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Accident Compensation Cases

Dunn v Accident Compensation Corporation (DC, 27/11/03)

Judgment Text

RESERVED JUDGMENT OF JUDGE J D HOLE 
Judge J D Hole
History 
[1]
On 1 June 2001 Mr Dunn slipped on a piece of gristle at work. He sustained an injury to his left knee. 
[2]
On 9 July 2001 Mr Rietveld, an orthopaedic surgeon, saw him. In his report dated 9 June 2001, Mr Rietveld indicated that he thought Mr Dunn had a torn medial meniscus and some inflammation of his hamstring tendon. He recommended arthroscopy of the left knee and the trimming of the meniscus. 
[3]
On 27 July 2001, Mr Rietveld reported on the surgery. He had discovered no tear of any meniscus and some slight synovitis around the middle aspect of the knee. All menisci were found to be intact as were the cruciate ligments. Significantly, he reported that the medial plica was resected. 
[4]
On 17 September 2001, Mr Rietveld reported that he had seen Mr Dunn again. He wrote: “Unfortunately he is now getting a clicking sensation in the antero-superior aspect of the knee, just above his patella and I note that this is where he did have a plica and at the time of surgery I felt that really it wasn't worth undertaking anything for this as it was asymptomatic. We did resect a plica on the medial aspect of the patella where he did have symptoms and this is all settled. I think he may well require resection of these plicas which have now become symptomatic due to the fact that his patella is tracking slightly differently”
[5]
On 3 October 2001, Mr Rietveld reported to the employer that the plica which was in an area which was not resected was now symptomatic although it wasn't prior to surgery. He noted that he required rearthroscopy and the trimming of the meniscus. In the penultimate paragraph of his letter he stated “In my clinical judgement, having taken a clinical history, examined the patient and obtained appropriate diagnostic tests, I believe the recommended treatment is required to treat a condition that is the result of personal injury caused by an accident”
[6]
Notwithstanding Mr Rietveld's opinion, on 4 October 2001, pursuant to s 73 of the Accident Insurance Act 1998, the Corporation stated it was no longer able to provide cover as the plicas were a pre-existing condition and were not caused by the accident. 
[7]
As a result of Mr Rietveld's recommendation, on 23 October 2001 another orthopaedic surgeon, Mr W H Taine, examined Mr Dunn. In his report of the same date he diagnosed as follows: “I agree that he has developed some soft tissue impingement over the superior aspect of the lateral femoral condyle. This may well be as a consequence of the medial patella resection although it is very hard to be dogmatic. I [sic] may also, possibly more likely, be due to some quadriceps wasting post operatively, which is inevitable post arthroscopy, which has led to a degree of decompensation from which he has not recovered yet. Personally I would tend to favour the latter theory but either way, it is a bit speculative”
[8]
He then went on to state: “It certainly seems that the plica resection was required as a result of his fall. While plicae are normal structures, a blow or injury or stretch to one of them can convert it from a soft structure to a more fibrous band which is definitely pathological and requires surgery as a result of the incident. His fall and subsequent medial plica resection correspond so I think it is reasonable to say that the surgery was required as a result of his fall. Also, the current problem does seem to flow on from this and it seems to me reasonable for him knee [sic] to remain covered by his insurer”
[9]
On 14 May 2002 the Corporation's decision to decline cover was reviewed. The application for review was declined. 
[10]
Because of this appeal, a further medical report was obtained from Dr Shaun Xiong. He is a consultant specialist in rehabilitation medicine. In his report dated 31 March 2003, Dr Xiong stated (inter alia) as follows: “In my opinion, the diagnosis is a regional pain condition which is probably based on the underlying plica as a pre-existing condition and which was rendered symptomatic sometime after his operation. 
In my opinion it is questionable whether the pain was actually caused by the plica however there is some reasonable correlation to it. The pain however developed sometime after the surgery and the pain in relation to the current symptoms did not exist prior to the surgery and was not as a consequence of the injury itself. The most logical diagnosis of the pain condition now is in fact a probable complication of the surgery itself and one would have to say it is a potential complication in relation to any surgical procedure. 
The plica itself however is a pre-existing condition which has been rendered symptomatic from the arthroscopic surgery but not the injury. Strictly speaking from the medical point of view the plica is a pre-existing condition which is rendered symptomatic from the surgery and therefore the operation itself can only be regarded as a triggering factor rather than the cause of the plica and his symptoms. In my opinion therefore the current symptoms based on probably the lateral superior plica is not an injury induced condition and should be regarded as a spontaneous medical condition which unfortunately developed into some symptoms sometime after the arthroscopic surgery”. 
[11]
Some clarification of Dr Xiong's opinion was sought and he responded on 1 June 2003. In his report he stated: “It is quite correct to describe that a plica is in fact a natural fold of certain structures such as skin or membrane. In this particular case the plica should be described as a pre-existing fold of the synovial membrane. 
The most accurate description is not to describe the plica as a pre-existing condition but rather that the plica is a pre-existing structure. 
As I have pointed out in my original report the plica can be rendered symptomatic by certain conditions including injury. 
In Mr Dunn's situation it was rendered symptomatic following surgery and therefore it is quite logical to describe the correlation between the surgery as the causation factor for the symptoms. Although it is not a normally anticipated outcome of surgery, it is well known to accept a pain condition can be secondary to any form of surgery. The pain, probably based on inflamed plica after surgery, should therefore be regarded as a complication of surgery. 
The Issue 
[12]
Is there a causal nexus between current symptoms and the original injury? 
[13]
All the medical information is generally the same. From it, certain propositions can be established: 
(a)
Contrary to the Reviewer's decision, a plica is a natural fold of certain structures such as skin or membrane. It does not constitute a pre-existing condition. It is a pre-existing structure. All knees contain plicae. 
(b)
The medial plica was resected during the surgery. 
(c)
It is the lateral plica which is now causing Mr Dunn pain. 
(d)
The most likely explanation for this is that, as a result of the surgery, Mr Dunn's patella is tracking slightly differently from previously and this is causing the lateral plica to become inflamed, thereby causing pain. 
[14]
It seems to me that the decision reached by the Reviewer comes about as a result of two things: 
(a)
The description of a plica as being a pre-existing condition when it is not; and 
(b)
Specialists, such as Dr Xiong, applying a medical understanding of causation rather than the legal test. 
[15]
The cases of Jones (242/02) and Teen (244/02) make it clear that unless there is a clear causative link between the pain condition and an identified discrete physical injury, cover is not available. Further, the Court has also held that in considering issues of causation, a temporal link alone will not suffice (Baxter (287/2000) and Govind (310/02)). 
[16]
In this case, it is clear that Mr Dunn did not experience his current pain before the accident. The current pain arises from the inflammation of the lateral plica and this was caused by the different tracking of the patella. This is a direct result of the surgery and does not seem to be an unusual complication of surgery. The surgery was occasioned by reason of the original injury. There is, therefore, a direct causal nexus between the original injury and the pain which Mr Dunn currently suffers from. 
[17]
Whilst it is not essential to this decision, in this case it is significant that Mr Dunn was experiencing no pain prior to the injury. In the circumstances it is a reasonable inference to draw that it was the injury which precipitated all the subsequent problems which he has experienced to his left knee in respect of which he has claimed from the Corporation. 
Conclusion 
[18]
The appeal is allowed. The decision of the Reviewer is quashed. 

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