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Accident Compensation Cases

Adams v Accident Compensation Corporation (DC, 03/03/11)

Judgment Text

RESERVED DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
Was ACC correct, on 10 August 2009, in suspending the appellant's ongoing entitlements on the basis that his symptoms were no longer causally related to a covered left knee injury sustained on 12 May 2009? 
Background 
[2]
On 26 May 2009 the appellant's general practitioner completed an ACC Injury Claim form for a left knee sprain sustained by the appellant on 12 May 2009 while he was at work “building, carting materials”. The GP then referred him to Mr Sanderson, orthopaedic surgeon, who obtained xrays and reported on 28 May 2009: “On examining his knee today he has a small effusion. He has discomfort on full extension and on full flexion. The ligaments are all intact. He has tenderness over the medial joint line but there is no evidence of meniscal instability … Graeme has suffered a soft tissue injury to an osteoarthritic knee”
[3]
On 2 May 2009, ACC accepted the appellant's claim for cover, and weekly compensation commenced. 
[4]
The GP then referred the appellant to Mr Laws, orthopaedic surgeon, who reported on 25 June 2009. He indicated that the appellant suffered ongoing pain, and postulated that the appellant had suffered a possible medial meniscal tear and recommended obtaining an MRI scan. The MRI was undertaken on 7 July 2009. It revealed tears at various areas of the knee, as well as a widespread degenerative condition. 
[5]
Mr Laws reported on 23 July 2009 that the MRI showed a tear of the meniscus on the medial side posteriorly as well as oedema within the bone, a degree of swelling, and a partial tear of the medial ligament. However, Mr Laws was uncertain whether any of the medial pain came from the meniscal tear, versus the established degenerative change. 
[6]
Dr Odedra (a Branch Medical Advisor to ACC) reviewed the results of the MRI scan on 24 July 2009 indicating: 
“ … the MRI substantially shows degenerative changes within the knee joint which involve both the meniscus and articular cartilage/joint. Hence the substantial problem in this case is the primary degenerative condition of the osteoarthritis affecting the knee joint which has been rendered symptomatic by the recent activity. ”
[7]
Dr Odedra recommended that Mr Laws provide a follow up report. Dr Odedra reviewed the file again on 6 August 2009 and confirmed that in his view ongoing symptoms were in relation to a pre-existing condition. 
[8]
On 10 August 2009 ACC issued a decision suspending the appellant's entitlements and determining that his ongoing symptoms were in relation to a pre-existing degenerative condition. 
[9]
On 1 September 2009 the appellant applied for a review of the Corporation's decision. Prior to the review hearing ACC obtained a further report (dated 1 October 2009) from Mr Laws, who advised: 
“On the balance of probabilities he has had a soft tissue injury as Mr Sanderson suggested and I agree with this, on top of an osteoarthritis knee. The findings when I saw him of discomfort and pain on stressing the medial ligament and the MRI changes suggest there has been a degree of stretching of this and with the underlying bone changes and a bone bruise, I think we would have to say that there probably has been a significant injury. 
Given that bone bruises and the medial ligament injuries can often take many months to settle, it would be my opinion that it would be hard to disprove that his ongoing symptoms aren't due to the original injury rather than the known osteoarthritic changes underneath it. ”
[10]
On 21 October 2009 ACC sought further clarification from Mr Laws. 
[11]
Dr Odedra provided further comment prior to the review hearing indicating that degenerative tears in patients older than 40 years are normal, while traumatic tears are more likely to occur in the young and athletically active. 
[12]
A further MRI was undertaken on or about 10 November 2009. 
[13]
On 19 November 2009 Mr Laws provided a further report opining that the appellant had sustained a significant injury to the medial aspect of his knee involving both the meniscus and the ligament and also some bone bruising. 
[14]
The review proceeded on 8 December 2009 before Mr Orange, Reviewer. He issued a decision on 11 December 2009 dismissing the Application for Review and determining that the appellant's ongoing symptoms were wholly or substantially in relation to a degenerative condition of the left knee. 
[15]
On 5 January 2010 the appellant filed a Notice of Appeal against the Reviewer's decision. Since then ACC has obtained an additional report from Mr Otto, Orthopaedic Surgeon dated 7 October 2010 to which I refer below. 
The Stance of the Appellant 
[16]
In his submissions, Mr Adams took me through the medical history of his injury problems. He emphasised his strong feeling that had the MRI scan been carried out earlier and also that, upon Mr Laws having noted the tears on 27 July 2009, had remedial surgery been carried out reasonably promptly, he would have been back at work full time long ago. I note that back in 25 June 2009 Mr Laws saw from xrays the possibility of a minuscule tear. 
[17]
To me, the appellant emphasised that he had had no such (left) knee problems up to the age of 63, even though he ran a building business and a farm. Of course, he needs mobility for his work. The appellant may now need to sell his farm in order to survive. 
[18]
He resents that ACC maintain he has had a history of injury because he feels he has no such history. He mentioned how he had twisted his knee when carrying long lengths of timber over a paddock in his farm on 12 May 2009, but he just carried on with life and then, on 24 May 2009 a few months later, he was rammed by two sheep and was unable to walk. He said that, being an honest person, he told Mr Sanderson of a problem he had had over 35 years ago i.e. a chip off bone in the left knee. He was concerned that Mr Laws had apparently sent him for an MRI scan of his right knee when the trouble was in his left knee. The appellant is a person with little faith in the medical profession. 
[19]
The appellant is irritated that surgery would have healed his problems within six to eight weeks by fixing the tears but ACC has (the appellant puts it) latched on to his marginal osteoarthritis. He has been desperate to have the remedial surgery ever since. Eventually, he obtained it, as he put it, on the public health system arranged through Dr Laws. The appellant feels it took too long for him to have that surgery and now he can hardly walk and work as a builder. He pointed out that potential customers will not give you work as a builder if you are hobbling badly. However his financial plight has forced him to resume work, he said. He must mean he has resumed work on his farm but not as a builder. 
[20]
He emphasised that, in his view, if ACC had paid for his remedial surgery he would have been recovered and back at work by August or September 2009. He says that he left knee is now healed but he is having problems with his right hip because he favoured his left knee for so long. 
[21]
Simply put, the appellant says he simply cannot walk properly, and so may have to sell his farm and if he had received the remedial surgery promptly, he would have been fully fit long ago whereas he will never recover. 
[22]
ACC's medical advice is that the appellant's knee ligament sprain has recovered and the appellant's current position is that of quite advanced pre-existing degeneration in his left knee; but that the sprain and the tears are resolved. 
Relevant law 
[23]
Pursuant to s 117(1) of the Accident Compensation Act 2001 (“the 2001 Act”), ACC may cease a claimant's entitlements if it is satisfied, based on information then in its possession, that a claimant is no longer entitled to same. Section 117 provides: 
“117 Corporation may suspend, cancel, or decline entitlements 
(1)
The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. …  ”
[24]
In Ellwood [2007] NZAR 2005, the High Court said: 
“If the ACC/the Reviewer/the District Court is ‘not satisfied’, then the evidence has not persuaded them that there is a right to entitlements. That may occur where the evidence on the balance of probabilities establishes no right to entitlements. 
Or it might also occur where the claimant has not established on the balance of probabilities that there is a right to entitlements. In that situation (if the evidence was imbalanced or unclear) the ACC would not be satisfied that there was a right — it would be uncertain. 
In a situation where the evidence is unclear or in balance, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a Reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. [Counsel's] proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect terminated) is a reasonable one. If there is an insufficient basis then the test of ‘is not satisfied’ is not met. If there is a sufficient basis then ACC can be ‘not satisfied’ of the right to entitlements. ”
[25]
The case law also establishes that there must be a link between the symptoms suffered and the injury. A chronic pain syndrome is not in itself an injury: Teen (244/02), Mura (133/03)
[26]
In Fowlie (AP 20/2000), the High Court noted: 
“As was observed by His Honour Judge Middleton in the decision of Bell and which has been followed by other decisions in this Court, the fact that a personal injury by accident causes previously asymptomatic pre-existing conditions to become symptomatic does not entitle a claimant to ongoing entitlements under the Act when the effects of the injury have dissipated and all that is left is a continuing condition. When that state is reached, entitlements must cease. ”
[27]
The appellant must be able to establish the basis for cover and entitlements at any time. The issue of onus was discussed in Wakenshaw v ACC, High Court, Auckland, AP 29/03, 19 June 2003, Priestly J said at page 7: “The over-arching position must be that a claimant, at any stage of the process, must be able to show on the balance of probability that an entitlement exists. The totality of the evidence must establish the crucial nexus”
[28]
However, as indicated above, in Ellwood (2007 NZAR 205), the High Court held that ACC must have a sufficient basis before it is not satisfied that a claimant is entitled to continue to receive the entitlement. In Milner (187/2007), Judge Ongley commented on Ellwood as follows: 
“Malon J considered section 116 of the 1998 Act which contained wording identical to section 117 of the 2001 Act. Malon J interpreted the requirement to mean that before suspending entitlement ACC had to be not satisfied of the claimant's entitlement. Reaching that conclusion requires a positive decision equivalent to being satisfied that there is no right to entitlements, a test that would not be met where the evidence was unbalanced or unclear. Other principles are well established. Prime consideration is that there must be a causal nexus between the covered injury and Corporation's decision to suspend or decline entitlements ”
Discussion 
[29]
The issue in this appeal is whether there was a causal nexus between the appellant's left knee injury sustained in May 2009 and the appellant's symptoms when ACC issued its decision in August 2009. 
[30]
Ms Becroft submits that the medical evidence shows that there is no longer a causal nexus between ongoing symptoms and the initial injury; and that the appellant's ongoing symptoms are now caused by a pre-existing degenerative condition. She relied primarily, but not exclusively, on medical reports from Messrs Otto, Sanderson and, to an extent, Laws. 
The medical evidence 
[31]
As referred to above, the appellant was first reviewed by Mr Sanderson, who reported on 28 May 2009 shortly following the injury. He concluded, with reference to the radiological evidence: “Graeme has suffered a soft tissue injury to an osteoarthritic knee”
[32]
Accordingly, there was clear and early evidence that the appellant suffered from a pre-existing degenerative condition. Mr Sanderson also gave an early indication that the appellant suffered only a minor injury on 12 May 2009 in the nature of a soft tissue injury. 
[33]
Subsequently, the appellant was referred to Mr Laws, who investigated the appellant's condition further, obtaining an MRI scan. In a report of 25 June 2009 Mr Laws highlighted the evidence of underlying changes in the appellant's knee. Subsequent to receipt of the MRI results dated 9 July 2009, Mr Laws reported: 
“His MRI has been done, a copy is enclosed. It suggests there may be a tear of his meniscus on the medial side posteriorly and also quite a bit of oedema within the bone, which may be a combination of bone bruising and possibly some changes. It also suggests a degree of swelling and a partial tear of the medial ligament. Clinically, Graeme's knee is improving, it is certainly not good enough to get him back to full time building at the moment but he might be able to start doing some lighter duties and some insurance work. I have said I am uncertain how much of the medial pain is from the meniscal tear or all the other changes. ”
[my emphasis]
[34]
In this report of 23 July 2009, Mr Laws attributes at least some of the appellant's ongoing symptoms to a pre-existing degenerative condition. However, he is unable to apportion symptoms between the degenerative condition and a minor meniscal tear visible on the MRI scan. In his next report of 20 August 2009, he opines that he no longer considers the meniscal tear to be a major contributor in the appellant's ongoing symptoms, stating: 
“As I have said in the past, looking at his MRI scan, I think the meniscal tear is probably not the major contributor to his discomfort, which is probably this bone oedema/bruising and certainly the discomfort on stretching suggesting still some ongoing medial ligament concern. ”
[35]
Mr Laws appears to now attribute ongoing symptoms to a ligament/strain, a soft tissue injury. He does not consider ongoing symptoms to be in relation to a meniscal tear. However, he no longer makes any reference to the degenerative condition which he highlighted in his earlier reports. In an additional report of 1 October 2009, he states: 
“On the balance of probabilities he has had a soft tissue injury as Mr Sanderson suggested and I agree with this, on top of an osteoarthritic knee. The findings when I saw him of discomfort and pain on stressing the medial ligament and the MRI changes suggest there has been a degree of stretching of this and with the underlying bone changes, a bone bruise, I think we would have to say that there probably has been a significant injury. 
Given that bone bruises and medial ligament injuries can often take many months to settle, at the moment it would be my opinion that it would be hard to disprove that his ongoing symptoms aren't due to the original injury rather than the known osteoarthritis changes underneath it. ”
[my emphasis]
[36]
In that report Mr Laws conceded that the appellant suffers from a soft tissue injury only, and that this injury has superimposed on a pre-existing osteoarthritic knee. However, he again finds it difficult to distinguish between the original injury and the pre-existing degeneration, in a causal sense. Mr Laws' further report of 19 November 2009 does not really take matters further. 
[37]
Due to the uncertain nature of the evidence from Mr Laws, ACC obtained a further report from Mr Otto, who considered all of the radiological and clinical information to date, and provided a report on 7 October 2010. Mr Otto has the benefit of providing an overview of the file and has considered both MRI reports including the latter one of 10 November 2009. He states: 
“The records are demonstrating therefore that there has been improvement with time and the radiological information is suggesting that there is improvement in the medial ligament strain and changes in the patella mechanism, but the incomplete resolution of his knee symptoms is now more likely to relate to the established arthritis in the medial joint compartment, noting the significant improvement on the MRI scan, from the soft tissue (medial and patella ligament components) of the original injury. 
The clinical situation therefore is that he has had an injury to an already arthritic left knee and has confirmation of involvement of the medial ligament and the patella mechanism, with established changes in the meniscal compartments that may be of longstanding, noting the cystic changes in the posterior horn of the medial meniscus. He has not had the definitive arthroscopic examination and direct inspection of the articular surfaces which will assess the grading of the degenerative change within the knee joint, and give the ultimate clinical assessment of the likely progression of the changes towards additional surgery in the future. The records suggest that he is waiting to have an arthroscopic examination at this time. 
The weight of the evidence is towards a significant injury to the medial compartment of the left knee that has gone on to improve from a radiological standpoint, with the interview MRI scans taken three months apart, and the expected time frame for recovery in a medial ligament injury of a medial ligament sprain without rupture, is of the order in a major weight bearing joint, of three months, with a little latitude of an additional month, given the demands that he would have in his building activities, but this case is complicated by the presence of pre existing degenerative changes within the medial joint compartment of the knee, and the ongoing symptoms are very likely to be reflecting the underlying degenerative changes now and resolution of the ligamentus injuries radiologically, is almost complete. 
It is highly probable that ongoing disability and medial joint compartment pain and changes in the function of the left knee, now are more accurately reflecting the pre existing degenerative changes than the effect of the injury, which is likely to be spent, and it is well established that when the degenerative processes are present, and the injury is superimposed upon them, the resolution may be incomplete and certainly the recovery process is attenuated because of those pre existing changes. That is the clinical situation that exists in this case. ”
[my emphasis]
[38]
Mr Otto goes on to respond to particular questions put to him, stating: 
“1.
In my view, what is the diagnosis of Mr Adams condition? 
As outlined, the actual history of the injury event is not clearly described, but assumed from the rough working areas in which he carried out his job as a builder. Initially he was assumed to have mainly osteoarthritis in the medial joint compartment, but the MRI scan has demonstrated additional components of oedema and swelling and changes in the medial ligament as well as in the patella mechanism anteriorly, and those changes are likely to have come from a direct valgus strain of the knee, so that there is a super imposed medial ligament strain on a joint that contains medial joint compartment degenerative changes. The diagnosis is a super imposed medial ligament strain in a knee showing degenerative medial joint compartment arthritis
2.
Does Mr Adams suffer from a pre-existing degenerative condition? 
The answer is yes. Clearly the AP views of the knee are showing medial joint compartment narrowing. There are osteophyte formation at the margins of the femur, significant loss of articular cartilage height, seen more clearly on the MRI scan, and the changes in that joint are of medial joint, compartment arthritis. 
3.
Are Mr Adam's ongoing symptoms in relation to an injury which occurred on the 12th May 2009 or in relation to something else? 
As outlined the interview MRI scans have given an index to the progression of the recovery in the terms of the swelling and the oedema changes in the medial ligament particularly, and the amount of oedema that was seen in the femoral condyle and tibia. The second MRI scan approximately three months after the first, is demonstrating ongoing changes in both articular surfaces at the knee which are now more accurately reflecting the underlying degenerative changes which the oedema from the injury component in the ligament and in the greater part of the condyle and tibial plateau, having resolved. 
It is more likely that those changes now are more accurately reflecting the pre existing degenerative arthritis within the knee joint. 
4.
Has the injury of the 12th May 2009 resolved? 
The answer to this is that radiologically there is evidence that is well towards healing. The clinical separation between the arthritic component and the ligamentous injury can be difficult, but the clinician would be persuaded by the radiological changes, that there was significant improvement and would be now focusing in the medial joint compartment arthritis as the principal generator of the ongoing symptoms. 
5.
What in your view is the cause of Mr Adams ongoing symptoms? 
The ongoing symptoms at this time are more likely to be accurately reflecting the underlying degenerative process within the medial compartment of the left knee, given the information of improvement and almost complete resolution of the changes in the medial ligament, and the original bone oedema that was present in the first scan
If an arthroscopic examination is to be completed, photographs of the articular cartilage will give the clearest definition between grade 1 and grade 3 changes. I suspect there is going to be at least grade 3 changes in some parts of the weight bearing femoral condyle in this man's medial compartment of the left knee. ”
[my emphasis]
[39]
I agree with Ms Becroft that Mr Otto's report makes it clear that: 
[a]
the appellant suffers from a pre-existing degenerative condition; 
[b]
the appellant suffered a soft tissue injury to his knee which has resolved over time; 
[c]
on balance of probabilities, the appellant's ongoing symptoms more accurately reflect a pre-existing degenerative condition rather than a soft tissue injury the effects of which are now spent. 
[40]
I have the evidence of three orthopaedic surgeons (Messrs Sanderson, Laws, and Otto). All indicate that the appellant suffered a soft tissue injury in May 2009, and all concede that the appellant suffered from a pre-existing degenerative condition. Mr Sanderson appears to place emphasis on the pre-existing degenerative condition, Mr Laws is unable to clearly differentiate between the injury and the degenerative condition. Mr Otto provides the most comprehensive report having viewed all of the relevant information and radiological evidence. On a balance of probabilities, he considers the appellant's ongoing symptoms to be wholly in relation to the pre-existing degenerative condition. 
[41]
I find that the weight of evidence supports ACC's said decision to suspend entitlements. On the information it then held, ACC was entitled to decide that the appellant was no longer entitled to entitlements under the Act. 
[42]
Accordingly, the appeal is dismissed. 

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