Smith v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HASTINGS [2013] NZACC 144 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PAUL SMITH (ACR 680/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HASTINGS on 1 May 2013 APPEARANCES Ms E Phillips, Advocate for Appellant. Ms S Churstain, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 7 June 2012, whereby it declined to grant the appellant weekly compensation on the basis that the medical condition causing his incapacity was not attributable to the personal injury he suffered to his left leg on 9 November 2011. [2] It should be identified that at the date of this injury event the appellant was already in receipt of weekly compensation for an injury to his right ankle causing an achilles tendon rupture. It was the case when that injury condition was resolved by surgery in March 2012 the appellant's ongoing injury to his left leg became the cause of his ongoing inability to resume his employment. It is also the case that the appellant underwent surgery described as left knee arthroscopy on 7 September 2012, and following that surgery he became capable of resuming his employment, so it is the 2 case that the claim for weekly compensation is for a specific period, and not a matter which still continues. [3] The background facts relevant to the issue in this appeal may be noted as follows: On 9 November 2011 the appellant, then aged 61 years, was visiting the local ACC office in relation to the injury to his right ankle. When he attempted to get up from the chair and putting his body weight on his left leg, he lost balance and fell twisting his left knee. . The appellant began to experience significant pain in his left knee and he was taken directly to Hawkes Bay Hospital for treatment. He was discharged later that same day. . The appellant thereafter received treatment from his GP, Dr English, but did not seek any further assessment of his condition. He was of course, at that time, still suffering from the covered injury to his right leg. It should be noted that the appellant received cover for his left knee injury condition, it being simply described as a left knee sprain. Following the surgery to treat the right leg injury, the appellant did seek to return to work but was unable to work more than three to four hours a day, and on 23 April 2012 he was forced to cease work altogether because of ongoing problems with his left knee. It was at that point that the appellant sought to obtain weekly compensation for his covered left knee injury, and because of the passage of time from the date of the accident to the date when compensation was sought, the respondent determined to obtain independent evidence on the issue of the appellant's claimed incapacity. On 22 May 2012 the appellant was seen and examined by Mr V S Pai, Orthopaedic Surgeon. After examining the appellant Mr Pai 3 considered that an MRI scan should be obtained before a determination could be made. On 25 May 2012 an MRI scan of the appellant's left knee was undertaken. On 31 May 2012 Mr Pai provided a further report following consideration of the MRI scan. Details of Mr Pai's report to the respondent will be stated later, but it is the case that his report was considered by the respondent's Branch Medical Advisor, Dr Stormer, and on the basis of his advice the respondent issued its decision of 7 June 2012 declining to grant the appellant weekly compensation. The reasoning given in the respondent's decision was as follows: We're unable to provide you with this support as the medical information received shows that your current condition is not the result of your personal injury of 09/11/2011. The medical report stated that "Mr Smith has extensive arthritis of the knee joint with articular cartilage loss. He also has meniscal changes which are degenerative." As such, your current incapacity is due to pre-existing arthritic changes in your left knee. The appellant sought a review of that decision and at that review hearing the Reviewer had the reports of Mr Pai and the appellant's GP, Dr English. . In a decision dated 3 October 2012 the Reviewer concluded that the medical evidence showed on balance that the accident event of November 2011 was part of an ongoing degenerative process, and therefore the respondent's decision to decline weekly compensation was confirmed. For the purposes of the appeal to this Court a further supplementary report has been produced from Mr Pai, and also a report from Mr S Andrews, Orthopaedic Surgeon. [4] The issue in this appeal is one wholly dependent upon the assessment of the medical evidence which has been produced to the Court and I note thatrelevant evidence to be as follows: 1. Report from Mr Pai, Orthopaedic Surgeon, dated 22 May 2012. Mr Pai had been requested by the respondent to examine the appellant and report to it. Mr Pai noted the following relevant medical conditions. He was tender over the mid medial joint line as well as anteromedial aspect of the left joint line There was effusion of the joint with a positive bulge test. There was evidence of synovial hypertrophy in the suprapatellar region. There was no varus or valgus test positive and cruciate test was negative. He had more grinding crepitus in the right knee, but there was some fine crepitus felt in the left knee. His comment at the end of this report was as follows: Considering his varus orientation with crepitus in both knees and his age, it is more than likely he has bilateral osteoarthritis. However, he was asymptomatic prior to twisting of his knee. The question is whether he has had a new injury or aggravated his arthritis. I have suggested MRI to differentiate these two. The outcome of arthroscopy meniscal surgery in an osteoarthritis knee is difficult to predict although surgery can still be done to see whether his instability symptoms can be improved. 2. Report from Dr H Bowmer, Radiologist, pertaining to MRI scan carried out on 25 May 2012. The findings from that scan were stated as follows: Comminuted fear of the posterior horn of the medial meniscus extending to superior and inferior surfaces. There is also bone oedema in the upper tibia anteromedially. Severe loss of the articular cartilage in the medial compartment on both tibial and femoral sides with a defect of at least 15 mm on the medial femoral condyle. The lateral meniscus is thin with an oblique tear of the posterior horn extending to the inferior surface. . There is a moderate effusion in the knee joint. Bony fragment anteriorly measuring 8 mm diameter is within the knee joint but not related to the anterior cruciate ligament. The cruciate and collateral ligaments are intact. Conclusion. Medial and lateral meniscal tears. Articular cartilage injury in the medial compartment. Bone effusion and loose body.. 3. Further report from Mr Pai dated 21 May 2012. This was Mr Pai's report after he had obtained details of the MRI scan. He commented as follows: 5 The MRI suggests gross articular cartilage loss consistent with moderate to severe arthritis."These changes are pre-existing and not related to the event of injury. He also has a complex tear of the posterior horn of the medial meniscus which in my degenerative tear. In my opinion, he was asymptomatic prior to the twisting event and the event of injury rendered it symptomatic. In a degenerative meniscus a tear can be found either spontaneously or can occur with any trivial injury. He then answered the following two questions: What is the nature of the index injury? With the findings of extensive arthritis, it is more than likely he had a degenerative meniscus which can tear either spontaneously or following the stated injury event. He had a twisting injury with knee in extension and such an injury event in a normal meniscus can cause a meniscal tear. On the balance of probabilities, in my opinion, it is more than likely he has a degenerative tear related to the event of Injury which occurred at the time of injury. Is the injury causing the client's current symptoms/incapacity? n my opinion, Mr Smith has extensive arthritis of the knee joint with articular cartilage loss. He also has meniscal changes which are degenerative. The injury stirred up his arthritis and also caused tear of the degenerative meniscus. The injury did not cause his arthritis but aggravated symptoms of arthritis. 4. Report from Dr R English, dated 29 July 2012 to appellant's Advocate. Dr English had copies of the relevant reports and he stated, inter alia, as follows: I must firstly confirm that I have been Paul's GP for 30 years, and during that time I cannot recall, and there is no record of, any symptoms related to his left knee. ... A comminuted medial meniscus tear has been confirmed on MRI. Therefore, there is evidence of an accident, sudden force causing damage to the meniscus, and no doubt then that accident compensation applies in this case. It is my humble opinion, that it is more certain than not that Mr Smith's accident in November when he lost balance, caused fresh damage to his meniscus, albeit superimposed upon pre-existing changes. My reasons are as above: There were no pre-existing symptoms; there was a clear accident involving force; the mechanism of injury is known to cause meniscal damage; a comminuted tear of the meniscus was confirmed on MRI> 5. Report from Dr S Andrews, Orthopaedic Surgeon, dated 7 September 2012. Dr Andrews carried out surgery described as left knee arthroscopy on 7 September and this was the report of his findings and where he noted as follows: 6 Patellofemoral joint grade 1 osteoarthritis changes, medial compartment grade III chondral changes on the femoral and tibial side. A complex tear of the posterior horn of the medial meniscus which was not frankly unstable and this was debrided to a stable rim. ACL intact. 6. Report from Mr Pai dated 15 September 2012. Mr Pai supplied this report following the surgery report. In this report he again referred to the circumstances of the injury event and where he stated as follows: ...A degenerative meniscus can tear easily and sometimes can tear spontaneously and the incidence of meniscal tears even in an asymptomatic population is as high as 63 % on MRI (refer to my attachment for evidence based literature). Therefore if getting out of a chair with weight taken on the other leg, which in my opinion is a normal activity, is considered as an injury event, then the tear occurred in a degenerative meniscus and should be considered as related to this event of standing up. ... With regard to meniscal tears, from an orthopaedic point of view, one should not conclude in the presence of a tear on MRI that it has to be injury related. From practical purposes, orthopedically there are two types of meniscal tear we see, one is a traumatic tear which is always seen in younger population, following a significant twist and the other is a degenerative tear which occurs in a degenerative meniscus with or without an event of injury. The complex or comminuted tears of the posterior horn is more commonly seen in a degenerative tear than a traumatic tear (refer to my attachment for evidence based literature). A degenerative tear by definition is a tear occurring in a degenerated meniscus rather than-a normal meniscus. There is no doubt whatsoever in my mind, considering Mr Smith's MRI findings that is the meniscus was degenerated prior to the stated event of standing up. 7. Report from Mr S Andrews, Orthopaedic Surgeon, dated 29 October 2012 to appellant's GP. This was a report from Mr Andrews as a follow-up to the surgery he had carried out. Paul has had excellent relief of his knee pain and locking symptoms following the surgery and tells me his knee is almost back to normal and he is keen to return to work at the freezing works. Paul has had a long assessment and review by ACC as to whether his accident resulted In his knee symptoms or whether this uncovered pain from his pre-existing arthritis Given that Paul's symptoms have completely resolved following surgical debridement of his posterior horn meniscal tear it is likely in this instance that this was the cause of his knee symptoms. . .. [5] In her submissions, Ms Phillips submitted that the evidence of Mr Andrews and Or English should be preferred to that of Mr Pai, as Mr Pai did not have information 7 relating to the fact that the appellant had had no problems with his left knee prior to the injury event, and further she commented on the fact that Mr Pai changed his understanding of the accident event and which was not correct and where the statement by Mr Pai that the mechanism of standing was a normal activity was not the correct nature of the injury event. [6] It was Ms Phillips' submission that the accident event caused the meniscal tear and that was the injury condition that required surgical treatment; it was the incapacitating feature. [7] Ms Churstain, Counsel for the Respondent, referred to the fact that the MRI scan showed significant damage or injury pre-existing and she referred to the reports of Mr Pai, who confirmed that the appellant's condition was one which pre-existed. She submitted that the appellant's meniscal tear was not the result of his accident event. DECISION [8] In this case there is no dispute that prior to the accident event of 9 November 2011, the appellant did have pre-existing conditions in his left knee and where the appellant had articular cartilage loss which was consistent with moderate to severe arthritis. In his report after noting the MRI scan Mr Pai stated that those conditions were the pre-existing conditions and he then referred to the fact of the medial meniscus suffering a degenerative tear of which he said was rendered symptomatic by the injury event. [9] In a further comment in that same report he stated that the injury stirred up his arthritis and it also caused the tear of the degenerative meniscus, and earlier on he had referred to the fact that an injury event in a normal meniscus can cause a meniscal tear, and that the tear occurred at the time of injury. [10] That state of affairs must be considered, I find, having regard to the appellant's pre-accident situation and where it is the case that Dr English, who had been the appellant's GP for 30 years, could not recall or record any symptoms being suffered by the appellant pertaining to his left knee. This, therefore, I find, means that as of the date of the accident the appellant may have had pre-existing conditions but they were in no way causing any physical limitations or injury conditions. It was on that basis that Dr English stated that because there was evidence of an accident that sudden force 8 caused damage to the meniscus and therefore the meniscus was torn in that accident event. [11] I note he commented that the appellant had no pre-existing symptoms, the accident event involved force, and the mechanism of injury is known to cause meniscal damage and the comminuted tear of the meniscus was identified in the MRI scan. [12] When the appellant underwent surgery for the medical conditions of his left knee, the surgeon identified the fact of a complex tear of the medial meniscus which was not unstable. [13] I have considered the reports of Mr Pai and find that as he finally stated his opinion on the basis that the accident event was just a normal activity rather than the twisting of the knee and the causing of considerable pain which had been asserted by the appellant, I find that the basing of his opinion on the fact that the appellant was suffering from a degenerative meniscus rather than a normal meniscus is not likely to have been the situation. [14] From a legal point of view, it is the case that where a pre-existing physical condition is rendered symptomatic by an accident event, that does not amount to a personal injury caused by accident and in such circumstances cover would not be granted, nor of course any right to entitlements. However, in the present case, I find it to be established on the balance of probabilities that the appellant was not suffering from any pre-existing meniscus tear and that it was that physical condition which . occurred in the injury event, and of course was the reason why the appellant began to experience significant pain, something which he had not previously experienced, with the pre-existing physical conditions which he had. [15] In finding that situation to be the case, I am also noting the statements made by Mr Pai, where he stated that the injury stirred up the appellant's arthritis and also caused the tear of the degenerative meniscus. That act of causing the fear is a separate and distinct physical injury to a pre-existing condition, and as such it gives rise to an entitlement to cover under the Act and for any other entitlements which that condition may allow and which, in the present case, caused the appellant to be physically unable to continue with his work until he had surgery to treat that physical injury condition. 9 [16] Accordingly, therefore, I find that the respondent was wrong to determine that the appellant did not have a right to weekly compensation and its decision to that-effect is hereby revoked, and substituted by this Court's decision that the appellant was entitled to weekly compensation for the period of his incapacity following the cessation of incapacity to his right leg in March 2012, following surgery for that injury, until the appellant had surgery for the left knee injury and was thereafter able to resume his pre injury work. [17] The appellant being successful, I allow costs to him in the sum of $3,000 together with any qualifying disbursements. DATED this 16" day of May 2013 M J Beattie District Court Judge