Toomey v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2013] NZACC 204 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act Appeal No. ACR 708/12) BETWEEN PETER TOOMEY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 13 June 2013 Appearances: Ms A B Brown for appellant Ms H A Hedley for respondent Judgment: 10 July 2013 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This is an appeal against a decision of the respondent declining an application for the cost of treatment of a supraspinatus tendon tear. [2] Mr Toomey had a right shoulder in jury which had been covered by ACC. In the course of his physical rehabilitation, he undertook physiotherapy including lifting light weights. On 11 February 201 1 he was lifting a 3 or 4 kg weight above his head with his left hand, when he felt pain in his left shoulder. [3] He notified his physiotherapist, Ms Sutherland, on 23 February. She lodged an ACC cover claim. She also recorded that he had a restricted range of motion in his left shoulder, altered scapulohumeral rhythm, reduced strength into abduction, flexion and external rotation, and experienced 7/10 pain over the anterior aspect of his left shoulder when using tools. The physiotherapist noted that he had been lifting a 3 kg weight when the pain started. In the claim form it was described as a 4 kg weight. [4] On 3 February 2011 Mr Toomey had an ultrasound scan that was reported as follows: "There is a tear of supraspinatus close to its insertion. This is localised and runs diagonally through the tendon. It may be partial or full thickness. The remaining tendons of the rotator cuff appear intact. A little fluid is seen around the tendon of long head of biceps. Lack of abduction prevents assessment of impingement." [5] Mr Toomey was seen by Mr Fred Phillips, orthopaedic surgeon. Mr Phillips noted on 12 April 2011 that the shoulder was making good progress but he needed to continue his physiotherapy. Mr Phillips had been involved in treating the appellant's right shoulder, for which he had an operation on 8 July 2011 when his right supraspinatus tendon was repaired. [6] An MRI of the left shoulder was done on 18 August 2011. The MRI report described a "Focal partial thickness > 50% width instrasubstance tear anterior supraspinatus 9mm diameter ...". It also recorded that there was "moderate ACJ arthropathy". [7] An application for ACC funding for arthroscopy and rotator cuff repair was made by orthopaedic surgeon Ilia Elkinson. The application was first made on 23 September 2011. Unfortunately Mr Elkinson confused Mr Toomey's claim with another injury (possibly the other shoulder) and described a fall while working as an electrician at a construction site. The error was corrected in a second Assessment Report and Treatment Plan (ARTP) dated 14 October 2011. [8] In that ARTP, Mr Elkinson reported that Mr Toomey had been lifting weights which were quite heavy. The respondent points to the fact that the weight was either 3 or 4 kilograms, in neither case very heavy. That is a key factor bearing on the question whether the appellant already had a damaged supraspinatus tendon that would not support lifting a relative light load. [9] Mr Elkinson reported that Mr Toomey experienced pain and was unable to perform the exercise the following day, because of pain radiating down the anterolateral aspect of his arm. He associated the pain with overhead activities and some weakness. He also experience some painful crepitus and clicking. Mr Elkinson reported that impingement tests were markedly positive. He noted an ultrasound scan: "Ultrasound scan left shoulder dated 23 February 2011 demonstrated a supraspinatus tendon tear, MRI scan of the left shoulder from 18 August 2011 confirmed a high grade supraspinatus tendon tear which is insertional. There is extension of the tear into the articular side of the tendon. There is no evidence of glenohumeral osterearthritis. There was some associated acromioclavicular joint arthropathy which had been reported. The patient does not have any pain associated with that." [10] The respondent asked for an opinion from its Clinical Advisory Panel and advice was given by Dr Been Cheesman as follows: "The accident mechanism lifting a 3 or 4kg weight would not seem sufficient to cause the pathology for which surgery is requested. Limited imaging has been provided. There is insufficient evidence to establish a causal link between the pathology identified and the supraspinatus tear. It would not seem likely that the event described would cause this but could render this symptomatic. If further information were provided this could be considered." [1 1] This advice was based mainly on the mechanics of the accident and lack of sufficient force to cause a tear. ACC then declined funding in a decision on 8 December 2011. [12] Mr Toomey's operation went ahead on 16 March 2013 and Mr Elkinson's operation note was as follows: "Examination of the glenohumeral joint revealed Outerbridge 1/2 changes within the glenoid suggestive of early osteoarthritis. The long head of biceps tendon was not tendinopathic and the anchor into the superior labrum was intact. There was a flap of the superior labrum which appeared to be loose and was debrided with a shaver. There was also a degenerative looking anterior inferior labial tear which did not have to be repaired. The humeral head was free of arthritis. There was marked hyperaemic injection of the rotator cuff especially anteriorly where there was a complex insertional tear of the supraspinatus tendon. The tear was probed through a lateral working portal which was established shortly after with a needle." [13] The primary finding at surgery that is relevant to this claim was a complex insertional tear of the supraspinatus tendon, confirming the radiological findings. [14] Mr Elkinson then wrote to John Miller Law and noted that Mr Toomey's private insurer had funded surgery. Implicitly, the funding was subject to ACC liability. Mr Elkinson advised that the surgery went well and intraoperative findings confirmed the presence of an insertional anterior supraspinatus tendon tear, which was nearly full thickness. There was no evidence of any pre-existing osteoarthritis, calcification or undue inflammation of the tendon to suggest Mr Toomey had been suffering from any sort of pre-existing inflammatory-type condition of the shoulder. On the question of a causal link, Mr Elkinson wrote: "In my professional opinion, there is absolutely a causal link between Mr Toomey's condition requiring surgery and his accident on 11 February 2011. Mr Toomey had never had any previous problems with his shoulder, nor has he any history of an overuse syndrome. He had his right rotator cuff repaired and was simply undergoing a strengthening programme at the gym. He lifted a 3- or 4-kg dumbbell and experienced pain in his left shoulder. He was subsequently diagnosed with a rotator cuff tear. In the absence of previous pain or restriction of motion, I have no reason to suspect that Mr Toomey suffered from any kind of pre-existing condition. The intraoperative findings confirm that the tendon was not tendinopathic and was not retracted. The tendon tear was an insertional, traumatic-type, partial- thickness tear with some propagation. This represented an acute traumatic tear." [15] In answer to a question whether there was any relevant gradual process, Mr Elkinson noted that Mr Toomey did not suffer from any form of pre-existing health condition affecting his left shoulder. He also said that he did not consider Mr Toomey's condition to be on a background of a gradual process or a degenerative condition. [16] Concerning Dr Cheesman's opinion, Mr Elkinson said: "... Dr Cheeseman did not refer to the fact that the patient had been investigated with an ultrasound and an MRI scan of the left shoulder. MRI scan is the most sensitive and specific test to diagnose a rotator cuff pathology, acuteness of the injury and evidence of chronicity. I agree that an x-ray would have been helpful as part of the preoperative workup, but on the balance of evidence this would not make a difference in terms of establishing whether Mr Toomey's rotator cuff tear was chronic or acute. There was no evidence of chronicity of his rotator cuff tear. In my opinion, there is a very clear causal relationship between lifting a 3- to 4-kg dumbbell above horizontal and what we found preoperatively on the ultrasound scan and MRI scan as well as the intraoperative findings." [17] A review hearing was held on 10 August 2012. Two days before the hearing, a further Panel opinion was given by Dr Michael Austen, an ACC medical advisor. Dr Austen drew attention to abnormalities mentioned in the operation notes, namely: "a. There was a flap of superior labrum which appeared to be loose...' b. 'There was also a degenerative looking anterior inferior labral tear c. "... Outerbridge 1/2 changes within the glenoid, suggestive of early osteoarthritis' d. "... where there was a complex insertional tear of the supraspinatus tendon."" [18] Dr Austen considered that the tendon tear should be regarded in the context of a number of other co-existing pathologies that strongly suggest a predominantly degenerative condition to the shoulder. He noted that the known prevalence of asymptomatic degenerative rotator cuff tears in the appellant's demographic probably approaches 20-50%; and that 60-80% of partial thickness tears progress to full thickness tears as part of their natural history without the need for an accident within 2-3 years, while 50% of asymptomatic full thickness tears will become symptomatic within 2-3 years without the need for an accident to cause this. [19] This general statistical information predicts that a person of Mr Toomey's age could have an asymptomatic tear that would be likely to become a full thickness tear, but could easily remain asymptomatic for two or three years. [20] In critiquing Mr Elkinson's opinion, Dr Austen noted that Mr Elkinson had said there was no evidence of pre-existing arthritis, but his own operation report indicated otherwise. Concerning the divergence between the force of the incident and the supraspinatus tendon tear, Dr Austen wrote: "The mechanism of injury described is of a controlled activity using a relatively light weight. It should be noted that this injury occurred as part of a rehabilitation programme that the client was doing for the contralateral shoulder in other words it was a clinically appropriate weight to be used in the shoulder. The ultimate tensile strength of the supraspinatus is close to 80ON. Lifting this weight would involve activation of the rotator cuff but with the light weight and the controlled activity taking place it is impossible to injure a normal rotator tendon thus the only conclusion that can be drawn is that the tendon was already torn and abnormal (has pre-existing disease in it) prior the described injury. This assertion is supported by the intra- operative findings." [21] Dr Austen's opinion was that it was not only unlikely, but impossible, for the exercise to have injured a normal rotator tendon. That is a plausible opinion from a common sense assessment of shoulder strain, and the medical view is one that carries conviction. No sudden force was described in relation to the precipitating event and it is puzzling that a serious rotator cuff injury should have occurred unless there was already a weakness, specifically a partial or full thickness supraspinatus tendon tear. Such a tear could easily have been present without symptoms, according to Dr Austen's opinion. [22] Dr Austen made these further points: a) In the event of an acute tear, the ultrasound should have identified blood and debris. He explained the fluid seen on MRI as associated with impingement. (b) The operative findings noted absence of tendinopathy in the bicep, but did not make the same comment concerning other tendons. However he also commented that tendinopathy, being internal, would not have been visible. (c) Acromioclavicular joint findings are consistent with a chronic condition affecting the shoulder and consistent with subacromial impingement. In his opinion, lifting a 4 kg weight would still have been insufficient to disrupt the tendon, but repetitive compressive forces on the tendon would explain why the tendon would wear through by impingement occurring for many years. (d) In summary: "In this opinion, on the balance of probabilities when considering all of the factors, it can only be concluded that the covered injury (of a controlled and low intensity nature) has rendered an underlying condition (of subacromial impingement/ rotator cuff tendonopathy and may well have contributed to the global degenerative changes seen in the shoulder at operation) symptomatic rather than having caused it." Review and submissions [23] At a review hearing on 10 August 2012 before Reviewer Mr R Woodhouse, Mr Toomey gave evidence. Amongst other things, he said that he had been building up his weight tolerance from 1 kg to 4 kg. When the incident occurred, the pain was so severe he had to stop immediately, and he had significant ongoing consequences. Mr Woodhouse found that Dr Austen made compelling points and that an opportunity had been given for Mr Elkinson to respond but he had decline. The Reviewer noted that Mr Elkinson had not addressed the question of other pathology in the shoulder being relevant to the cause of a tendon tear, which may have occurred gradually through repetitive compression. The review was accordingly dismissed. [24] The submissions by counsel in the appeal hearing followed that medical opinions and I have noted the substance of those submissions in traversing the background and medical opinions. Decision [25] Although Mr Elkinson advised that there was no reason to suspect that the appellant suffered from a pre-existing condition, it is very difficult to discount the Panel opinion that a normal tendon could not have been torn by lifting a 3 or 4 kilogram weight. [26] The appellant was aged 62 at the time of the injury. His rotator cuff would have sustained the usual wear commensurate with age, but he had no symptoms of tendon damage before the incident. The scans and operative observation did not specifically disclose supraspinatus tendon disease or degeneration. [27] While Mr Elkinson had first hand clinical knowledge of the appellant's shoulder problem, he did not give a cogent medical explanation of the way in which the lifting incident, on its own, could have caused the tendon tear. It is eminently plausible that the appellant had undiagnosed rotator cuff degeneration with impingement causing wear to the tendon. That was Dr Austen's opinion and in the context of the evidence it seems to me to be the most plausible and probably correct assessment. Although Dr Austen's opinion was based on statistical occurrence of asymptomatic rotator cuff disease, it is a convincing explanation in the present case, in which the claim of an acute tear is inherently difficult to understand. [28] The evidence tends shows on balance that the appellant probably had a deteriorating left supraspinatus tendon through a process of impingement, and that the incident in February 2010 was either the final straw, disrupting the tendon, or disturbed the rotator cuff causing acute and persevering symptoms. [29] I accept that the lifting incident did cause some "injury" in the sense of a sprain or strain. The appellant's cover goes that far, but the question for entitlement for treatment is whether the injury was a significant tear, and whether the tear (if there was one) was caused wholly or substantially by underlying rotator cuff disease or gradual process. There is an exclusion in s 26 for injury caused in that way. [30] The deciding factor in this case is that the evidence of the lifting incident described stress of such an ordinary kind, that it would have been unlikely to have torn a healthy supraspinatus tendon, and was even unlikely to have torn a compromised tendon unless the worn condition of the tendon was itself the whole or substantial cause of the final tear. That is the conclusion that I reach on the balance of probabilities. [31] For those reasons the appeal is now dismissed. Judge D A Ongley District Court Judge