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Accident Compensation Cases

Gilbert v Accident Rehabilitation and Compensation Insurance Corporation (DC, 23/03/99)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
The issue in this appeal is whether the respondent was correct to cancel the appellant's entitlement to weekly compensation pursuant to section 73 of the Act on the grounds that any incapacity of the appellant was not as a consequence of the personal injury for which he had cover under the Act. 
Background 
The appellant suffered multiple fractures to his right leg in a motor cycle accident in 1966. He received a closed fractured femur and a segmental fracture of his right tibia. The right femur was K rodded and his right tibia went on to develop a non union which required an open reduction and internal fixation with a Sherman plate. Skin grafting procedures were required. 
The appellant recovered from these injuries and resumed employment and a normal life, including tramping. 
In 1984 whilst tramping he struck his right shin, where the skin graft had been carried out, on the branch of a tree and this split open the skin grafted area over the bone of the upper tibia. The appellant sought and obtained cover under the 1982 Act in respect of that injury. His injury required an operation involving further skin grafting and replacement with a facio-cutaneous flap from the side of the calf. Such surgery was carried out by Mr Calcinai, Plastic Surgeon. 
For about two years after that surgery the appellant suffered periods of infection in his leg and there were instances of cellulitis which were treated with antibiotics. It seems that from 1986 to 1994 there were no further episodes of infection. 
In April 1994 the appellant fell off a stepladder onto a concrete floor. He injured his right leg and ankle in this fall and his leg immediately began to swell. Initially he was treated with antibiotics but his right ankle became sore and remained so. In September 1994 he again developed an episode of cellulitis and was thereupon referred by his GP to Mr Peter Devane, Orthopaedic Surgeon, for examination and treatment. 
Mr Devane assessed that the appellant would need surgery and removal of the Sherman plate in order to get at the seat of the infection. That surgery for the removal of the plate was carried out by Mr Devane and for a time thereafter the appellant's leg was free of infection. However the appellant had been suffering pain his ankle, Mr Devane noting that he had marked degenerative osteoarthritis in his ankle. 
Once the infection had been removed following the operation for the removal of the plate Mr Devane undertook an ankle arthrodesis. The first operation for this was carried out by Mr Devane in March 1995. However following that operation he continued to experience pain in his ankle and it appeared that a non-union of the bones had developed and therefore a second arthrodesis operation was carried out in April 1996. This operation was successful and his ankle did fuse. 
It seems that the appellant has had no further recurrence of infection by cellulitis but medical opinion is that he can never be regarded as being totally free of the possibility of same. At the present time the appellant suffers from restricted movement in his right leg because of the stiffness of his ankle and the stiffness of the hind foot joint which medical opinion states is a consequence of the arthrodesis of the ankle. 
By letter dated 6 January 1997 the respondent advised the appellant that from the medical information it had it was of the view that his current incapacity related wholly to the injury sustained in the accident in 1966 and not that of the fall from the ladder of 1994 and that pursuant to section 73(1) of the Act weekly compensation was ceasing. 
The appellant sought a review of that decision and a first review hearing took place in March 1997 culminating in an interim decision given on 10 April 1997. It had been the submission of the appellant's advocate that the Corporation did not have clear evidence that the appellant's ongoing incapacity was wholly as a consequence of his 1966 accident and that the evidence which tended to the contrary was inconclusive. A report of sorts had been obtained from Mr Devane but the Review Officer had considered it incomplete. Accordingly the Review Officer determined that the appellant be examined by a senior Orthopaedic Surgeon in Wellington, and Mr Hopkins was nominated in order that a complete report could be obtained. 
The Review Officer wrote to Mr Hopkins, Consultant Orthopaedic Surgeon, on 16 April 1997 and the question posed was whether Mr Gilbert's current incapacity to work (indicated to relate to the right ankle arthrodesis) was a result of a) his fall from a ladder in April 1994 or b) his serious motor cycle accident in 1966 or c) his scratch below right knee in 1984 or d) some other cause. 
Background information and relevant medical reports were provided for Mr Hopkins. 
Following receipt of Mr Hopkins' report dated 9 July 1997 the review hearing reconvened on 27 July 1998 by which time a further report had been prepared by Mr Devane and another report from Mr Peter Grayson, Orthopaedic Consultant. 
In her decision dated 1 September 1998 the Review Officer stated: 
“All specialists agree that the appellant's ongoing incapacity arises from the ankle arthrodesis. The question is whether the need for the arthrodesis arises as a direct result of the 1966 accident or the later injuries/incidents. It is my view that the medical opinion of Mr Devane and Mr Hopkins clearly indicates that the need for the ankle arthrodesis is a direct result of the 1966 injury and it follows that I will not be altering the Corporation's original decision. ”
It is from that decision that the appellant now appeals to this court. 
The legal issue to be determined is whether the appellant's arthrodesis of his right ankle, which is accepted as being the cause of his incapacity, is personal injury which is a consequence of treatment for personal injury covered by this Act as provided in section 8(2)(d) of the Act. Whilst the foregoing is the proposition of law, the answer is wholly a medical one. 
The medical evidence 
The first report of relevance is that of Mr Devane dated 10 October 1994 which was a report to the appellant's GP but which was also a request to the respondent to contribute to the cost of the operation necessary to remove the infected plate from the appellant's right tibia. It had been Mr Devane's assessment that it was the plate which had caused the outbreaks of cellulitis and infection. In his report Mr Devane says: 
“The first surgery that would need to be undertaken is removal of the plate. It is almost ertain that all of the screws would fracture as they are being removed leaving their shafts lying in the tibia. A decision would have to be made at the time of surgery whether these screws would have to be removed with a mill. There is also the question of whether there is a nidus and I think that tomograms arranged prior to surgery would delineate this answer as his tibial would be required to be windowed and this piece of dead infected bone removed. I have explained to him the complications of a skin slough or a flaring up of the infection and at the very worst a pathological fracture. I do not envisage any of these complications but they are certainly a possibility. Despite all of this he is quite keen to proceed with surgery. 
If we could get his leg healed and the infection removed and he was infection free for a period of time, at that stage he would be keen to take some form of treatment for his right ankle and I have explained to him that the only treatment available to him would be a right ankle arthrodesis as the results of ankle replacement in this situation are so bad. ”
The next report of relevance is that of Mr Jeremy Hopkins, Orthopaedic Surgeon, who was consulted in his capacity as a senior Orthopaedic Surgeon for an opinion based on the question to which I have previously referred earlier in this judgment. This report is of seven pages and is extremely comprehensive. Passages particularly relevant to the issue before this court are as follows: 
“Currently he has a sound ankle arthrodesis but gross stifness of his sub talar joint which was noted to be significantly limited when seen by Mr Devane in 1994. X-rays taken around that time showed marked osteoarthritis of the ankle. 
Currently he appears to be limited in activities both by the stiff arthrodesis of his ankle but also by the gross limitation of the movements of the sub talar and to a lesser extent the mid tarsal joints and pain. It is my opinion that the pain that is generated is likely to be coming from the hind foot complex as it appears that the ankle fusion is sound. 
The stiffness of the hind foot joint is a long term sequel to the original injury of 1996 where scarring and fibrosis would have produced limitation of movement which is clearly noted at the time he was first seen by Mr Devane. 
I am of the opinion that clearly the osteoarthritis of the ankle and the stiffness in the hind foot is a direct sequel of his original injury in 1966. I do not believe that the osteoarthritis or the hind foot stiffness has any relationship with the intermittent cellulitis and infections which have occurred since 1984. 
In respect of the infections, the first recorded infection appears to have developed following the truma to his split skin graft by the tree branch in 1984 and two years later x-rays suggested there were some bony element to the infection associated with the plate and screws. I believe it is impossible to be totally dogmatic as to whether or not the infection was entirely originated by events in 1984 alone, or whether or not there may have been some latent infection subsequent to his clearly compound fracture in 1966. However, the time frame involved of almost 20 years would make me take the view that the occurrence of the infection is unlikely to be related to the fractures of 1966. I therefore believe that the recurrent infections were triggered in 1984 by the original laceration with the tree branch leading to the necessity for removal of the plate and screws. This appears to have controlled his recurrent infections except for one brief episode in January 1996 which resolved on antibiotics. 
Given the degree of osteoarthritis which was noted in 1986, I do not believe that the fall from the ladder in 1994 produced any significant alteration to the clearly marked and ongoing degenerative changes within his ankle. Mild trauma to an osteoarthritic joint such as the ankle is likely to provoke pain in an increased fashion however I believe the necessity for arthrodesis was inevitable bearing in mind that the evidence suggests that he was developing increasing pain in his right ankle long before 1994 and indeed was on anti-inflammatory medication in 1978. 
At the present time Mr Gilbert's current incapacity to work in his original job is clearly related to the arthrodesis of his ankle with associated total stiffness but more particularly the pain he experiences in the hind foot which I believe is coming from the hind foot joint complex and is related to the injury of 1966. I note at the time he presented to Mr Devane the range of movement in the ankle was extremely minimal being only from 25deg. of plantar flexion to 20deg. of plantar flexion with marked crepitus. Given those findings I believe he would have increasing difficulty in continuing in his work from that time on in any event. 
His recurrent infections appear to have now been at least if not eradicated, held in abeyance and I do not believe that they have any bearing on his present incapacity to work. It should be borne in mind however that even though this aspect of his problems is under control one cannot guarantee that he may not have a recurrence of infection at any time in the future. Any such recurrence would not in my view be related to the ankle arthrodesis. 
Consequently I would be of the opinion that his present incapacity to work is unrelated to the accident in 1984 nor to the accident of 1994. ”
In addition to his report Mr Hopkins was asked a series of questions by the appellant on the day of his examination and two of his answers are significant for the purposes of this decision. 
“Would the degree of disability have been the same if I had not had the 1984 and 1994 accidents and any subsequent infections? ”
Mr Hopkins' answer was: I do not believe that the 1984 and 1994 accidents have altered the degree of disability which Mr Gilbert has as I believe the pathology in his right foot is related entirely to the accident of 1966. 
The second question was: 
“Could the 1984 and 1994 accidents and subsequent infections have aggravated the pre-existing condition? Would it have brought forward the need for arthrodesis? ”
Mr Hopkins' answer was: I do not believe that the 1994 episode has any bearing on the degree of osteoarthritis whatsoever nor would the subsequent infections. Asfaras the the 1994 accident is concerned, I believe this may have temporarily aggravated the symptoms from the stiff and osteoarthritic ankle but do not believe that it would have brought forward the need for the arthrodesis bearing in mind that he had gross marked degenerative changes in the ankle at the time he saw Mr Devane. 
In a letter dated 3 November 1997 from Mr Devane to “To whom it may concern”. He stated inter alia 
“When I saw him today there was no evidence whatsoever of any cellulitis, the wounds are all nicely healed, there is minimal swelling in the area and his ankle and foot are functioning quite satisfactorily. 
I think this would definitely indicate that the removal of all metalware and the small area of sequestrum during the last several operations on Mr Gilbert's right leg would indicate that we have not yet eliminated the cellulitis which has been an ongoing problem since he first presented to me two years ago. My strong suggestion would be that if any further episodes such as this arise that he undergo an urgent bone scan with the delayed phase of the bone scan being carefully interpreted to locate any evidence of sequestrum within the tibia. I think this also suggests that the cellulitis episodes which Mr Gilbert is getting may require further intervention and treatment as appropriate. He is going to contact me if he develops any further episodes no matter where he is in New Zealand and I will suggest to the person looking after him, if he is not in Wellington that he has an urgent bone scan to his leg. 
Further to this note is the question that we discussed today regarding the exact reasoning behind why the plate was removed from the right tibia and the right ankle arthrodesis was performed. 
1.
The plate was removed from the right tibia to reduce the chances of further episodes of cellulitis. 
The ankle arthrodesis was performed for three reasons: 
to give a straight stable leg below the tibia 
to give a pain free leg 
to reduce the further chances of cellulitis since removing the plate in itself did not completely eradicate further instance of cellulitis which has been documented to occur in the time between the plate being removed and the ankle arthrodesis. ”
The final report is that from Mr Peter Grayson, Orthopaedic Consultant, dated 26 April 1998. Again, Mr Grayson's report is six pages long, much of it repeating the appellant's medical history. 
“We then come to the accident in 1984 which has completely changed his life. As a result of the branch lacerating the area of thin skin on his shin, the latter ‘broke down’, and became seriously infected with the development of a chronic ulcer, and it was some weeks before this infection could be brought under control to the extent that Mr Calcinai could apply a fasciocutaneous flap to give more protection to the underlying bone. Unfortunately this operation was complicated by a further bout of infection, and with the bone plate fixing the fractures of 1966 lying inclose proximity, I think deep infection involving bone and soft tissues developed at this time, and I note that Dr K Bremner shares this view and that the ACC have to accept responsibility for the acceptance of the claim on the basis of the egg-shell skull principle. 
The ‘consequences’ of the 1984 accident have led to bouts of recurrent cellulitis as listed above, markedly contributing to deterioration in the leg, and I would accept that present incapacity is one over and above what one would normally expect from the results of the 1966 accident alone. 
In addition the state of the leg is such now that he is prone to further bouts of infection in the future from local trauma and I have suggested to Mr Gilbert that he purchase a shinguard to protect his shin in this regard. 
To summarise therefore and in attempting to answer the questions asked by Mrs Kermode of Mr Jeremy Hopkins in her letter of 16.4.97 I would state that Mr Gilbert's current incapacity to woalk (should this not be work) normally is a result of 
a)
Recurrent bouts of infection resulting from the accidents of 1984 and 1994 with ‘flare-ups’ in 1995, 1996 amd 1997 and as the result of the consequences of these bouts of infection present incapacity to work is great than would have been anticipated if these bouts of infection had not occurred. 
b)
Osteoarthritis in the right ankle resulting from the motor cycle accident in 1996 requiring ultimately arthrodesis of the joint. I would confirm my agreement with Mr Devane's comments that this ankle arthrodesis was performed for three reasons, namely: 
1.
To give a straight stable leg below the tibia; 
2.
To give a painfree leg; 
3.
To reduce the further chances of cellulitis, since removing a plate in itself did not completely eradicate further incidents of cellulitis, which has been documented to occur in the time between the plate being removed and the ankle arthrodesis. Unfortunately the arthrodesis of the ankle, which turned out to be a major procedure in that it had to be carried out twice to obtain sound bony union, has provoked symptoms from the adjacent subtalar joint, also the seat of osteoarthritis, which is now taking the strain of weightbearing due to the repositioning of the right foot. It is likely that the subtalar joint pain has been aggravated further by Mr Gilbert's marked increase in weight (aout 20kg in the last three years) due to inactivity, and trauma to the joint as a result of falls and twists. ”
Decision 
There is no doubt that the appellant's present incapacity arises from the arthrodesis of his ankle. As explained by Mr Hopkins the pain that is generated in his ankle is coming from the hind foot complex and the stiffness of the hind foot joint is a long term sequel to the original injury of 1966. 
Having considered the medical evidence I find that the first report of Mr Devane of 10 October 1994 is highly significant. First of all he notes from x-rays that the appellant has marked degenerative osteoarthritis of the ankle with some subluxation of the talus (“subluxation” meaning an incomplete or partial dislocation and “talus” meaning the highest of the tarsal bones and the one which articulates with the tibia and fibula to form the ankle joint). 
It is noted that the appellant was referred to Mr Devane because of the infection and cellulitis that was occurring in the area of the skin graft and it is stated in his report that he assessed that the plate which had been inserted after the 1966 accident was the probable cause of the infection. 
In his report he advised that the first surgery that would need to be undertaken was the removal of the plate and any dead or infected bone be removed. Mr Devane did not envisage any complications in this particular surgery and as it transpired there were none. He then went on to say that if infection could be removed and he be infection-free at that stage he would be keen to take some form of treatment for his right ankle and I have explained to him that the only treatment available would be a right ankle arthrodesis. 
From that report I take it that Mr Devane considered the two operations to be quite separate and distinct and for quite separate and distinct purposes. The ankle arthrodesis being designed to remedy the degenerative osteoarthritis and the subluxation of the talus. The arthrodesis being “the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces by promoting the proliferation of bone cells” — see Dorland's Medical Dictionary 27th ed. 
In his advice of 3 November 1997 Mr Devane gave as his reasons for the ankle arthrodesis as being: 
1)
To give a straight stable leg below the tibia; 
2)
To give a pain-free leg; 
3)
To reduce the further chances of cellulitis. 
It is the clear opinion of Mr Hopkins that the appellant's osteoarthritis or hind foot stiffness has no relationship with the intermittent cellulitis and infections which have occurred and that the arthrodesis is quite unrelated to the injuries of 1984 or 1994. He does however note that the appellant may have a recurrence of infection and he is of the opinion that any such recurrence would not be related to the ankle arthrodesis and would therefore be related to the injury of 1994 or 1984 and in the event of that occurring the appellant would be entitled to cover. 
Indeed Mr Grayson, in his report, advises that the appellant's incapacity arises from two sources, firstly recurrent bouts of infection resulting from the accidents of 1984 and 1994 in which the appellant had a history of incapacity in 1995, 1996 and 1997 and secondly, from the osteoarthritis in his right ankle resulting from the 1966 accident requiring the arthrodesis of the joint. 
I take it from Mr Grayson's opinion that the appellant is still likely to be susceptible to infection from local trauma and I find he is quite correct to observe that because of his physical condition he is more susceptible to grave consequences from an accident than a normal healthy person would be. He even observes that the egg-shell skull principle would apply. 
However I do not take it from his opinion that he is stating that the appellant's ankle arthrodesis and which is one of the causes of his disability and at the present time is the only cause of his disability, is one which is attributable to either the 1984 or 1994 accident. 
If as a bonus the ankle arthrodesis has the result of further reducing the chance of further infection then I find that as and until further infection does occur no cover can be had. I find that there can be no cover for the ankle arthodesis per se as that operation was wholly for the purpose of addressing the osteoarthritis and the subluxation of the talus. 
Accordingly then for so long as the appellant's incapacity is being caused by that which Mr Hopkins has assessed as being associated with the arthrodesis of his ankle then that incapacity is not as a consequence of any personal injury for which the appellant has cover under the Act. For that reason therefore the decision of the respondent to cease entitlements I find was correct. 
Having said that however I observe that in the event of their being any further accident involving the thin skin over the shin bone as is referred to by Mr Grayson and that this causes infection or other consequences, the appellant would be entitled to cover be it under the umbrella of that new accident or have it relate back to the earlier accidents of 1984 and 1994. 
For the reasons stated this appeal is dismissed. 

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