Hurley v Accident Compensation Corporation

IN THE DISTRICT COURT AT DUNEDIN [2012] NZACC A / 3 ACR 249/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN PATRICIA MARY HURLEY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 October 2012 Appearances: P Sara for Ms Hurley I Hunt for the Corporation Judgment: 24 December 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 28 September 2008 Mrs Hurley was injured while playing with her children in the garden, she suffering a fall initially recorded as causing a sprain of the cervical spine on the right side. [2] She received various forms of conservative treatment but the point was reached where she was referred to Mr Hodgson, orthopaedic surgeon. He then submitted an ARTP for surgery in the form of arthroscopy and decompression right shoulder, the diagnosis being of an impingement syndrome in that locality. PATRICIA MARY HURLEY V ACCIDENT COMPENSATION CORPORATION DC DUN [2012] NZACC ACR 249/10 [21 December 2012] [3] The Corporation declined the application for a surgery entitlement. It asserted in its 29 April 2009 determination that the medical evidence available did not support a causal link between the need for surgery and the covered accident. [4] It said that evidence in fact indicated that surgery was required because of a gradual process condition rendered symptomatic by the accident. [5] Mrs Hurley sought a review of this determination but was unsuccessful and has now appealed. Background [6] I have already referred briefly to the accident, to the injury, to the request for surgery, and to the Corporation's response. [7] What the Elective Surgery Medical Adviser had written when asked to consider the ARTP was this: The client has been diagnosed with an impingement syndrome. The treating surgeon mentions her acromion as hooked. This is a likely predisposing factor to impingement. The US scan describes thickening of the SA/SD bursa. This is consistent with longstanding impingement, Impingement was demonstrated on dynamic scanning. Outlet impingement syndrome is a gradual process condition which in this case has probably be rendered symptomatic by the covered accident. Given this I believe the client's condition is unlikely to be causally linked to the covered accident. [8] So here - given the ARTP certification' by Mr Hodgson - was a conflict of view between him and the Elective Surgery Medical Adviser Dr Farr. In that state of affairs Mrs Hurley was referred to Mr Swan who, as is obvious from his report of 10 December 2009, is an orthopaedic surgeon who specialises in disorders of the shoulder. [9] I particularly note that he has taken a special interest in such disorders since 1992 and was a foundation member of the New Zealand Shoulder Society; also that That amounting to the assertion of a causal nexus. he was actively involved in the development and implementation of the New Zealand Rotator Cuff Repair Register. [10] Mr Swan expressed this opinion; Patricia Hurley is suffering from a damaged subacromial bursa as a direct result of her injury on 28/09/08. A sudden fall directly onto the shoulder would have produced stretching and distortion of the subacromial bursa and compression of the bursa against the coraco-acromial arch resulting in crushing, splitting tearing and contusion productive of the typical immediate symptoms of pain radiating into the upper arm followed by functional inhibition as reported after her accident. The right shoulder was completely asymptomatic prior to her injury so much so that she was able to participate in activities requiring vigorous and repeated use of the shoulder such as netball, softball, swimming and dance without any difficulty. In the absence of any pre-injury symptoms, especially none that develops slowly and progressively over time, and in the absence of any recognised pathological condition of the shoulder, she cannot be described as suffering for a "gradual process condition" at the time of her injury. ... ... Alistair Farr commented that "the treated surgeon mentioned her acromion is hooked" and that "the US scan describe (sic) thickening of the SA/SD bursa", I have personally viewed the x-rays and there is no radiological evidence of a hooked acromion and, on review of the ultrasound scan, there is minimal widening of the bursal interval over the supraspinatus tendon which is more likely to represent increased fluid as well as scarring and "fibrinous bursitis" following the direct injury. Neither of these factors can therefore be said to be "consistent with longstanding impingement" as stated by Dr Farr, She cannot therefore be described as having an "outlet impingement syndrome" but can be described as having a secondary impingement syndrome due to the damaged subacromial bursa over the supraspinatus tendon impinging against the coraco-acromial arch. (Emphasis added) [1 1] In expressing these views Mr Swan referred to criteria recommended by the New Zealand Shoulder and Elbow Society for the acceptance of secondary impingement as being traumatic in origin. Here he spoke first of: 1. An ACC certified injury to the shoulder. 2. No relevant previous problems in the injured shoulder. 3. An injury of sufficient magnitude and an appropriate mechanism to damage the bursa. [12] He then referred to "acceptable mechanisms" as including a fall and a wrenching injury. He then returned to the criteria, the remaining elements being: 4. New symptoms of pain and dysfunction/incapacity caused by the injury and starting soon after the accident. 5, Persistence of symptoms despite conservative treatment. 6. Imaging features normal for age. Mr Swan then expressed the opinion that Mrs Hurley fulfilled all the recommended criteria. [12] Mr Swan noted that the request for surgery related to a procedure designed to relieve symptoms of pain and dysfunction in the injured tissues. [13] He linked the need for surgery to the accident because in his view that had sufficient injured the shoulder to damage the subacromial bursa. [14] Moreover the presence of a pre-existing lesion, or gradual process condition, was not supported by any medical evidence. In fact the imaging studies were normal for her age. [15] Mr Swan's views were referred to CAP which initially responded through Dr Michael Austen. This 26 February 2010 response made reference to a study by Henkus and Others as well as some number of others that were identified in it. [16] The response ended in these terms; The cause of this client's thickened degenerative bursa has not in all likelihood developed from a single event. Inflammatory cells in the bursal tissue are not a feature of this condition. Dr Swan has indicated that the surgery is to fix the damaged bursa. We have outlined level 1 evidence to contrast Dr Swan's level 5 opinion that the damage to the bursa is on a Journal of Bone and Joint Surgery 2009; 91B: 504-510. When writing this judgment I recalled that the Henkus paper had been discussed at modest length in my judgment in Kirby v ACC [2012] NZACC 280. However, as the matters ventilated there were not part of the debate at the hearing of this appeal, I have left them completely out of account in writing this judgment, pathological basis in fact degenerative fibrosis with or without thickening and therefore the likelihood that it has arisen from any single event is low. In our view, it is the degree of fibrosis that determines the level of symptoms as opposed to any inflammatory conditions. While the client may have developed symptoms of her impingement at the time of the accident, it is more likely that her persisting impingement on abduction that is also symptomatic is a reflection of a degenerative process in the shoulder's subacromial space that has arisen over a much longer period of time. (Emphasis added) [17] This opinion was referred back to Mr Swan who responded on 14 March 2010. In doing so he noted that the CAP opinion was conditioned upon matters including the supposed fact that he had suggested that there was "an inflammatory response in the subacromial bursa" when in fact there was no medical evidence to support that view. [18] He also noted that the response appeared to rest on the proposition that there was a hooked acromion. As to that, he rehearsed that he and the radiologist had examined the x-rays and the acromion was not hooked. [19] As to the "inflammatory response" he pointed out that nowhere in his report did he use that term nor either had he suggested that inflammation was the lesion to be treated by the requested surgery. [20] The term he had used was "fibrinous bursitis", an all embracing expression used by a number of authors to describe the status of the bursa at surgery in the majority of cases of traumatic impingement where it was found to be split, frayed and thickened by fibrosis. [21] Mr Swan went on to say this: While my diagnosis and assessment and proposed management is based on a careful history taken personally from the patient, my own clinical examination of both the patient and the imaging studies, the CAP's argument is based entirely on the reported finding of a small area of thickening of the subacromial bursa overlying the supraspinatus tendon. Much of the CAP's argument and comments involve "intrinsic tendon changes" including changes in the "a vascular zone" of the tendons or at the bone-tendon junction, but as the tendons were found to be entirely normal on the ultrasound examination, any comments or arguments based on the status of tendons as opposed to the bursa can be disregarded. With a hooked acromion, inflammation and intrinsic tendon changes excluded, the only remaining factor in the CAP's argument is the isolated finding of a small area of bursal thickening overlying the supraspinatus tendon and whether this represents a degenerative or a traumatic lesion. (Emphasis added) [22] Mr Swan then proceeded to: Note that the ultrasound study did not identify which component of the bursa was contributing to the thickening of the bursal layer, nor was there any measurement of the degree of thickness. On the assumption that the thickening in a small area was due to fibrosis, the argument would come down to whether this was degenerative or traumatic. Mrs Hurley was only 38 years old at the time of her injury and the ultrasonographic findings in respect of the tendons were normal, so there was no basis there for bursal changes. The isolated finding of an unquantified and localised area of bursal thickening had to be correlated with a heavy fall directly on to the right shoulder resulting in immediate pain and difficulty with moving the arm followed by an increase in symptoms. The forces applied to the subacromial bursa by a heavy fall would be more than sufficient to stretch and distort the bursa so as to activate the free nerve endings and compress it against the coraco-acromial arch forcibly enough to be productive of the typical immediate symptoms of pain and dysfunction described by Mrs Hurley. As in all non-specialised tissue, such damage was productive of fibrosis or scarring as part of the normal healing response and that noted by Dr Austen would have been the normal reparative process following damage at the time of injury, and was most unlikely to be due to any pre-existing degeneration given her age and previous absence of symptomology, [23] So it was his view that; The case hinges on the presence of an unquantified localised thickening of the subacromial bursa overlying the supraspinatus tendon just over two months after the injury and the balance of probabilities is strongly in favour of the changes being due to a damaged subacromial bursa undergoing reparative and fibrotic changes. [24] It is appropriate at this point to interpose the description of the accident that Mrs Hurley gave on review which was that; ... when she tripped over the garden hose she took the brunt of the fall on her right knee and right shoulder. The pain in both were sharp and immediate, As she thought she had only bruised herself she waited for a couple of weeks for the pain to subside. Mrs Hurley first sought treatment from her GP, Dr Wilson, who thought she may have sprained her neck as well as hurting her knee and shoulder. The x-rays and physiotherapy determined she did not have a neck sprain and what she was experiencing was referred pain from her shoulder. ... after her accident she lost full function in her right arm. She cannot lift it above shoulder height without experiencing pain ... before her fall ... she had no problems with her shoulder ... she is a physically fit and active person and before her accident played softball and coached and played netball, (Emphasis added) [25] On 19 March 2010 Mr Michael Chin, orthopaedic surgeon, carried out a right arthroscopic subacromial decompression and limited acromioplasty, the surgery being performed through the public system. His operation note was as follows: Procedure: The skin was prepped in usual fashion. This patient was placed semi-lateral using spider with skin traction. Routine posterior lateral and anterior portals were made. Findings: Shoulder joint showed normal articular surfaces, the subscapularis tendon was normal and long head of biceps was normal. Good views of the articular side of the cuff were obtained and showed a normal supraspinatus and infrasuperinatus tendon. There was some minor injection in the mid proximal portion of the cuff. The joint was then drained and then subacromial space entered. This showed thickened bursa. There was no overt impingement lesion and no significant subacromial spur. The CA ligament was well seen. Rotator cuff viewed superiorally was normal. ... [26] Asked to comment on causation Mr Chin wrote on 24 November 2010: ... my impression is that the source of the bursitis is most likely to be traumatic. ... there was no significant acromial spur which is generally recognised as an association with rotator cuff pathology. There was no evidence of an "impingement lesion" that is evidence of chronic impingement on the anterior acromion or coraco-acromial ligaments and the cuff was otherwise normal. She is young i.e. she is less than 40, she does not have a particularly provocative occupation in that she is a typist and I am not aware of any other factors that would contribute to a pre-existing condition, My clinical impression would be that her persisting pain and bursitis relates directly to her trauma and there is no evidence of any relevant pre-existing condition. [27] I come now to what was a lengthy rejoinder from CAP - lengthy on account of its appendices - dated 25 June 2012. I first of all note that the hooked acromion idea had been abandoned by CAP given the surgical findings of Mr Chin. [28] CAP acknowledged that the US scan reported normal rotator cuff tendons (as had Mr Chin) but then rather enigmatically said that "the absence of evidence is not evidence of absence" [29] A somewhat better picture of what was presumably being suggested might be taken to emerge when one read on and came to propositions such as that failure of rotator cuff tendons begins on a microscopic basis and propagates with repetitive impingement through to a complete cuff tear over time. These (and other observations immediately following) are not however - at least not in any transparent way - clearly related by CAP to Mrs Hurley's case, 30] Dealing with fibrosis of the bursa CAP said that ongoing symptoms were more likely to be on the basis of repetitive impingement over time rather than a one off insult and that the reparative process proposed by Mr Swan mandated an inflammatory response which the literature indicates was absent on histological examination. The Court knows from what Mr Swan reported that Mrs Hurley had an active lifestyle, he seeing that as a positive, i.e, as indicating freedom from adverse pathology. See otherwise my footnote to [56] below. [31] CAP thus proposed that the failure of Mrs Hurley's symptoms to settle was likely explicable on account repetitive extringent impingement over time, the accident being but an aggravating feature, [32] Turning to Mr Chin's advices CAP briefly discussed the nature and purpose of the surgery before turning to the age and circumstances of Mrs Hurley. Here it suggested that the level of her pre-accident activities could have contributed to repetitive impingement and bursal changes over time. [33] CAP's last observation was that there was no support in the literature for the Chin/Swan assertion that single episode trauma could cause a bursa to become pathological. [34] Thus CAP reverted to its original assessment - the one said to be supported by the literature - namely that the explanation for the pathological bursa was a combination of repetitive impingement, as well as tendon changes, over time. Case for Mrs Hurley [35] Mr Sara accepted that onus was on his client to show on the balance of probabilities that the surgery was not wholly or substantially required on account a gradual process or disease. [36] He submitted that a helpful case was Bretkelly where this was to be found; 11. It is clear from Mr Evison's request for funding surgery that the surgery was principally required to treat the subacromial bursitis, and I find that the interpretation to be placed on the advice given by Mr Evison in his report of 1 May 2009 was that the subacromial bursitis was caused by the violent reaching of his arm during karate. Bursitis is a medical condition of inflammation of the bursa and is certainly not a condition which arises from degenerative cause, although it is equally the case that in the area where the bursitis occurred there was pre-existing glenohumeral degeneration, [37] It was Mr Sara's simple submission that on the basis, particularly, of the Swan evidence Mrs Hurley had made out her case so that her appeal should be allowed. 5 Bretkelly v ACC [2011] NZACC 137. Case for Corporation [38] Mr Hunt's submission was that at issue was whether the appellant could establish on the balance of probabilities that the surgery undertaken was required to treat a medical condition caused by injury as opposed to being required to treat a pre-existing condition rendered symptomatic by that injury. One might reasonably say that this was to rehearse Mr Sara's identification of the issue - albeit in different words. [39] It was the Corporation's submission that the crucial to Mrs Hurley's argument views of Mr Swan had been carefully and thoroughly addressed by CAP the membership of which on the occasion here in question had included an orthopaedic specialist, a general surgeon and a specialist in sports medicine. [40] Mr Hunt submitted that Mr Swan had "no research base" for his conclusions and that Mr Chin's views were primarily based on, thus simply referred to, what was found at surgery. [41] His (Mr Chin's) were "isolated" views in the sense that they did not include any apparent consideration of the other medical evidence on each side of the case or disclose any apparent knowledge of the lifestyle of Mrs Hurley before her accident. [42] Mr Hunt, in his written materials, had incorporated this: 36. Significantly, neither Mr Swan nor Mr Chin cite any literature to support the view that a single episode event of trauma could cause the pathology to the bursa identified in this case. In the case of Mr Swan, who had the opportunity to do so in providing his report dated 14 March 2010 the omission is inexplicable, In the case of Mr Chin it is unclear whether he was ever provided with the contrary medical opinions and asked to comment upon them. Whatever the reason absent engagement by him with that contrary medical opinion his analysis and opinion is less persuasive than it would have been had he done so. [43] The follow up oral submission of Mr Hunt was that the views of Mr Swan were simply a response to Mr Sara's instructions and those of Mr Chin born simply of the surgical findings. [44] Thus, so Mr Hunt submitted, the evidence did not establish that the treatment undertaken was necessary to treat a covered personal injury or indeed any such identifiable as having been caused (or significantly contributed to) by the accident. Discussion [45] I first revert to Mrs Hurley's description of her accident. That is referred to in more detail at [24] above but it will suffice here to note the essence of that description which was that: .. she tripped over the garden hose (and) took the brunt of the fall on her right knee and right shoulder. The pain in both were sharp and immediate, ... After her accident she lost full function in her right arm ... before her fall ... she had no problems with her shoulder (and was) a physically fit and active person ... 46] The medical evidence discloses a suggestion early on that Mrs Hurley's acromion was hooked . However when Mr Swan came into the picture he found no radiological evidence of that and the absence of that (a generally to be recognised as associated with rotator cuff pathology phenomenon) in any significant measure was confirmed by the operating surgeon Mr Chin. [47] Mr Swan (who obviously has a particularly specialised knowledge and experience in shoulder disorders) proceeded in what impressed me as a careful and analytical fashion to the conclusion that Mrs Hurley had what could be described as a secondary impingement syndrome on account the damaged subacromial bursa over the supraspinatus tendon impinging against the coraco-acromial arch. [48] In reaching that conclusion he obviously (and rightly) paid particular attention in the first instance to the mechanics of the accident as they had been described by Mrs Hurley. He also counted as of significance (in the overall scheme of things) the fact that she had been completely asymptomatic prior to the accident. And there was, as he saw it, an absence of any recognised pathological condition of the shoulder such as might qualify for a "gradual process" label. That had caught the attention of the Elective Surgery Adviser - see [7] above. [49] When responding to the original CAP report of 26 February 2010 he had first made the point that his diagnosis and assessment were based: ... on a careful history taken personally from the patient, my own clinical examination of both the patient and the imaging studies ... (In other words, his had been an holistic assessment.) [50] On the other hand it was his (obviously carefully weighed) assertion that CAP's argument: ... (was) based entirely on the reported finding of a small area of thickening of the subacromial bursa overlying the supraspinatus tendon, tendons themselves found to be entirely normal on ultrasound examination. [51] Then proposing that the only remaining factor in CAP's argument was what he described as the isolated finding of a small area of bursal thickening overlying the supraspinatus tendon and whether this represented a degenerative or a traumatic lesion, Mr Swan proceeded to respond in the terms which I summarised at [22] above, which summary I would incorporate in this discussion as if here rehearsed. [52] Mr Chin's report has been referred to more than once already, Mr Hunt may have been right when he said that it was written principally in terms of his operative findings', However what it seems to the Court matters is that those findings indicate that in pretty well every respect Mrs Hurley's shoulder joint had demonstrated appearances of normality. [53] His (directly involved in the surgery based) opinion was that the bursitis was most likely to have been traumatic in origin - a statement not left baldly to stand on its own but explained in what he then added - see [26] above. [54] Revisiting the original CAP report this (as I remarked earlier) incorporated extensive references to literature which references the Court has considered more than once, Having done so the difficulty the Court finds itself facing is that those references appear to touch upon or cover a range of shoulder change issues which, He may well have been unaware of her vigorous lifestyle but see in that respect my footnote at [26] above. however, are not clearly and persuasively identified as necessarily pertinent to (let alone potentially determinative of) what actually happened here. [55] In particular the Court has been unable to identify from what CAP reported clear lines of support for the proposition that, contrary to the opinion of Mr Swan, Mrs Hurley's surgery dictating problems were wholly, or at least substantially, a reflection of a degenerative process in the shoulder's subacromial space that had arisen over a much longer period of times [56] CAP of course had had the opportunity to respond to Mr Swan's analysis of the original report and this was when, as I noted earlier, it rather enigmatically said that "the absence of evidence is not evidence of absence"" [57] In the end I have been left with the impression that, with all due respect, the CAP responses have not only been overly generalised but also significantly speculative - that rather than clearly and obviously in all relevant respects focussed on the particular case at hand, that of Mrs Hurley. [58] In that state of affairs it seems to me not to matter in any significant sense that Mr Swan relied on his knowledge and experience rather than a swathe of wide ranging literature - for he appears to me to have carefully and conscientiously put his knowledge and experience to work on the very circumstances of this case. And that makes what he has said all the more persuasive. Particularly when that turned out to be consistent with what Mr Chin found, or rather did not find. [59] In the end, and for the reasons I have sought briefly to explain, I reach the conclusion that Mrs Hurley has established on the balance of probabilities that the surgery undertaken was required to treat a medical condition caused by the 28 September 2008 injury as opposed to required to treat a pre-existing condition rendered symptomatic by that injury. In other and briefer words, I hold that Mrs Hurley's case surmounts the s 26(2) hurdle. This observation is merely factual. It does not involve the Court being of the view that there was some onus on the Corporation. In point of law of course the onus lies the other way. That expression is one attributed to Dr Carl Sagan although, reportedly, he protested that his use of it was misunderstood. It perhaps sits more comfortably in a debate about the existence of a deity. It has been picked undone by wise others, utilising Bayes' Theorem, The short point is that it does not assist the Court. Result [60] The appeal is therefore allowed. The review decision is quashed and with that falls the Corporation's determination initially brought in question. [61] It will now be for the Corporation to ensure that Mrs Hurley gets the benefit of such entitlements as she has heretofore missed out on on account the Corporation's determination of 29 April 2009, Roderick Joyce QC District Court Judge ACR 249-10.doc (aw)