes that the problem with Mrs Hodgkiss' shoulder was that of a gradual process relating to the jarring and the physical education eading to a problem with her rotator cuff. This ignores the history, the radiological findings, and the international consensus regarding shoulder pathology. 2 . Mrs Hodgkiss reported the shoulder was entirely normal until she lifted the kanga hammer. At that time she felt a ripping sensation in her shoulder. The pain started immediately and continued thereafter. Mr Fong's theory fails to address what event occurred that resulted in the ripping sensation and sudden onset of pain in Mrs Hodgkiss' shoulder on that day. Furthermore, it fails to address why a problem that he is proposing occurred gradually over a period of time should suddenly become symptomatic rather than gradually become an issue if it was caused by repetitive activities, as he is proposing. When rotator cuff pathology occurs as a result of repetitive minor events, there are almost invariably secondary changes that are present. These take the form of cystic change around the greater tuberosity of the humerus, sclerosis around the greater tuberosity of the humerus, and almost invariably some tendinosis of the supraspinatus tendon. In Mrs Hodgkiss' case, there were no radiological changes whatsoever. The changes seen on MRI scan in chronic conditions tend to be those of tendinosis of the affected tendon. This affects a large area of the tendon and not an intense single spot, such as is seen in Mrs Hodgkiss' case. In any event, the findings clinically suggested that the problem was that of a tear rather than tendinosis and this was confirmed at the time of surgery when the tendon was found to be non-tendinotic. In brief, Mrs Hodgkiss had none of the radiological features consistent with an ongoing gradual process. It is accepted that tears of the supraspinatus do occur as the result of attrition. Whilst this is relatively common in the elderly, it is much less common in young patients. At the recent International Shoulder Course, a paper on this matter was presented by Professor Itoi from Akita in Japan. There were large series of patients, both with and without shoulder symptoms, and he reported finding that approximately 30% of 70 year olds had a tear which had occurred without trauma, 20% of 60 year olds, but no patients under the age of 50 with an attrition type tear. At the time of her injury, Mrs Hodgkiss was only 40 years of age. For an attrition type tear, such as that proposed by Mr Fong to occur, would make Mrs Hodkiss rare in the extreme. The more logical and obvious diagnosis is that the tear occurred as a result of the personal injury by accident that she sustained. In summary, Mrs Hodkiss presents with features suggestive of a rotator cuff tear. This was supported by an MRI scan and confirmed at the time of surgery. The injury that she had sustained was both clearly the cause of the injury and of her ongoing symptoms. Her investigations showed no features consistent with any pre-existing problem. The internationally accepted literature would make the proposal by Mr Fong unsustainable. [7] Mr Miller, Counsel for the Appellant, submitted that both Mr Fong of the respondent's CAP, and the Reviewer, had placed too much emphasis and reliance on the ultrasound report of 2005 rather than the subsequent MRI Scan and the advice of Mr Denholm. Counsel further noted that the respondent's primary decision was given 8 for quite different reasons than subsequently given by the Reviewer. Counsel submitted that the advice and opinion of Mr Denholm should hold sway, he being a leading expert in the area of shoulder surgery, and having had international experience in this field. [8] Counsel submitted that the subsequent surgery carried out by Mr Denholm confirmed entirely what his pre-surgery advice had been and the necessary causal nexus was established. [9] Mr Parry, Counsel for the Respondent, referred to the fact of the first x-ray and ultrasound in 2005 which showed no abnormality and further, the ultrasound in September 2008, which showed no tendon tear. [10] Counsel further referred to the fact that Mr Denholm made no mention of the ultrasound and x-ray reports of 2005 and that this is a material flaw, Mr Denholm preferring to confine himself to the appellant's self reporting of the fact of a tear. DECISION [11] The right of a claimant to have the costs of elective treatment surgery met by the respondent requires the claimant to establish, on the balance of probabilities, that the surgery is for treatment of a personal injury for which the claimant has cover. In other words, there must be a causal nexus established between the medical condition for which treatment is sought and the personal injury for which cover has been granted. [12] In the case of this appellant the treatment sought was the repair of a rotator cuff tendon tear in her left shoulder. It is contended for on the appellant's behalf that such tendon tear occurred on the occasion of the incident involving the kanga hammer sprain/strain in November 2004, and which gave rise from the time of that incident to continuing left shoulder pain. [13] It was the evidence of the appellant, confirmed by her GP, that she had had no problems with that shoulder prior to the injury accident in November 2004, and it was further stated by the appellant in her evidence at review, and which was accepted by the Reviewer, that she had suffered no other incident or event subsequent to that 2004 accident which might have caused or contributed to her condition. 9 [14] It should be noted that the appellant's use of a kanga hammer on that occasion in November 2004 was a one-off event, and was not something that she had engaged in either before or subsequent to that event. [15] As earlier noted, the respondent's primary decision and the subsequent review decision were given on quite separate and distinct grounds and reasoning. However, as is now the case, as a matter of law, this Court is able to look at the matter afresh and in effect consider Mr Denholm's request for approval of surgery uncluttered by any reasoning given by the earlier decision makers, and come to its own decision based on the evidence which has been presented to it. [16] That evidence, in the main, consists of the advice and reports from Mr Denholm. Although the two earlier decisions had given different reasons, each decision had been based on the information provided in the 2005 ultrasound, which had identified no abnormality detected. [17] This situation, I find, was considered head-on by Mr Denholm, and where he identified that MRI scanning is the gold standard by which other investigative procedures are judged, and an MRI scan can show pathology that is not shown on the ultrasound scan. As Mr Denholm noted, the 2008 ultrasound scan suggested an area of tenderness but no frank tear, but this did not fit the clinical picture which he confirmed when he carried out the surgery. [18] Mr Denholm went further to say that in his opinion the clinical features were clearly those of a tear rather than tendinosis and it is the case that the appellant experienced pain from that shoulder from the day of the event when she sustained the injury for which she was granted cover. [19] I consider that the report and advice of Mr Denholm clearly identifies on the balance of probabilities, that this appellant's supra spinatus tear of the left shoulder was caused in that kanga hammer incident in November 2004. There is no evidence of any circumstance or incident which would give rise to that tear occurring from any other source, and I find that the advice of Mr Denholm that the surgery was required for treatment of an injury for which the appellant had cover was the correct decision based on the facts. [20] In the circumstances of this case I find that the ultrasound scans cannot be relied on and this was clearly identified by Mr Denholm at the time of surgery. 10 [21] Accordingly then, I find that the respondent was wrong to decline the request for the payment of surgical treatment, and that decision is quashed and I direct that the respondent do pay the costs incurred by the appellant with Mr Denholm for the surgical repair of her supraspinatus tendon. [22] Turning now to the question of review costs, I simply say I cannot understand how Mr Woodhouse could come to the decision he did, when there was clear and cogent evidence before him from Mr Denholm, a recognised specialist, who was giving evidence supportive of the appellant's claim. [23] At the very least, Mr Woodhouse should have taken cognizance of the fact of Mr Denholm's comments about the relative merits of ultrasound as opposed to MRI scans. In fact he doesn't even mention the MRI scan. [24] I propose to say no more but to identify that by no measure could this appellant's review application be considered as not being reasonably brought. Accordingly, the appellant is entitled to review costs in accordance with the Schedule to the Regulations, together with any qualifying disbursements which would include Mr Denholm's report of 20 July 2009. [25] The appellant being successful I allow costs on the appeal in the sum of $2,500 together with any qualifying disbursements. DATED this Gth day of August 2010 M J Beattie District Court Judge