Peni v Accident Compensation Corporation (Entitlement to Surgery)

IN THE DISTRICT COURT AT AUCKLAND [2018] NZACC 77 ACR 289/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN NANCY PENI Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 26 April 2018 Appearances: R Peni representative for the appellant F Becroft counsel for the respondent Judgment: 23 May 2018 RESERVED JUDGMENT OF JUDGE JH WALKER [Entitlement to Surgery] [1] The appellant in these proceedings is Nancy Peni and the Accident Compensation Corporation ("the Corporation") is the respondent. [2] This is an appeal pursuant to s 149 of the Accident Compensation Act 2001 ("the Act"). "3] The issue is a decision made by the Corporation dated 27 February 2017 declining to fund left ankle surgery for Ms Peni. [4] Subsequently there was a review heard before Mr John Greene on 1 August 2017. Reviewer Greene made a decision on 16 August 2017 dismissing the application for review. [5] Mrs Peni is represented in these proceedings by her husband Mr Peni pursuant to s 155(1) of the Act. Background [6] On 2 October 2015 Mrs Peni had an accident where she "slipped on stairs, twisted L ankle", sustaining a left ankle sprain. [7] Mrs Peni saw her doctor Dr Ranchhod, general practitioner, on 8 October 2015, who lodged an ACC claim on her behalf, which was automatically accepted by the Corporation on the same day. [8] On 22 October 2015 Mrs Peni was referred by her general practitioner for an x-ray of her left ankle. The report from the radiologist stated: Indications: Sprain. No joint effusion or fracture detected. Alignment is normal. [9] On 20 January 2016, Mrs Pen's general practitioner referred her to Mr Richard Street, orthopaedic surgeon for review. Mr Street reported back to Dr Ranchhod on 20 January 2016, setting out the injury as follows: That left foot was injured and she fell on the 2/10/2015. She twisted her foot and developed a lot of pain and swelling over the medial aspect of the hind foot and ankle which has failed to settle. The foot feels somewhat unstable and she has in fact had several falls since that time. The area has been strapped and she has used both Naprosyn and paracetamol to try and control pain. She has also had physiotherapy but this was not particularly useful. [10] Mr Street diagnosed Mrs Peni as having a tibialis posterior deficiency and recommended that she would benefit initially from a conservative treatment. [11] This programme included calf stretching using a block, regular tibialis posterior strengthening exercises as well as splinting with an arch support. [12] Mr Street states: If these measures are ineffective then a surgical approach is required ... [13] Mrs Peni was referred to Shaw Orthotics in January 2016. These reports stated: A diagnosis of tibialis posterior tendonitis left. Left medial arch stabbing pain located around tib post insertion. Needs to take painkillers most of the time. Pain level between 5-8 of 10, sometimes 10/10. [14] A quote was given by them for the supply and fitting of soft custom shoe orthotics. 15] Dr Odedra provided a review for the Corporation on 20 April 2016 and noted Mrs Peni's symptoms and clinical history was consistent with an ankle sprain which would be expected to resolve within six to eight weeks. He states: As noted assessment by Mr Street, orthopaedic surgeon some almost four months later documents tibialis posterior tendon pathology - this is normally a gradual process type condition ... At this state this is a clinical diagnosis as no specific US, MRI have been done at this stage? This was accordingly recommended. [16] In May 2016 the Corporation approved funding for the assessment, fitting and of custom orthotics for Mrs Peni. [17] It is noted that Mrs Peni saw Mr Street again on 16 January 2017. Mr Street made a further report to Dr Ranchhod which stated (page 19 BofD): It has been about a year since we saw her last and the reason that she hasn't re- presented is that she has been looking after her son Shane. She has recently found that she really can't walk unless she uses a moonboot and that she is experiencing pain over both the medial and lateral aspects of the foot. ... Weightbearing x-rays show a satisfactory ankle but a degree of dorsilateral pri- talar subluxation that we see in tibialis posterior insufficiency. I think that a surgical approach is required here and what we would need to carry out is a os calcis translational osteotomy, fixing that with a screw. [18] An x-ray was obtained on 16 January 2017. The findings state (page 20 BofD): Indication: Tibialis poseterior deficiency. Findings: There is a marked pes planus deformity. Mild metatarsus primas varus and moderate hallux valgus with associated small bunion. Narrowing of the central aspect of the subtalar joint with subchondral sclerosis adjacent to the angle of Gissane suggests subtalar impingement. Mild joint space narrowing of the naviculocuneiform and tarsometatarsal joint space noted. The other joint spaces are normal. No fracture or ac osseous abnormality. [19] Mr Street filed an Assessment Report and Treatment Plan ("ARTP") dated 31 January 2017 seeking surgery to treat Mrs Peni's tibialis posterior deficiency left foot. In terms of causation he states: The injury where she fell, damaging her left foot on 02/10/15 appears to have directly damaged her tibialis posterior with there being no symptoms prior to her injury of significant problems since that time. [20] With respect to relevant pre-existing factors he states: There is no problem with her left foot prior to her injury on 02.10.2015. [21] The ARTP repair request was considered by Dr Medlicott, orthopaedic surgeon of Clinical Advisory Panel ("CAP") on 23 February 2017. He reports (page 27 BofD): The client was born in 1954 and occupation is car, taxi and light van driver. The request is for a non-core procedure for tibialis posterior deficiency left on the 2.10.2015. I note twisted the foot on stairs and developing pain and later developed an adult acquired flat foot. There is only one covered episode which is the 2.10.2015. I note Mr Street's ARTP and I note the imaging findings which are typical for adult acquired flat foot and this condition is a gradual process problem due to disease of the tibialis posterior and leads eventually to pain and discomfort and is not known to be caused by single episodes of trauma. I don't think there is any causal link here. The CAP statement on the causation and pathogenesis of tibialis posterior disease syndrome is relevant to this case. [22] On 27 February 2017 the Corporation provided a decision letter to Mrs Peni stating that: To be able to pay for your surgery, we need to be sure it is for the injury we agreed to cover and not an unrelated or pre-existing health condition. In this case the injury we approved cover for is: Ankle sprain - side: left. This injury is a result of your accident of 02.10.2015. We've looked at all available information from your treatment providers and have enclosed a summary of this. The information shows the surgery is required to treat tibialis posterior disease of the left foot. We've determined that this condition wasn't caused by your accident of 02.10.2015 which means we are unable to cover this condition and we are unable to approve your specialist request to pay for your surgery. [23] On 20 April 2017 Ms Peni applied for a review of the Corporation's 27 February 2017 decision. [24] The review proceedings, as noted, took place before Mr Greene, Reviewer on 1 August 2017. Reviewer Green issued a decision on 16 August 2017 concluding that a probable causal link between Mrs Peni's accident in October 2015 and the pathology now requiring surgical treatment could not be established. Accordingly, the review application was dismissed. [25] The reviewer stated (page 39 of BofD): ACC's Branch Medical Advisor, Dr Odedra, has noted that tibialis posterior tendon pathology is generally consistent with a gradual process condition. It was he who recommended a bilateral ultrasound of Mrs Peni's ankles, or an MRI scan in order to better understand the tibialis posterior tendon pathology. ACC followed that advice. It asked Mr Street for his opinion about referring Mrs Peni for a scan. Unfortunately, he did not respond. [26] The Reviewer states: I consider that ACC's decision was reasonable, based on the available medical evidence. However, ACC's medical advisor thought it desirable to obtain either a bilateral ultrasound scan or an MRI scan to further investigate Mrs Peni's ankle pathology. Because Mr Street did not respond to a request for a referral for a scan, ACC felt that it could not do anything further. Mr James said at the hearing that ACC would consider further medical evidence if provided [27] This appeal was filed by Mrs Peni on 16 August 2017. [28] Mrs Peni provided a further report from Mr Street dated 29 August 2017. He noted that Mrs Peni had tibialis posterior insufficiency which appeared to have come on following a fall and has suffered several other falls since that time. [29] In Mr Street's view, obtaining an MRI scan or ultrasound in this case would a waste of time and money giving the imaging would not be able to assist in determining the aetiology of the injury to the tibialis posterior. [30] He noted: Some patients present with a tear and some with multiple splits which can occur as a result of injury, infection, and associated tendon damage. [31] On 29 August 2017 a further letter from Mr Street was received. This states: I'm writing regarding Mrs Peni, a lady who presents with tibialis posterior insufficiency which appears to have come on following a fall, and in fact she has had several other falls since that time. She now presents with deficiency of the tibialis posterior and the usual appearance of the foot in this situation - namely she has tenderness over the lateral side of the foot where she is getting some impingement from the fibula tip, the tibialis posterior is weak, the calf is tightened, and the heel has gone into valgus malalignment. There is some mild supination as well. All of these physical findings are expected with a tibialis posterior insufficiency. An MR scan or an ultrasound, in this case, is a waste of time and indeed, ACC's money. We know that the tibialis posterior is not functional and we would not gain information from imaging this structure - it wouldn't affect the surgery that is planned in any way. It also wouldn't tell us the multiple splits which can occur as a result of injury, inflammation, and associated tendon damage. I'm not sure why Dr Odedra feels that this would be of any value. Mrs Peni does have appropriate plain xray evidence of tibialis posterior insufficiency, namely so-called dorsolateral peri-talar subluxation. One could use some soft tissue imaging to image the spring ligament area, but again that doesn't affect our management of this problem and would be unlikely to change the aetiology. [32] The CAP members provided a report dated 6 December 2017. The panel submitted a number of questions: 1. What is the diagnosis/condition requiring treatment? The condition requiring treatment in this case is tibialis posterior insufficiency. The tibialis posterior tendon is specifically at risk of this insufficiency because of its weightbearing function and role in forward propulsion of the foot in normal gait and activity. This condition reflects a failure of the tibialis posterior in terms of its structural integrity which occurs progressively over time with the recognised tendon degenerative process (tendonopathy) that can occur throughout the body either from aging or from repeated episodes of microtrauma acting over period of time. Consequent to this loss of structural integrity of the tibialis posterior tendon there is a functional loss of the tibialis posterior tendon which results in a loss of dynamic stability of the arch of the foot and consequent flattening of the foot Furthermore there is a loss of the contribution from the tibialis posterior tendon to propulsion (walking). 2. In your view, has the diagnosis identified above been caused by the October 2015 accident? Please explain your answer with reference to the radiological reporting and the mechanism of injury described by Ms Peni. No. It is extremely rare for tibia's posterior tendon structural failure and dysfunction to occur as a consequence of a single episode of trauma. There are very rare circumstances where a single episode of trauma may result in a rupture of a tendon such as the tibiaiis posterior tendon but this would be supported by an immediate and significant disability resulting from the immediate failure of function associated with significant pain. The clinical picture obtained from the notes is supportive of a progressive loss of function rather than an immediate and severe disability. There would also be a history of a significant traumatic event to the tibialis posterior tendon. In this case the client has had a very minor episode of trauma which has rendered the tibialis posterior insufficiency/tendonopathy symptomatic. The CAP notes that the client has been assessed by the treating surgeon on a number of occasions and there is no suggestion that the client has suffered a clinical scenario consistent with acute traumatic tendon rupture from a single event. The radiology in this case, in so far as it is available, again supports a progressive loss of function over time, consistent with a tibialis posterior insufficiency or tendonopathy from attrition, rather than a rupture of the tendon at a single moment in time. The CAP further notes that there has been no soft tissue imaging undertaken of the tibialis posterior tendon, despite previous ACC advice that this would be beneficial to assessment in this case. A letter received from the treating surgeon dated 29/08/2017 does not believe that any soft tissue imaging is necessary. It states that the diagnosis is tibialis posterior insufficiency and her clinical scenario is as a consequence of the deficiency of the tibialis posterior and that the usual appearance of the foot, in this scenario, is now apparent. The treating surgeon does not suggest at any time that the covered injury has ruptured the tibialis posterior tendon but rather it has brought on the clinical presentation following the fall and alongside a number of subsequent falls also. 3. What is tibialis posterior insufficiency? Tibialis posterior insufficiency is a progressive failure of the function of the tibialis posterior tendon that occurs over time as a consequence of the underlying development of wear and tear degeneration in the tibialis posterior endon which occurs with progression through the lifespan. This is a recognised phenomenon in many tendons of the body in humans and the tibialis posterior is no exception. Significant further detail in relation to this condition is available in the CAP statement on Posterior Tibialis Tendon Disease that you will find appended to this opinion 4. In his report, Dr Medlicott considered that Ms Peni's symptoms were "typical for adult acquired flat foot". Please explain how this conclusion was reached, and what it means. Adult acquired flat foot is the structural outcome of the progressive failure of the tibialis posterior tendon over time. A typical clinical scenario, which is reflected in this case, is of a clinically silent tendon condition until minor trauma renders the tibialis posterior tendon symptomatic. The injury does not cause the structural change but "activates" it and there is progressively increasing pain and discomfort which, as time progresses, results in increasing dysfunction of the tendon itself and the development of anatomical abnormality ced on x-rays. The clinical course that has occurred and the radiological appearances that ensue might collectively be referred to as 'adult acquired flat foot' as Dr Medlicott opines. 5. What is the link between tibialis posterior insufficiency and acquired flat foot? As outlined above, as the tibialis posterior tendon fails in its ability to function there is a loss of the longitudinal medial arch of the foot and clinical and radiological appearances of a flat foot become apparent. This anatomical appearance is as a consequence of the dysfunction or insufficiency of the tibialis posterior tendon. 6. Please also review and comment on the contents of Mr Street's recent report, dated 31/08/2017. As outlined above, Mr Street's letter does not dispute the diagnosis of tibialis posterior insufficiency and the main thrust of his letter is to suggest that soft tissue imaging at this time, to confirm what is readily clinically apparent would be futile. He is clearly of the view that this is tibialis posterior insufficiency, as is the CAP. There is no suggestion from Mr Street in this letter that there is a condition apparent that could be caused by a single episode of trauma. It would be unheard of, had there been any suspicion of a rupture of this tendon, for there not to have been soft tissue imaging undertaken. Mr Street opines that the tibialis posterior insufficiency has come on after a fall and this is also agreed with by the CAP. In this setting, "come on" implies that it has become clinically apparent or symptomatic rather than suggesting that a single event has caused the entire spectrum of pathology to become apparent. As the CAP document on posterior tibial tendon disease outlines there is a plethora of literature available that describes this condition. Expert external opinion in this document recognises that tibialis posterior problems, in the client's age group, are typically due to a degenerative wear and tear process rather than acute trauma. The CAP is of the view that the tibialis posterior insufficiency, or tendonopathy, is a chronic, progressive, degenerative wear and tear condition of the tibialis posterior tendon that has occurred over a long period of time and has been rendered symptomatic by the covered injury rather than the covered injury being the predominant cause of the pathology now apparent. This position is well supported by the literature and clinical opinion in the medical community. Position of the Appellant [33] Mr Peni has been assisting his wife as representative in respect of this appeal. He provided written submissions and spoke to them at the appeal. "34] He advised his wife is the caregiver of their son Shane and has been since his birth. Shane was with them at Court. Mr Peni told me that his wife has been also a taxi driver for six hours a week and been under considerable stress. [35] He advised me that retrospective assistance for Shane's care was granted by the Corporation in 2001 and that they have three other children. [36] He stated that she was on painkillers and has been wearing a moon boot. This is about the tenth or eleventh moon boot. [37] Mr Peni's written submissions state Mrs Peni was paid by ACC to look after Shane 24/7. Mr Peni states Mrs Peni was an employee of ACC and still is, although indirectly, because this is through another health provider, Geneva Health [38] He refers to the history of events up to the review. He states: There has been about 40 years of looking after our son 24/7, 24 hours seven days a week. Put in context 14,600 days. During this time, many incidents, falls and sprains happened. But were not reported. [39] Mr Peni refers to there being 37 accepted claims, yet only one accepted claim for an ankle sprain. He states this was "The difference of opinion between ACC clinical advisors and Mr Street". [40] Mr Peni brought my attention to CAP's report at page 44 of the B of D in answering: In your view has the diagnosis identified above been caused by the October 2015 accident? Please explain your answer with reference to the radiological reporting and the mechanism of injury described by Ms Peni. No. It is extremely rare for tibialis posterior tendon structural failure and dysfunction to occur as a consequence of a single episode of trauma. There are very rare circumstances where a single episode of trauma may result in a rupture of a tendon such as the tibialis posterior tendon but this would be supported by an immediate and significant disability resulting from the immediate failure of function associated with significant pain. The clinical picture obtained from the notes are supportive of progressive loss of function rather than immediate and severe disability. [41] Mr Peni raised the question that although the opinion did suggest it could be "extremely rare" but this did not say it was not possible. [42] CAP's report noted the client had been assessed by the treating surgeon on a number of occasions and there was no suggestion that the client had suffered a clinical scenario consistent with acute traumatic tendon rupture from a single event. CAP stated: The radiology in this case, insofar as is available, again supports the progressive loss of function over time, consistent with a tibialis posterior insufficiency or tendinopathy from attrition, rather than a rupture of the tendon at a single moment in time . [43] Mr Peni concluded: Why Are We Here? We are here because we believe ACC should pay for Mrs Peni's operation. This is so she can continue to look after her son which she has always done, for the past 43 years. The operation will enable her to carry out this role, by easing the continuous pain which she suffers from daily since the accident on 2/10/2015. Mrs Peni is still an employee of ACC, even though for the past 2 year she has paid by Geneva Health. Geneva Health, who is paid by ACC. Therefore, indirectly she is still employed by ACC. We also find it hard to believe that after 40 years of looking after her son, a twisted ankle has now become a tibial posterior deficiency. The Position of the Respondent [44] Ms Becroft provided written submissions and spoke to these at the hearing. She referred to Mrs Peni's injury to her left ankle on 2 October 2015 stating: It is the position of the Corporation that she suffers from a pre-existing condition in the ankle which did not arise as a result of the accident. [45] She refers to Mrs Peni's accident on 2 October 2015 when according to the claim she "slipped on stairs, twisted L ankle". [46] Ms Becroft refers to Mrs Peni seeing Dr Ranchhod, GP who lodged an ACC claim for her that day which was automatically accepted. [47] Again, on 22 October 2015 an x-ray was undertaken which indicated any signs of abnormality. [48] In January 2016 Mrs Peni was referred by her GP to Mr Street orthopaedic surgeon for review who described the events as: The left foot was injured when she fell on 02.19.15. She twisted her foot and developed a lot of pain and swelling over the medial aspect of the hindfoot and ankle which has failed to settle. [49] It is noted that Mr Street diagnosed Ms Peni with tibialis posterior deficiency and recommended conservative treatment which included orthotics and stretching exercises. [50] The file was reviewed by Dr Odedra, Branch Medical Advisor on 20 April 2016 and noted Ms Peni's symptoms and clinical history were consistent with ankle sprain which would be expected to resolve within six to eight weeks. He concluded: As noted assessment by Mr Street, orthopaedic surgeon, some almost four months later documents tibialis posterior tendon pathology - this is normally a gradual process type condition. [51] Ms Becroft states that Mr Odedra recommended a bilateral ultrasound to confirm the diagnosis and funding was approved for an assessment and to provide orthotics. [52] It is noted there was no further contact with the Corporation until January 2017 when Mr Street saw Mrs Peni again and reported increased discomfort and foot deformity. He arranged for an up to date x-ray and one view showed a degree of dorsolateral peri-talar subluxation which was consistent with a diagnosis of tibialis posterior insufficiency. Mr Street felt that surgical approach was now warranted. [53] Ms Becroft refer to Mr Street filing an ARTP and this was considered by Dr Medlicott, orthopaedic surgeon for the Clinical Advisory Panel on 23 February 2017. Dr Medlicott noted the radiological findings were consistent with the diagnosis of adult acquired flat foot, a gradual process condition which arises as a consequence of tibialis posterior disease but is not known to be caused by a single traumatic episode. He concluded that Mrs Peni's current condition is unlikely to be causally related to the sprain of October 2015. The Corporation issued its decision declining funding and a review was undertaken, [54] It is noted that the Reviewer concluded that a probable causal link between her accident of October 2015 and the pathology now requiring surgical treatment had not been established. [55] In respect to the appeal a further report was obtained from Mr Street dated 29 August 2017. Mr Street noted that Mrs Peni's tibialis posterior insufficiency appeared to come on following the fall and that she has suffering several other falls since that time. It is noted that Mr Street was of the view that an MRI scan ultrasound was a waste of time. [56] Ms Becroft referred to the CAP report and the questions asked (see para [32] above). She also referred to CAP being asked if the diagnosis caused the accident of October 2015. CAP stated no, that it was extremely rare that such a failure and dysfunction would occur as a consequence of a single episode of trauma. [57] In addition, Ms Becroft stated that CAP stated there was no suggestion that the client had suffered a clinical scenario consistent with acute traumatic tendon rupture from a single event and answered the question "What is tibialis posterior insufficient". [58] Ms Becroft produced a helpful diagram at the hearing which identified the position of the tibial tendon. [59] In her submissions Ms Becroft states: 3.1 Pursuant to clause 1(1) of Schedule 1 to the Accident Compensation Act 2001, the Corporation is liable to pay or contribute to the cost of nents, such as treatment needed to treat a personal injury for which the claimant has cover. 3.2 Sections 26(2) and 26(4) exclude from the definition of "personal injury', any injury caused wholly or substantially by either a gradual process condition or the aging process. 3.3 The Corporation has declined to pay the appellant's surgical costs on the basis that the surgery is not necessary as a result of the personal injury for which the appellant has cover. [60] She refers to the decision of Ambros v ACC which states at paragraph [43]: The generous and unniggardly approach referred to in Harrild may, however, support the drawing of a robust inference in individual cases. It must, however, always be born in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a count to draw even a robust inference on causation. Risk of causation does not suffice. [61] Ms Becroft viewed the medical evidence arising from both Mr Street and the CAP which has already been referred to. In summary, she states that the weight of the evidence supports the Corporation's decision. She states: 3.15 When one stands back and considers the competing evidence, it is the evidence of CAP that is more persuasive, not just because of how it treats the broader medical questions, but also because of the detail provided to support its conclusions on causation specific to this case. 3.16 In contrast, Mr Street's conclusions are equivocal and only support a emporal link between the October 2015 accident and the pathology to be addressed at surgery. [62] Mr Street, in response, said that after the accident occurred Mrs Peni's foot did not get better. Mr Street thought that having an ultrasound was a waste of time. Also, I understand that Mrs Peni is listed in the public health service as having the necessary operation and I was advised it is expected to be made available to her within three to four months. [2007] NZCA 304. Discussion and Conclusion [63] It is accepted that Mrs Peni has had a heavy work load with the care by herself and her husband of their son since he was very young and their other children. In addition to care, which I understand is on a 24 hour basis, she also operated as a taxi driver for short periods of time. [64] The ankle sprain, which occurred on 2 October 2015, appears to have been the result of a number of previous concerns relating the same ankle, although there was only one earlier claim. The background in respect to the CAP report of 8 December 2017 as noted states: Subsequent to the covered accident occurring the client has developed persisting issues relating to the tibialis posterior tendon on the same ankle. Various treatment providers have all been consulted and a number of treatment options have been instigated. This has culminated in the treating surgeon recommending a surgical process to address the tibialis posterior tendon pathology. [65] There is no doubt that Mrs Peni requires treatment and I am pleased to hear that this has now been scheduled in the public health system. [66] I sympathise with her increasing discomfort and the necessity of her having to wear a moon boot which has caused some difficulties. [67] It is clear that with tibialis posterior insufficiency the positional tibial tendon is specifically at risk because of its weight bearing function and its role in the forward propulsion of the foot in normal gait and activity. [68] I accept the report provided by CAP that: "This condition reflects a failure of the tibialis posterior in terms of structural integrity which occurs progressively over time with a recognised tendon degeneration process (tendinopathy) that may occur throughout the body either through aging or repeated episodes of microtrauma acting over a period of time. [69] The mechanism of Mrs Peni's injury indicates this was a minor episode of trauma, being a sprain, which normally would have been expected to resolve within six to eight weeks. There is no evidence to suggest that she was involved in any accident at this stage which would be consistent with a tendon rupture from a single event. [70] It is noted that the treating surgeon did not suggest at any time that the covered injury had ruptured the tibialis posterior tendon but rather brought on the present clinical presentation following the fall, and also alongside a number of subsequent falls. [71] The other symptom has been identified as flat foot. This is attributable to the structural outcome of a progressive failure of the tibialis posterior tendon over time. [72] It is noted that injury does not cause the structural change but "activates" it. As time progresses there is progressively increasing pain and discomfort which results in increasing dysfunction of the tendon itself and the development of anatomical abnormality, as has been evidenced in the x-rays. [73] In respect to Mr Street's reports they do not dispute the diagnosis of tibialis posterior insufficiency. There is agreement accordingly as to the diagnosis. [74] Mr Street does not in any of his reports indicate that this condition can be caused by a single episode of trauma. Conclusion [75] I find that Mrs Peni had the ankle incident which caused a sprain, but it would appear that she was prone to ankle injuries which happened over a considerable period. [76] I accept the opinion of the CAP that it is much more clinically likely that her condition requiring surgery was not caused by a single event, but the accident made the condition symptomatic, i.e. the degenerative condition of wear and tear became evident and this was the primary cause of the pathology. [77] Accordingly, I find the decision made by the Corporation to decline the application for surgery based on Mrs Peni's ankle sprain was correct and that the decision of the Reviewer Mr Greene of 16 August 2017 should be upheld. [78] Mr Peni has assisted his wife in presenting her case today and it is appreciated the presence of the family at the hearing before me. I do hope that the surgery contemplated to remedy Mrs Peni's condition can be undertaken as early as possible. [79] Accordingly, this appeal is dismissed. [80] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: Medico Law, Auckland, for the respondent ACR 289-17-Peni