Ratima v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 215 199 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 RATIMA Appellant (Appeal No. DCA 71/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of June 1999 APPEARANCES Miss F Taylor - advocate for appellant Mr B A Corkill - counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cancel the appellant's ongoing entitlement under the Act on the grounds that his current disability and incapacity is as a consequence of degenerative osteoarthritis and not causally connected to the personal injury for which he had cover under the Act. Background 2 The appellant, now aged 50, was a shearer by occupation and on 18 December 1986 he suffered an injury to his left knee when it was twisted in the course of shearing. His knee became painful and swollen and he was unable to resume work as a shearer. He was referred to Mr R Azariah, Orthopaedic Surgeon and arthroscopic surgery was carried out on 1 July 1987. X-rays taken at that time showed that the appellant had degenerative changes affecting the medial and lateral compartments of the knee joint. It was then learnt that the appellant had in fact suffered a quite severe injury to that left knee in 1970. The details of that injury were that it was diagnosed as a rupture of the medial collateral ligament. That injury required surgery and he had a portion of the medial meniscus removed and the ligament repaired. The evidence from the appellant was that he recovered from that injury and continued an active lifestyle, including playing rugby. The appellant was assessed from time to time by various Orthopaedic Surgeons, including an assessment by Mr John Sullivan, Orthopaedic Surgeon, in April 1989 for the purposes of assessing lump sum entitlement. It was Mr Sullivan's opinion that the 1986 accident may well have exacerbated an already pre-existing problem. In April 1998 the respondent received a report from Dr Alan Doube, Consultant Rheumatologist who advised that the appellant suffered from generalised osteoarthritis as well as polyarticular gout. A second rheumatologist report from Dr M L Wong confirmed the appellant suffering from severe gout and that both knees were grossly osteoarthritis. In July 1998 the respondent received a further report Mr D E Allen, Orthopaedic Surgeon, in which he reviewed the appellant's history and his x-rays and he noted that his current disability was "gross degenerative changes in the left knee producing pain, swelling, weakness". It was Mr Allen's opinion that the current level of left knee degeneration was substantially a reflection of the 1970 injury. 3 It was on the basis of Mr Allen's advice that the respondent advised the appellant that his entitlements under the Act would cease. The - appellant sought a review of that decision and in his decision dated 11 December 1998 the Review Officer accepted the report of Mr Allen and of the fact that he attributed responsibility for the ongoing problems to the 1970 accident. He therefore confirmed the respondent's decision to cancel entitlement. For the purposes of appeal to this Court no further medical evidence was sought to be adduced by either party. Submissions Miss Taylor, advocate for the appellant, submitted that the appellant did have a permanent disability arising from the 1986 accident and that this had been assessed and determined by Mr Sullivan, Orthopaedic Surgeon, as being a disability of 11.25%. She further submitted that following the 1970 accident the appellant had resumed a normal active life, including playing rugby and working as a fulltime shearer. She pointed out that it was only as a consequence of the 1986 accident that the appellant has been unable to resume his normal lifestyle and activities. She further stated that whilst it was acknowledged that the 1970 accident did contribute to the incapacity, that could not be clearly identified to the exclusion of the 1986 accident and therefore the 1986 accident was still a contributing factor. Mr Corkill, counsel for the respondent, submitted that the medical evidence clearly establishes the appellant is suffering from degenerative arthritis in his knee and it is that which is causing his incapacity. He submitted that it is for the appellant to overcome the provisions of s. 10 of the Act. He submitted that the medical evidence established that the appellant had a marked degenerative osteoarthritis condition before the 1986 accident. Counsel submitted 4 that the onus was on the appellant to establish that the degenerative disease was as a result of personal injury in 1986 so as to being himself within the exception to the exclusion in s. 10(1)(c) of the Act. Counsel submits that the weight of evidence suggests that the arthritis is as a consequence of the 1970 injury. Furthermore counsel for the respondent submits that the evidence of Dr Wong and Dr Doube as to the appellant's gout and it being a causative factor again establishes that his osteoarthritis is from disease and not from the trauma of the 1986 injury. Decision The issues for determination in this appeal require careful consideration of the medical evidence. That evidence has been referred to in outline in the background narrative set out earlier in this decision. Apart from the contemporaneous reports from Mr Azariah and Mr Sullivan made in 1987 there is the very helpful report of Mr R V Jackson, Orthopaedic Surgeon, of 5 September 1994 prepared at the request of the respondent. The purpose of that report was to advise the respondent what prospects the appellant may have for getting back to the workforce. However in the course of his examination and preparation for the report Mr Jackson had the benefit of the previous reports of Mr Azariah and Mr Sullivan and he also had the benefit of Mr Azariah's notes (Mr Azariah by now being deceased) relating to the first injury in 1970. It was Mr Azariah who carried out the surgery on the appellant's left knee in 1970. In the course of his report Mr Jackson stated as follows: 'On reviewing Mr Azariah's notes I think it important to state that this man initially injured his left knee in an accident when he was working as Bushman in 1970. He was admitted to Te Kuiti Hospital. He was diagnosed as having a rupture of the medial collateral ligament. It would appear he had portion of the medial meniscus removed and a repair of the ligament at that stage followed by a period of immobilisation in a POP case for some eight weeks and he was then mobilised. From examination 5 of Mr Azariah's notes at his rooms it would appear that the knee joint stabilised reasonably well following this procedure. However it would also appear he had a further injury to the knee at a later stage and this is the - -one for which a claim has been made to ACC. Without a full assessment of the knee prior to the more recent injury in 1986 it is absolutely impossible to state just exactly how much ligament instability was present following his 1970 accident. Similarly referral to Mr R Azariah's notes would again suggest he injured his right knee at rugby football on 29.7.79. He appears to have strained the medial collateral ligament at that stage, he was treated conservatively with the application of a plaster cylinder and then followed up with physiotherapy and the ligament was said to have stabilised well. X-RAYS Reports of Xrays and his films from Te Kuiti Hospital were available for viewing. Initially Xrays showed no particular boney abnormality in the knee joints and further films taken after the 1970 injury again showed no abnormality for some years. However I note when he was examined by myself in 1990 Xray review suggested that in 1984 he had quite marked degenerative change in the medial and lateral compartments of his left knee, further films were taken in 1987, these again showed the presence of degenerative change in the knee joint. As a check further Xrays were taken today and these confirm that he now has severe degenerative change in both compartments of his left knee and degenerative changes also present, largely in the medial compartment of his right knee. OPINION It is obvious that Mr Ratima sustained a moderately severe injury to his right knee, (he did have other injuries as well in 1970). He underwent 6 medial collateral ligament repair by Mr Azariah and also portion of the medial meniscus was removed. Although there is no comment in the notes as to the point, I strongly suspect he also damaged the anterior - cruciate ligament at that stage. He appears however to have made a good recovery following appropriate treatment. However he has since represented, he has undergone arthroscopy in 1987 by Mr R Azariah, it was noted he had degenerative change on the medial and lateral femoral condyles, that the anterior cruciate ligament was virtually completely ruptured and it was also noted clinically that he had substantial laxity in the medial collateral ligament of the knee. ..." In June 1998 the appellant was examined by Mr D E Allen, Orthopaedic Surgeon, at the request of the respondent. It is noted that Mr Allen had first examined the appellant in 1997 at the request of the appellant's GP in relation to further treatment and possible surgery for knee replacement. Mr Allen was posed certain questions by the respondent and these and the answers are as follows: "1 . 'What is the claimants current disability in general and in relation to the left knee'- Gross degenerative changes in the left knee producing pain, swelling, weakness, and the pain is both activity related pain and rest pain. 2. 'Is the disability in the left knee due to the accidents on 18 December 1986 and/or the injury in 1970'- Yes. (in follow-up clarification to that answer Mr Allen was asked "do you mean that the disability in the left knee is due to both injuries, 1970 and 1986 or the 1970 injury alone?" to which Mr Allen replied 7 "in my opinion the left knee disability is a reflection of the 1970 injury". - -3. .'If the 1986 injury had not occurred would the injury in 1970 alone have resulted in the current level of left knee degeneration'- Mr Jackson describes quite marked degenerative changes in the medial and lateral compartments of the left knee in X-rays taken in 1984. From the evidence available, it would appear that the current level of left knee degenerative change is substantially a reflection of the 1970 injury. 4. 'Given the claimants widespread osteoarthritis would the claimant have developed his current left knee disability without the injuries in 1970 and 1986'- No. 5. "'What are the claimants current limitations/work restrictions' - Mr Ratima is limited by:- A. Gross degenerative changes in the left knee and severe degenrative changes in the right knee. B. Peripheral joint problems involving in particular the fingers, elbows and right ankle, considered by a Rheumatologist to be a reflection of gout. Mr Ratima would be very restricted in the type of work he could do. This would need to be predominantly sedentary work, yet even this 8 level of work would have to take into account the joint involvement in the fingers and elbows. --6: -'What are the limitations/work restrictions due to the left knee disability' - The left knee problem, in itself, would prevent Mr Ratima from engaging in moderate to heavy physical work, work that involved a lot of walking, walking on uneven ground, jumping, a lot of ladder work, or stair work, etc. In my opinion the degree of degenerative change would certainly preclude Mr Ratima from considering working as a shearer. 7. 'What is the prognosis in general for this claimant and for the left knee alone' - In my opinion Mr Ratima will require bilateral knee replacement. Right knee replacement has been scheduled for the 20th July. Prognosis in terms of the other peripheral joint problems considered to be gout would be best left to the Rheumatologist who made the diagnosis, but I suspect there will be a gradual deterioration of these other peripheral joints as time goes on. 8. 'What future investigations/treatment would you recommend' - Bilateral total knee replacement. Right knee replacement is scheduled for the 20th July. 9 In relation to the other peripheral joint problems, regular monitoring by Mr Ratima's General Practitioner, and Mr Ratima's General Practitioner may feel, from time to time, further rheumatological -. .-. .opinion could be advantageous." In his report of April 1989 Mr Sullivan, Orthopaedic Surgeon, gave an assessment of the appellant's disability and in the course of that report he mentions that he considered the appellant to have clinical gout and that this also bears some relationship on the degeneration seen in his knee. The question of gout being a factor was referred to two separate Rheumatologists, Dr M L Wong and Dr A Doube. Dr Wong noted that both the appellant's knees were grossly osteoarthritis and that he did display symptoms of severe gout. He stated that gout of this severity is known to cause osteoarthritis changes in the absence of any significant injury. Whilst he identified the factor of gout and of its potential causative effect, he simply stated that it was therefore debatable how much the previously diagnosed injuries contributed to the present state of his knees. Dr Doube examined the appellant and came to the view that he had generalised arthritis and he too considered that he displayed symptoms of polyarticular gout but he did not consider the gout to be playing a significant role in the degenerative changes in the knee. It was his opinion that his left knee had post-traumatic osteoarthritis and that this was the major cause of his current disability. It is to be noted that Dr Doube did not venture which trauma was the causative trauma. Despite the fact that the appellant appears to have been able to lead a full and active life until the 1986 accident, the medical evidence is that at the time of this accident he was suffering from quite severe arthritic degenerative change to his left knee and that this degenerative change has continued apace since that twisting injury. It is the arthritic condition which is the disabling factor and Mr Allen has assessed it as being substantially a reflection of the 1970 injury. By the process of elimination therefore, it must be concluded that any degenerative effects of the 1986 injury are insubstantial by comparison. Whilst some medical opinion has recognised that it is 10 not possible to be precise how much of his present condition is attributable solely to the 1986 accident, the evidence is that it is not substantial, rather it is insubstantial or not a factor at all. Mr Allen, Orthopaedic Surgeon, is the only specialist who has been requested to give his expert opinion on this very point and the other medical experts have simply given their assessment as part of a report that was in effect done or prepared for other purposes. The questions that were asked of Mr Allen are the questions that the Act requires an answer to when considering whether the appellant continues to have entitlements. The appellant has generalised osteoarthritis and also is severely restricted in his right knee from the same cause. Having regard to the opinion of Mr Allen I find that the appellant's present incapacity is attributable to causes other than the personal injury by accident which he suffered in 1986 and in terms of s.37A of the Act the appellant can no longer qualify for entitlements. At the same time it can also be said .. .... that the provisions of s. 10 of the Act apply and that the appellant's present condition is caused wholly or substantially by osteoarthritis which has been established as a consequence of personal injury not covered by this Act. For the foregoing reasons therefore the respondent's decision to cancel the appellant's ongoing entitlements under the Act was correct and this appeal is dismissed. DATED at Wellington this 6th day of August 1999 the M J Beattie District Court Judge DCA71-99.doc