Westend v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 144 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN PETER ADRIAN WESTEND of Kerikeri Appellant (Appeal No. DCA 497/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WHANGAREI on the 25th day of May 1999 APPEARANCE/COUNSEL Appellant in person D Tui for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to surgical assistance for a total right knee replacement as a result of an injury which occurred while at golf on 13 November 1989. The appellant originally came to the notice of the respondent in December 1996 when he lodged a claim for cover and medical expenses for an injury sustained to his right knee on 5 December 1996 when he stepped off his tractor and twisted the knee. His 2 general practitioner, Dr Palmer, diagnosed the problem as a right knee strain for which the respondent granted cover and made some payment towards transport expenses. In March 1998 the appellant then applied for assistance for a total right knee replacement to be undertaken by his orthopaedic surgeon, Mr Peters. The respondent requested Dr Palmer to provide information regarding the appellant's right knee injury with the result that on 7 May 1998 Dr Palmer provided the respondent with four reports from Mr Peters dated respectively 8 May 1995, 17 December 1996, 13 June 1997 and 17 March 1998. Those reports indicated knee problems from about May 1995. In his report of 17 December 1996 Mr Peters told Dr Palmer that the appellant was making satisfactory progress but "unfortunately about two or three weeks ago he had a nasty twisting injury when he got off his tractor". He later said "I think his progress is reasonable taking into account the amount of degenerative change we know is present in the knee" . The respondent then requested further information from Dr Palmer regarding the appellant's knee problems. Dr Palmer replied on 21 May 1998: "According to my records this patient presented on 16 November 1989 giving a history of having injured his right knee whilst playing golf. Because the symptoms did not settle he was again reviewed on 20 December 1989 and then referred to an orthopaedic surgeon for further management" Included in the medical reports Mr Peters' report of 24 April 1990 recorded minor degenerative changes to the right knee which required an arthroscopy. The radiologist report of 20 December 1989 to Dr Palmer noted in relation to the right knee: Minor degenerative lipping on the knee joint margins indicates that early osteoarthritis is developing No other abnormality seen." On 12 June 1990 Mr Peters reported to the respondent that the appellant had undergone an arthroscopy and removal of loose body from the right knee on the 12 June 1990. In that report Mr Peters stated: "There was quite widespread degenerative changes in the patellofemoral joint both on the femoral groove and the adjacent patella surface." As a result of receiving that information the respondent notified the appellant that the requirement for a knee replacement was due to pre-existing disease rather than the accident at golf. 3 When that decision was issued Dr Palmer notified the respondent that he considered the appellant's problems related to the injury of 1989 and confirmed that the appellant had been attending his practice since 1985. Dr Palmer said that from 1985 until 1989 the appellant had not presented with a right knee problem and that his first attendance in that regard was on 16 November 1989, three days after he had suffered the golf injury. The appellant applied for a review of the respondent's decision and in doing so submitted a further report from Mr Peters dated 30 July 1998 in which he considered that the appellant's knee had continued to deteriorate and that it was his opinion that the "injury was the predominant cause of his current situation". The review officer concluded that on the basis of the medical evidence the appellant was suffering degenerative problems prior to the accident in November 1989 and that the decision of the respondent was therefore correct. The appellant has appealed against that decision. After the appeal was lodged the respondent submitted the medical records to Mr D Mills, an orthopaedic surgeon, whose report the Court accepted in evidence. The report is dated 8 April 1999 and states: " I have read your letter dated 17/3/99 and the copies of letters written by Mr Ian Peters dated 20/11/98 and 30/7/98. I have also read a copy of an operation note dated 12/6/90 and a memorandum from Helen Spearpoint, Claims Manager, ACC, Whangarei, dated 8/6/98. I have also read a copy of a letter written by Dr Robin Palmer dated 22/7/98. You state in your letter of 17/3/99 that 'I would appreciate it if you could review the enclosed medical evidence and offer your opinion as to whether you consider that the need for the knee replacement has arisen from the accident in 1989 as opposed to the progression of the pre-accident changes.' I would comment. 1. I have been unable to ascertain the nature and severity of the injury which is stated to have occurred on 13/11/89 while Mr Westend was playing golf. 2. It is stated that xrays of Mr Westend's right knee dated 20/12/89 (i.e. taken some 5 weeks following the stated accident) are reported as demonstrating 'minor degenerative lipping on the knee joint margins indicating that early osteoarthritis is developing. No other abnormality is seen.' It is not stated as to whether weight bearing AP views in extension or at 40 of flexion has been obtained and certainly these extra views may well indicate a more severe degree of a degenerative arthritis than is appreciated in plain AP and lateral views of the knee taken with the patient not weight bearing. 3. It would seem from the operation note written by Mr Ian Peters and dated 12/6/90 that significant articular cartilage changes were present in the lateral compartment of the right knee at arthroscopy. Dr Peters describes 'the femoral condyle was also significantly irregular and worn with crevices. The tibial surface showed an area about a 5 cent piece size of bare bone exposed." Using the 4 grading system of Bauer and Jackson the described changes could be categorised as being type IV or type V. The 'extensive degenerative tear of the lateral meniscus involving most of the structure' would therefore appear to have been accompanied by significant degenerative changes in the lateral compartment of the left knee. Taking into account the relatively short period between the reported accident on 13/11/89 and the arthroscopy in June 1990 it would seem certain that the degenerative changes described by Mr Peters antedated the accident which was alleged to have occurred in November 1989. 4. It is unclear to me from Mr Peters report as to whether arthroscopic surgical treatment was offered save for the removal of the loose body in the left knee. Mr Peters does not specifically state that a partial meniscectomy was carried out and it would seem unlikely from the operation note that any surgical manoeuvre was offered in respect of the extensive tear of the lateral meniscus. 5. From the letter written by Dr R Palmer it would appear unlikely that Mr Westend had complained of knee symptoms in the 4 years prior to the alleged accident in November 1989. 6. Mr Peters, in his letter of 30/7/98, states that 'Following that injury he (Mr Westend) complained of tenderness effecting the joint combined with an effusion.' These clinical findings would tend to suggest an injury of some magnitude. 7 . The presence of a degenerative change should not preclude trauma as a cause for Mr Westend's continuing symptoms. It is recognised that an injury can aggravate temporarily or even cause permanent deterioration in a degenerative change. Following significant injury to a joint affected with degenerative joint disease, the joint may not return to the pre-injury level of function. The presence of degenerative joint disease in a knee must make that joint more vulnerable to injury. It is my opinion that the presence of degenerative joint disease at the time of Mr Westend's reported injury in November 1989 should not cause any claim to be necessarily disallowed. IN SUMMARY From the information at my disposal it would appear likely that Mr Westend has suffered an injury to his right knee of some magnitude leading to persisting swelling of the knee. It would appear certain that degenerative joint disease in the lateral and patello-femoral compartment of the right knee antedated the alleged accident in November 1989. In my opinion it is not possible to exclude a permanent deterioration in the condition of Mr Westend's right knee as a result of an injury which has caused a permanent aggravation of a pre-existing degenerative joint disease. 5 Taking these matters into consideration the need for a knee replacement may well have arisen as a result of the accident in 1989 which has led to a permanent aggravation of a pre-existing degenerative joint disease." The appellant submitted that the whole cause of his problem has been a series of injuries to his knee for which the respondent has previously granted him cover. He submitted that he was not surprised that the evidence disclosed degenerative changes some 7 months after prior surgery because of the series of accidents in which he had been involved. He submitted that both his doctor and his surgeon supported his case and that the Court should therefore follow their advice. Mr Tui submitted that the issue is whether the accident on 13 November 1989 at golf caused the appellant's knee problems for which he now requires surgery. Mr Tui referred me to the decision in Bell (105/97). In that case the Court held that while that appellant had suffered a fall and was thereafter handicapped, the medical evidence disclosed serious degeneration which pre-existed the fall and was brought to light by the fall and was the substantial cause of her ongoing problems. The Court therefore confirmed the decision of the respondent that that appellant was not entitled to cover under the Act because her ongoing problem were substantially caused by the degeneration and were not caused by the fall. Mr Tui submitted that while both Dr Palmer and Mr Peters consider that the appellant is entitled to cover on the basis that his ongoing problems are to some extent related to the injury on 13 November 1989, the manner in which they have produced their opinions does not conform with the test required under s.10 of the Act. In support of that submission he referred to the fact that Dr Palmer on 22 July 1998 gave as his opinion that because the appellant had not complained of knee problems in the four years prior to the golfing injury and the symptoms followed that incident, the incident must have been the cause of the problem. He submitted that Mr Peters on 30 July 1998 was of the same opinion. Mr Tui submitted that the basis for their respective opinions was the premise that had the trauma not occurred then it was not likely that the appellant would have required a knee replacement. He submitted that that does not satisfy the test under s.10 of the Act. Mr Tui submitted that neither Mr Peters nor Dr Palmer considered the effect of the degenerative changes which pre-existed the accident. In so far as it applies to this appeal s.10 states: "10. General exclusions from cover - (1) For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by gradual process, disease, or infection is not covered by this Act unless it is - (a) Personal injury caused by gradual process, disease or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (6 ) Personal injury that is medical misadventure; or A consequence of personal injury or treatment for personal injury [covered by this Act]. (2) For the avoidance of doubt it is hereby declared that - 6 (a) Personal injury caused wholly or substantially by the ageing process; and (b ) Personal injury to teeth that is caused by the natural use of those teeth - is not covered by this Act." The issue therefore is whether the appellant's ongoing right knee problems, which necessitated the total knee replacement, are caused wholly or substantially by the ageing process. The medical evidence demonstrates that the arthroscopy undertaken by Mr Peters disclosed extensive degenerative changes which pre-existed the golfing injury. While the appellant attributes this to a series of accidents, that is not the issue before the Court. The issue which I have to decide is whether the golfing injury in 1989 is the cause of the appellant's ongoing problems. Section 10 of the Act expressly excludes claims for ongoing symptoms which are wholly or substantially caused by a pre-existing condition. The evidence in this case discloses that the appellant had a degenerative condition in his knee which pre-existed the golfing injury to his knee. In these circumstances I conclude that the opinion of Mr Mills must prevail because the degenerative change in the condition of the knee cannot be ascribed to that incident. While Mr Peters and Dr Palmer both held the view that the appellant's problems arose from a series of accidents, neither considered the issue of when the degenerative changes first appeared. It is quite clear from Mr Peter's report that when he performed the arthroscopy he found extensive degeneration which Mr Mills indicated could not have become so severe in the short period since the golfing accident and must have pre-dated it. While the review officer did not have the assistance of Mr Mill's report I agree with her decision. The appeal is dismissed. DATED at WELLINGTON this 11 th day of June 1999 A W Middleton District Court Judge Dca49798.doc(rd)