Wood v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. [2011] NZACC 376 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN TIMOTHY JAMES WOOD (ACR 174/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at ROTORUA on 17 November 2011 APPEARANCES Mr T J Wood in person. Mr A D Barnett, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 June 2010, whereby it declined to agree to fund revision surgery for total hip replacement, on the grounds that such surgery was not for the purpose of treating a covered injury condition, but rather a pre-existing non-covered medical condition relating to the appellant's left hip. [2] The background facts relevant to the issue in this appeal may be stated as follows: . On 5 October 2009 the appellant, then aged 75 years, underwent left total hip replacement surgery at Grace Hospital, Tauranga. . That surgery was carried out by Mr Tony Lamberton, Orthopaedic Surgeon. 2 The reason for that surgery was the fact that the appellant had a severely arthritic hip. This medical condition was not a covered injury and ACC was not involved in any matters pertaining to that surgery. On 17 October 2009 the appellant was a spectator at a dancing contest. In the act of getting up from his chair, his shoe caught on the leg of the chair causing him to trip and fall heavily on his operated leg. This fall resulted in a posterior hip dislocation which required him being taken to hospital and undergoing surgery for relocation of the hip joint. The appellant sought and obtained cover from the respondent for the physical injury sustained in that fall, and the respondent met the costs of the hip relocation surgery. . On 21 November 2009, 25 December 2009, and 17 April 2010, the appellant suffered further dislocation of his left hip and on each occasion remedial relocation surgery was required. Following the fourth dislocation on 17 April 2010 and its remedial treatment, Mr Lamberton made application to the respondent for the funding of a revision of left total hip joint replacement. The application was referred to the respondent's Clinical Advisory Panel (CAP) and it determined that there was no causal link between the medical condition requiring treatment and the covered injury event. On 22 June 2010 the respondent advised the appellant that it would not approve the funding of the elective surgery sought. . Mr Lamberton sought to have the respondent change its view and further medical information was provided and which was considered by the respondent's CAP. . In a letter dated 22 July 2010 the respondent advised that it was not going to alter its decision and that the request for funding for elective surgery remained declined. The remedial surgery was nevertheless carried out on 13 September 2010. . The appellant sought a review of the respondent's decision and a Review Hearing took place on 8 February 2011. In his decision of 1 March 2011, 3 the Reviewer accepted the CAP's view of the matter, namely that the ongoing instability of the respondent's hip was not related to the initial dislocation but rather to the initial hip replacement surgery itself. The respondent's decision was therefore confirmed. [3] As earlier noted, the reason for the initial hip replacement surgery was as a consequence of the appellant's severe osteoarthritis in his left hip, it being a degenerative condition and therefore was not a medical condition which could be covered by Accident Compensation legislation. [4] The situation regarding the appellant's left hip following the first dislocation on 17 October 2009, was stated by Mr Lamberton to be as follows: With total hip joint replacements, nothing holds the ball into the socket apart from the muscle tension. It is well known that in the act of a first time dislocation there is significant soft tissue injury and almost certainly the capsular repair and tendinous repair at surgery will be avulsed and pulled apart. This compromises the soft tissue envelope and predisposes to further dislocations. This doesn't always eventuate and this is the reason why remedial surgery is not undertaken in the first instance. [5] Following the fourth dislocation in April 2010, Mr Lamberton made application for approval of revision surgery to the left hip. In that application he stated, inter alia, as follows: At this stage it is untenable to proceed with further conservative management and revision surgery is indicated. Mr Wood is very keen to proceed with this as soon as possible. I have explained the reason or this today and that unfortunately with soft tissue attenuator revision surgery again is not entirely straightforward. The soft tissue tension is relied upon to hold the ball into the socket of the hip replacement. The soft tissues will have been damaged at surgery. One has to compensate by adjusting the prosthesis type and angle to try and obtain stability. This can be done by re-orientating the current components usually by adjusting the angle of tilt of the socket and angle of forward rotation. The axial rotation of the femoral component can also be adjusted. A longer neck length femoral heads can be obtained. My plan would be to have all the above options available together with the debridement of the hip and soft tissue clearance to ensure that there is no impingement present. [6] The comment from the respondent's CAP was as follows: Dislocation after hip arthroplasty is a recognised complication. The description of the incident is effectively a change in posture, getting out of a chair, suggesting that the problem is a technical one with the prosthesis and that the attitude of the femoral and acetabular components predisposes to dislocation and requires revision. The original arthroplasty was not supported by ACC. A causal link between the condition to be treated and the covered event is unlikely. [7] Mr Lamberton made a further comment in a letter to the respondent on 3 June 2010, and where he stated, inter alia, as follows: In Mr Wood's situation clearly further dislocations did eventuate. These have occurred with minimal provocation. These occurred on the 19" November 2009, 25" December 2009, and after seemingly stabilising once again, on 17" April 2010. I accept that the subsequent dislocations have all occurred with minimal provocation, and this is almost universally the case as the initial injury has resulted in a compromise of the hip stability by the significant soft tissue injury. It is my strong opinion that Mr Wood's initial traumatic incident on 17" October 2009 has ed to the current situation. There was clearly an external trauma involved with the heavy fall. I put it to you that incidents of similar magnitude which result in a meniscal tear of the uld be covered generally speaking by ACC without too much correspondence to be entered into. There is no doubt in my mind that this should be covered by ACC. [8] The respondent's CAP made further comment on 20 July 2010, as follows: A left total hip replacement was performed on 5 October 2009 using a posterior approach with an Exeter prosthesis On 17 October 2009 when getting up from a chair, the prosthesis dislocated requiring formal relocation at Tauranga hospital. Since then there has been ongoing hip instability. Since there is unlikely to be any maturity of healing less than two weeks after the operation, the stability of the hip is mainly dependent upon the orientation of the femoral and acetabular components together with the tension of the intact structures around the joint. The approach to the operation, anterior or posterior, may also be a factor. Dislocation of the prosthesis is part of the information given to the patient and discussed prior to undertaking the arthroplasty and, thus, it is recognised as a real and significant complication of the procedure. 9] A further explanation on the need for the remedial surgery given by Mr Lamberton was as follows: ... The difficulty is after his first dislocation he has clearly sustained a significant soft tissue injury to the envelope of muscles around the hip and this then compromises ongoing stability. Remedial surgery involves compensating for this by changing the implant device to a more stable configuration as soft tissue repair is not in itself fruitful. [10] In his submissions to the Court, Mr Wood contended that the initial dislocation which resulted in the leg being pulled out of the socket, created a situation where the three following dislocations were able to occur and that the physical circumstances of his left hip would not have required the remedial surgery had it not been for the initial dislocation in the covered accident. [11] Mr Barnett, Counsel for the Respondent, submitted that the appellant's situation was one where the first dislocation occurred so soon after the hip replacement surgery that replacement tissue had no chance to develop and that this was the main reason for the repetitive dislocations. He submitted that the revision surgery sought to be funded was surgery which arose from the initial degenerative condition of the 5 appellant's hip and where the risk of dislocation following that initial surgery was a recognised possibility in the first few months following surgery. DECISION [12] The claim which has been made by the appellant for the funding of elective surgery requires it to be established that the need and reason for such surgery is causatively linked to the covered personal injury. [13] In the present case, the covered personal injury was the dislocation suffered by the appellant and which required treatment by way of re-setting the appellant's leg and hip. The evidence is that this remedial treatment was carried out correctly and in effect the pre-injury situation regarding the appellant's left hip was restored, that is how the left hip joint replacement was physically operating. [14] It is the case, as stated by Mr Lamberton, that the subsequent dislocations all occurred with minimal provocation, and that the reason for this was that the initial injury, that is the injury of 17 October 2009, which is the covered injury, had resulted in a compromise of the hip stability by the significant soft tissue injury. [15] It seems to be the basic physical situation that because of that initial soft tissue injury and the subsequent re-injury, it meant that the left hip required remedial surgery, and as stated by Mr Lamberton, required remedial surgery involving compensating for that soft tissue injury by changing the implant device to a more stable configuration. A soft tissue repair would not of itself be fruitful. [16] As Mr Lamberton further noted in his application for approval, because of the soft tissue injury, it required the adjusting of the angle of tilt of the socket. [17] Whilst it must be acknowledged that the initial medical condition requiring total hip joint replacement was because of the arthritic condition of the hip, the replacement hip was not of course arthritic and whilst it must be acknowledged that in the first three months or so after such surgery there is a real prospect of dislocation, it is the situation of the appellant's case that the initial dislocation was brought about by an accident for which there was clearly an entitlement to cover under the Act for the injury so sustained. [18] It is a basic concept of the consideration of cover for personal injury that a claimant for such an injury must be accepted as he is found, and in the case of this appellant he was in a state of having some twelve days earlier undergone a total hip replacement at the point of injury. 6 [19] In the present case, I find that the causative link between the requirement for surgery and the appellant's covered injury is the fact that the covered injury did include, as a prime factor, damage to the soft tissues, and as stated by Mr Lamberton, that soft tissue damage compromised ongoing stability and the remedial surgery required to compensate for that compromise of stability was by changing the implant device to a more stable configuration. [20] There is no evidence that in the first instance the initial hip replacement surgery was not correctly done, and it seems to be the opinion of Mr Lamberton that if the appellant could have been injury free for some three months or so after the surgery, there would not have been any ongoing problems. It is of course the case that he was not injury-free because of the accident which occurred and for which he was given cover. [21] In considering the matter from every angle, I find that whilst it may be the case that dislocation of the prosthesis is a recognised complication of the hip replacement procedure, where that complication is caused by a covered personal injury then it is the case that entitlements under the Accident Compensation Act do arise, and I find that the requirement that there needed to be revision surgery in order to prevent further dislocations because of the state of the appellant's hip, which had arisen consequent upon the injury event, gives rise to the causative link which permits for the cost of that remedial surgery to be covered as an ongoing consequence of the appellant's covered injury. [22] Accordingly, therefore, I find that the surgery carried out by Mr Lamberton by way of revision of the appellant's hip replacement was surgery for which the appellant was entitled to receive funding, and I therefore direct that the respondent make payment of the cost of Mr Lamberton's surgery which was carried out in September 2010. DATED this 21 day of December 2011 I deaths M J Beattie District Court Judge