Wytenburg v Accident Compensation Corporation (Entitlements)

IN THE DISTRICT COURT AT NELSON ITE KOTI-A-ROHE KI WHAKATU [2019] NZACC 2 ACR 013/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN WAYNE WYTENBURG Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 18 May 2017 Appearances. Mr Duncan for the appellant Ms Light for the respondent Judgment: 22 January 2019 Reserved on 14 December 2018 following non-compliance with directions issued on 13 September 2018 RESERVED JUDGMENT OF JUDGE DENESE HENARE Entitlements - Section 67 and Schedule 1 Accident Compensation Act 2001 [1] On 20 September 2009 the appellant, Wayne Wytenburg sustained an injury to his left ankle whilst running. Cover was granted for a left ankle sprain. [2] In May 2015 Mr Wytenburg's Orthopaedic Surgeon, Mr Wilson, applied to the Corporation to fund a medial and plantar calcaneal displacement osteotomy. 3] The request for surgery was declined by the Corporation on 18 August 2015 because a causal link was unable to be established between the 2009 accident and the need for surgery. [4] The issue in the appeal is causation, whether the appellant can establish a causal link between the covered injury and the need for surgery. Post Hearing Directions [5] The appeal was part heard following submission by Mr Duncan and agreement by Ms Light that Mr Duncan would provide further reports on the inter-relationship of Mr Wytenburg's ankle/foot pathologies. To this purpose, the Court's minute of 19 May 2017 directed: Parties are to confer on issues - whether further specialist comment is required - to update the Court within 28 days. [6] A further minute of the Court dated 30 June 2017 directed: Mr Duncan will have until 7 July 2017 to advise Ms Light and the Registry which reports are to hand. Mr Duncan and Ms Light will confer whether a further comment is to be obtained from Mr Ball. The parties are to file a joint memorandum by 14 July 2017. Mr Duncan and Ms Light will advise the time required to provide any supplementary evidence. [7] A minute following a teleconference issued on 15 February 2018 and directed: [1] This matter was part-heard on the basis of Mr Duncan's submission that further medical evidence be obtained. The Corporation agreed. [2] Mr Duncan provided update that the appellant had filed a new review subsequent to the hearing in May 2017. That review relates to the knee and lower limbs. Mr Duncan submitted that all of the injuries are under consideration and a settlement may be able to be achieved with the Corporation on all matters without the need for further hearing. [3] Directions are: [a] Mr Duncan will file a memorandum providing a further update by 23 March 2018. [8] On 13 September 2018, a further teleconference Minute issued: [1] Mr Duncan did not provide a memorandum of update in this matter by 23 March 2018 as directed by the Court in a minute dated 15 February 2018. 2] At teleconference this morning, Mr Duncan reiterated the point that he has made previously that the Corporation should consider all Mr Wytenburg's injuries and not any one injury in isolation. The Court has taken this consideration into account and provided time to enable an opportunity of negotiation and settlement. Mr Duncan submitted the appellant would be disadvantaged if the Court made a decision because of issues at review in respect to other matters that could be affected by this decision. Mr Duncan indicated he proposed to elaborate further on these matters and file a memorandum by Friday 21 September. 3] It has been some 18 months since hearing and the matter has not achieved resolution. It is now apparent that time has passed and finalisation of the appeal is required. [4] Having reflected on the matter further, if such memorandum (with reasons) is not received by 21 September 2018, the Court will proceed to finalise the decision in the appeal. [9] It is apparent the appellant has had more than ample opportunity to produce further evidence in the appeal. [10] In the absence of any evidence having been received since hearing, the Court now proceeds to finalise the decision on the evidence before it. Mr Wilson's reports 11] There are fourteen reports prepared by Mr Wilson between 2 December 2009 and 5 February 2016. The final report was prepared following review, and had not been considered by the Clinical Advisory Panel ("CAP") on 27 April 2017. It was reviewed by CAP on 15 May 2017. [12] Perusal of Mr Wilson's reports shows multiple pathologies that are medial, lateral and intra-articular. In his first report, Mr Wilson noted a tibialis posterior tendon (TBT) expansion/abnormality as a separate situation, that is "a flat foot type deformity. Mr Wytenburg was treated conservatively with Mr Wilson opining that surgery for instability of the ankle joint may be required in the future. [13] Mr Wilson performed a ligament reconstruction on 3 May 2011 which was funded by the Corporation. Throughout 2011 and 2012, Mr Wilson reported ongoing problems affecting the lateral aspect of the foot and ankle, noting lateral ankle joint pain. In his request for funding (ARTP) of May 2012 Mr Wilson drew a causal link between the unstable ankle post surgery and the 2009 accident. The Corporation funded a second surgery on 19 March 2013, that is a "tibialis posterior sheath proceed to debriding of ankle impingement lesion and achilles tendon lengthening". [14] By November 2013, Mr Wilson thought the TBT was failing steadily. However, he noted Mr Wytenburg managed to run a number of kilometres in January 2014 without significant pain. [15] On 8 May 2015 Mr Wilson requested funding for surgery. The ARTP notes the history of the current condition: Ongoing problems with his ankle have resulted in discussion re further surgery. His ankle was injured in September 2009 and he has had ankle ligament reconstructions, a tendon debridement and ankle joint debridement. He presents now with increasing and adult flat foot deformity and mild forefoot varus. His pain is around the medial aspect of the hind foot directly in line with the tib post tendon. Interestingly enough an MR has not shown obvious abnormality of this. I wonder really whether this is just quietly stretched out over time without any significant structural change that means that it is functionless but the MR is not really indicating any gross abnormality. His longitudinal arch has effectively just disappeared. His ankle showed this abnormality quite clearly both in the AP and lateral views. My recommendation would be a medial and plantar calcaneal displacement osteotomy. A first metatarsal plantar osteotomy and if necessary a flexor digitorum transfer. I think the soft tissue is complicated because Wayne clearly has evidence of weakness of that left foot and ankle which I think reflects a historic spinal problem and I'm not convinced that he will need a digitorum transfer because it may be that muscle tendon unit has no more power than his current tib and tib post complex does. [Emphasis added] 16] In terms of the causal link between proposed treatment and the covered injury, Mr Wilson recorded: On 20.09.09 he twisted his left ankle badly when he was jogging, got distracted and rolled his ankle into inversion. [17] Mr Wilson went on to state: He presents now with increasing adult flat foot deformity and mild forefoot varus. His pain is round the medial aspect of the hind foot directly in line with the tib post tendon. [Emphasis added] [18] On 4 August 2015, the CAP responded to the ARTP and noted: There was no evidence to provide a causal link between the current condition (adult acquired flat foot deformity and mild forefoot varus) and the covered accident. There was no imaging evidence of a tibialis posterior injury, and the noted abnormality of TBT elongation appeared relatively stable. CAP agreed with Mr Wilson that the presentation appeared consistent with gradual onset tibialis posterior dysfunction. The medial symptoms experienced are due to this underlying condition. CAP noted that flat foot presentation was to some extent bilateral, and there was a suggestion of symptoms and objective evidence in GP notes of pronation in 2006. This information provided further support for the CAP view that a causal link to the 2009 accident appeared unlikely. [19] The CAP opinion formed the basis for the Corporation's decline decision dated 18 August 2015. 20] On 25 September 2015 Mr Wilson responded to the CAP report and the Corporation's decision that: ... the current situation is of a progression of a flat foot or planovalgus deformity leading to requirement for the classic combination of surgical procedures for that ... ... the issue here really is the relevance of the injury of 2009 to Mr Wytenburg's hind foot failure. It is inevitable that it is playing some part. The CAP has determined that it is a relatively minor component and that the predominant pathology here is an adult acquired flat foot deformity excluding trauma as a relevant component. The conclusion the CAP has reached seems reasonable. The planovalgus foot position was evident at the initial assessment in 2009 and my notes reflect that. However it is certainly possible that the injury has precipitated a much more rapid deterioration of hind foot position than would have otherwise occurred. Whilst it would be unreasonable to conclude that the trauma of 2009 is the sole cause of Wayne's hind foot failure it would certainly be reasonable that it is a significant component of. In particular once again that the right foot which is consistently being used as a benchmark has no significant deterioration or symptoms over the same timeframe. So I would conclude that the events of 2009 substantially altered the natural history of this man's hind foot positioning and have ultimately resulted in the need for further surgery. [21] Following review, Mr Wilson provided a further report dated 5 February 2016 commenting that: The first MRI scan did show both tibialis posterior changes, worded as expansion, and the expected lateral ligament complex injuries. There was correlation between the findings and Mr Wilson's initial assessment. Following the 2009 accident, the appellant had features of planovalgus foot deformity "but clear description in a functional sense of a lateral ligament complex disruption". Both were present in 2009, and the most symptomatic of these was addressed. Mr Wytenburg presents with the ongoing progression of a hind foot collapse and requires surgery for all of the features are "post traumatic and not degenerative". Imaging revealed an acute injury to the TBT in the 2009 MRI scan. [22] On 27 April 2017 CAP provided further comment that causation of the flat foot was not addressed by the BMA who provided comment on 2012 surgery request prior to the Corporation's approval. CAP could not identify any traumatic pathology that led to the current condition. In particular there was no evidence of traumatic injury to the TBT, and Mr Wytenburg already had signs of a flat foot as early as 2006. 23] CAP opined the surgeries performed were to address problems with the lateral aspect of the ankle. The current problem, the subject of the ARTP affected the medial aspect of the foot and ankle. [24] On 9 May 2017 CAP referred to Mr Wilson's report of February 2016 and considered that the report did not alter the previous CAP opinion. CAP reported: While we acknowledge his comments that there was expansion of the tibialis posterior tendon on the initial MRI, this is unlikely to be due to single episode trauma. The client already had a flat foot in 2006, three years prior to the 2009 accident. The appearances of the tibialis posterior are likely to reflect progressive changes in the tendon. We note that the tibialis posterior tendon runs on the medial aspect of the foot. A flat foot deformity (whereby the medial arch of the foot collapses) places tension on the tibialis posterior tendon and over time this can become stretched. This is a likely explanation for the changes Mr Wilson has noted were present in the tendon in 2009. The client sustained an inversion injury in 2009 which affects structures on the lateral aspect of the foot and ankle as opposed to the medial aspect. This will likely have caused the lateral ligament pathology but is unlikely to affect the tibialis posterior tendon on the medial aspect of the foot and ankle. We do not think that the evidence as a whole is supportive of a sufficient contribution from the 2009 accident to the client's tibialis posterior tendon changes and his progressive flat foot deformity. The previous CAP advice remains relevant. The case for the appellant [25] Mr Duncan filed submissions at review including a statement from Mr Wytenburg also provided at review. [26] At hearing, Mr Duncan submitted: [a] A number of injuries and their inter-relationship in the lower limbs were not taken into account by the Corporation; [b] Mr Wytenburg has suffered consequential injury arising from his covered injuries; and [c] The evidence of both the Corporation and Mr Wytenburg agree a contribution, but Mr Wilson says the contribution is significant whereas the Corporation takes the position that the 2009 injury played a minimal role. The case for the Corporation [27] Relying on CAP reports, Ms Light submitted: [a] Causation of the flat foot was not addressed by the BMA who provided comment on the 2012 surgery request prior to the respondent's approval; [b] They could not identify any traumatic pathology that led to the current condition. In particular, there was no evidence of traumatic injury to the TBT that might have gone on to result in flat foot; [c] The appellant already had signs of flat foot as early as 2006; [d] The surgeries performed were to address problems with the lateral aspect of the ankle. The current problem affects the medial aspect of the foot and ankle; [e] Flat foot deformity is in most cases due to a gradual process, often associated with increasing age and often asymmetrical. The absence of deterioration in the right ankle is not supportive of trauma being causative of the deterioration in the left ankle. Discussion and Analysis [28] The Court acknowledges Mr Wytenburg's statement that his left ankle problems have had stressful consequences for him, including in respect to necessitating changes in his employment. [29] The central issue in the appeal is causation. The question is whether Mr Wytenburg's need for surgery is causally linked to the 2009 covered injury of a left ankle sprain. The application is to fund a medial and plantar calcaneal displacement osteotomy. Mr Wilson's report of February 2016 is clear that as at 2015 Mr Wytenburg presented with "the ongoing progression of a hindfoot collapse or planovalgus foot" and "requires the surgery he proposed." [30] I am guided by the general principles on causation set out by the Court of Appeal in Ambros': [67] The different methodology used under the legal method means that a Court's assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the Court to draw robust inferences of causation in some cases of uncertainty ... However, a Court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture ... ACC V Ambros [2007] NZCA 304. Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the whole of the lay, medical, and statistical evidence, and not be limited to expert witness evidence ... [68] Spigelman CJ in Seltsan said that the only time that Judge is not able to draw a robust inference of causation is in cases where medical science says that there is no possible connection between the events and the injury or death ... if the facts stand outside an area in which common experience can be the touchstone, then the Judge cannot act as if there were a connection. However, if medical science is prepared to say that there is a possible connection, the Judge may, after examining all the evidence, decide that causation is probable... [69] We agree that the question of causation is one for the courts to decide and that it could in some cases be decided in favour of the plaintiff even where the medical evidence is only prepared to acknowledge a possible connection. ... [70] Finally on this topic, we note that the generous and unniggardly approach advocated in Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] (CA) per Elias CJ, at [39] per Keith J and at [130] per McGrath J was used by the High Court in this case to modify the causation test. This, in our opinion, is not an appropriate application of the principle, given the plain words of the 1998 Act and the rejection of the increased risk test in Atkinson. The generous and unniggardly approach referred to in Harrild may, however, support the drawing of "robust" inferences in individual cases. It must, however, always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a court to draw even a robust inference on causation. Risk of causation does not suffice. 31] Under s 26 of the Accident Compensation Act 2001 cover is excluded for injury caused wholly or substantially by gradual process disease or aging. Cover is not available for aggravation of a pre-existing condition. [32] I turn to consider the evidence. [33] The evidence shows that Mr Wytenburg had a longstanding medical history related to his left ankle prior to the 2009 accident. A report from Ms Meyer, Physiotherapist in November 2009 reports prior problems with the left ankle since Mr Wytenburg was 8-10 years old, which required him to be hospitalised. She also noted reconstruction surgery and problems with the left ankle in the ten years prior to the 2009 accident. [34] GP notes prior to 2009 indicate evidence of pronation in 2006 and a historic spinal problem affecting the left foot and ankle. [35] Mr Wilson has treated Mr Wytenburg for many years. Mr Wilson too in his December 2009 report noted "recurrent inversion instability over many years". Mr Wytenburg presented in 2009 with a number of pathologies in his left foot and ankle. Included in the pathology is the TBT or flat foot type abnormality. [36] Notwithstanding the concerns expressed by Mr Wilson in respect to the review decision, Ms Light submitted the full CAP and Mr Wilson are effectively in agreement. Mr Wilson wondered if the TBT had "quietly stretched out over time". CAP concurred with that assessment and opined that presentation was consistent with gradual onset of tibialis posterior dysfunction. The TBT deformity was expressly reported in the MRI scan of December 2009. [37] In his report in January 2010, Mr Wilson was clear that TBT reflected a separate situation. Mr Wilson then noted a "bad" injury to the lateral ligaments. By May 2010 the problem was noted as TBT tendinosis and gradual increasing deformity. In his post review report, Mr Wilson concluded the opinion of CAP seemed reasonable. Mr Wilson opined that it is "certainly possible that the 2009 injury has precipitated a much more rapid deterioration of hind foot position than would have otherwise occurred." [38] However, this opinion is not enough to establish causation, at best it represents an acceleration of pre-existing degenerative changes to TBT first noted in 2006, prior to the 2009 accident, and as further reported by the radiologist of the MRI scan in December 2009. [39] Whilst Mr Wilson takes issue with the reviewer's characterisation of his evidence as being inconsistent, it is the case that Mr Wilson viewed the TBT abnormality as "a separate situation", although he acknowledged he was unsure. I take into account also Mr Wilson's opinion that it would be unreasonable to conclude the 2009 injury was the sole cause of hind foot failure. However, this opinion too contrasts his most recent opinion that it "was all post traumatic" [40] In summary, I take into account the following factors in weighing the predominance of opinion in the evidence: Mr Wytenburg had two surgeries approved by the Corporation for funding since the 2009 accident. The first surgery was to reconstruct the ligaments after ATFL and CFL tore. As noted by Mr Wilson on 18 January 2010, the TBT abnormality probably reflected a separate situation, the "flat foot type deformity". The second surgery stemmed from ongoing instability post-surgery. That is materially different to the third proposed surgery, which is to correct flat-foot deformity. The full CAP concurred with Mr Wilson's assessment the TBT had stretched out over time, and was of the view that the presentation was consistent with gradual onset of tibialis posterior dysfunction. On the 15 December 2009 MRI scan, planovalgus deformity is noted with respect to the TBT. The TBT changes were stable and represented tendon angulation on 23 November 2011. The last MRI scan on 8 January 2014 showed stable mild expansion of the TBT. The first CAP report highlights this gradual onset. As Mr Wilson has stated, the conclusion of CAP seems reasonable. The highest that Mr Wilson can put it is that it is "certainly possible that the [2009] injury has precipitated a much more rapid deterioration of hindfoot position than would have otherwise occurred". This opinion reflects, at best, an acceleration of degenerative changes. Further, as the evidence shows the ankle has not been entirely asymptomatic prior to 2009 On 25 September 2015, Mr Wilson viewed the 2009 injury as precipitating a much more rapid deterioration of hindfoot position than would otherwise have occurred. He said it would be unreasonable to conclude the 2009 injury was the sole cause of the appellant's hindfoot failure. That starkly contradicts with his latest opinion that it "was all post-traumatic". [41] The difficulty facing the case for Mr Wytenburg is that aggravation or acceleration of an existing injury process is not within the statutory meaning of personal injury by accident. [42] The weight of the evidence shows Mr Wytenberg is experiencing medial symptoms due to his underlying condition of flat-foot deformity. Mr Wilson acknowledges the position of precipitation of hindfoot position, rather than the accident caused the injury. Even if there is a contribution, the weight of the evidence does not suggest significant cause, sufficient to avoid the s 26 exemption. [43] Reviewing all of the evidence in the round, I am of the opinion that on the balance of probabilities the weight of the available evidence does not support a conclusion that Mr Wytenburg's need for surgery is causally linked to the 2009 accident. Result [44] Accordingly the appeal is dismissed. There is no issue as to costs. Application for Suppression 45] Mr Duncan filed lengthy written submissions with respect to an application for suppression. The reasons he advanced were essentially his personal views about privacy issues with respect to health-related matters generally. There was no evidence from the appellant in support of the application. The Corporation's position is neutral on the point. [46] While there is a discretion under s 160 of the Act, specific reasons in support of such an application need to be provided. The submission for the appellant is that he lives in a small community and any person seeking to employ him in the future could search his name on the internet. Further the appellant has had to expose intimate health and personal details. [47] In my opinion, nothing has been put forward which would suggest that suppression is appropriate in this case. The medical issues arising are of no intense personal or private nature with the events lying behind the claim having no special features warranting additional privacy. The Court also observes that the general reasons advanced by Mr Duncan are arguments that he has submitted in other cases. [48] In the absence of any evidence supporting the application for suppression in this case, there is no basis to grant the application for suppression. quese derace Judge Denese Henare District Court Judge Solicitors: Luke Cunningham & Clere, Wellington for the respondent ACR 013-16-Wytenburg