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Accident Compensation Cases

Parkes v Accident Compensation Corporation (DC, 19/07/11)

Judgment Text

INTERIM DECISION OF JUDGE P F BARBER 
Judge P F Barber
The issue 
[1]
Was ACC correct on 20 April 2009 to decline to fund surgery for the appellant's right shoulder rotator cuff tear? 
[2]
The surgery need as at 2009 was claimed to relate to an injury suffered by the appellant on 29 October 2002 some six and a half years earlier as referred to below. 
Background 
[3]
The appellant has cover for a right shoulder rotator cuff sprain sustained on 29 October 2002. The accident is described on the ACC45 claim form as “struck right shoulder on corner door, pain since”. She was first seen on 5 November 2002 in relation to that accident by her GP who recorded the following clinical note: 
“Right shoulder sore ANT EVTS 
An abduction 
Some pain on abduction hand and ENVT's behind back. ”
[4]
On 20 November 2002 the appellant was referred for x-rays and an ultrasound. The x-ray report recorded: “There are small erosions in the upper outer humorous, and sclerosis and concavity on the under surface of the acromian process. These appearances are suspicious for supraspinatus tendon degeneration.” 
[5]
The ultrasound report noted: 
“There is marked diminution in depth of lateral 15mm of the right supraspinatus tendon [1 to 2mm depth as opposed to 5.6mm on the asymptomatic left side]. There is associated concavity of the superior surface of the right supraspinatus tendon in this region. The tendons for long head of biceps, subscapularis and infraspinatus appear normal. No free fluid is shown in or around the right shoulder joint. 
Conclusion: The appearances ultrasonographically are those of a full thickness lateral right supraspinatus tendon tear. ”
[6]
No further treatment was obtained by the appellant in relation to this injury of 29 October 2002. 
[7]
In September 2008, the appellant attended her GP once again complaining of pain in her right shoulder. She was referred to Mr Andrew Herbert, Orthopaedic Surgeon, who assessed her and provided an initial report on 28 October 2008. He indicated that her pain followed an injury in 2002 and that her condition had deteriorated in recent times. He was of the view that she suffered from a chronic supraspinatus tear and considered that it was likely repairable by surgery. He then arranged for an MRI scan to further investigate the pathology. 
[8]
The MRI scan was undertaken on 4 November 2008, and the subsequent scan report concluded: 
“Complete width full thickness tear of the supraspinatus tendon with retraction beyond 12 o'clock and moderate fatty infiltration and atrophy of the muscle. 
Full thickness tear of all but the most posterior fibres of the distal infraspinatus tendon and moderate fatty infiltration and mild atrophy of the muscle. 
Virtually full thickness tear of the intra articular portion of the long head biceps tendon with tendon retraction into bicipital groove. ”
[9]
After reviewing the results of the MRI scan, Mr Herbert provided a further report on 19 November 2008. He again indicated that the appellant had suffered a full thickness tear of the supraspinatus following injury in 2002, as well as a tear of the superior part of the infraspinatus tendon. With respect to the original tear, Mr Herbert indicated that it was “irreparable”. With respect to the other tear, he stated “I suspect this is a more recent pathology as the secondary change in the cuff musculature is less marked here. It is probably why the shoulder has been more symptomatic lately.” 
[10]
On 27 November 2008, Mr Herbert completed an Assessment Report and Treatment Plan requesting funding for an acromioplasty and repair of the superior infraspinatus and posterior supraspinatus. 
[11]
Upon receipt of the claim, ACC referred the matter, along with the available medical information, to its Clinical Advisory Panel to consider the issue of causation. On 9 April 2009 Dr Mike Sexton, General Surgeon commented on behalf of the Panel: 
“There is reference to a small right supraspinatus tear seen on ultrasound in 2002. There is now a large retracted tear of right supraspinatus extending into infraspinatus and also of the long head of bicep tendon. There is an associated narrowing of the sub acromial space and wasting of the respective muscles. It would be difficult to establish a causal link between the covered event and the current need for surgery. ”
[12]
On 28 April 2009 ACC declined the appellant's request for elective surgery. 
[13]
On 12 May 2009 Mr Herbert wrote to the Elective Surgery Unit asking for clarification as to how it was established that the appellant's need for surgery was not primarily as a result of the injury sustained on 29 October 2002. He also indicated that the appellant showed early evidence of having sustained a small full thickness tear of the supraspinatus tendon which had progressed in size over time. He stated “there is in my view no doubt that Mrs Parkes's current pain and disability result directly from the progression of a tear, which was initiated following trauma during injury in 2002.” 
[14]
The Panel commented again on 11 June 2009 indicating: 
“CAP reviewed this claim including the letter from the specialist. We noted that the imaging from 2002, two weeks after the date of the described event, reported small erosions in the upper outer humorous and sclerosis and concavity on the surface of the acromian process, suspicious for supraspinatus tendon degeneration. A tear of the supraspinatus tendon was confirmed on ultrasound. These appearances are consistent with rotator cuff disease which is likely to have predated the covered event. We also noted that the mechanism of injury is unlikely to have produced rotator cuff disease. The comment attributed to Yamaguchi relates to the progression as a natural process of tendon tears which may increase in size without any further injury. We think it is unlikely that there is a causal link between the covered event and the need for surgery now. ”
[15]
On 10 June 2009 the appellant applied for a review of ACC's decision. On 23 June 2009 ACC confirmed its original decision of 28 April 2009 declining the claim for surgery costs. 
[16]
The Review proceeded on 28 October 2009 (and concluded 21 January 2010) before Ms S Reddy, Reviewer, who issued a decision on 29 January 2010 dismissing the review application. Inter alia, she found: 
“•
The ultra sound imaging from 2002 noted a small full thickness of the supraspinatus tendon, and associated with changes consistent with supraspinatus tendon degeneration (erosions in upper outer humorous, sclerosis, concavity on the surface of the acromion process). These changes were noted within 15 days of the stated accident. 
Further the ultra scanographer also stated that the changes were suspicious for supraspinatus tendon degeneration. 
The surgery procedures for which funding has been requested now is required to treat a right sided supraspinatus tendon tear, infrasupraspinatus tendon tear, acromioplasty, and bursectomy. It has to be shown that there is sufficient evidence to show on balance of probabilities that the need for this surgery arises as a consequence of the original injuries. 
The imaging from 2002 failed to show any abnormality in the infrasupraspinatus or long head of biceps tendon. 
The only tear that ACC could possibly be liable to repair is that of the supraspinatus tendon which was noted on imaging following the 2002 accident. 
In my view the weight of the medical evidence is that it is more likely than not that the supraspinatus tear is part of a degenerative rotator cuff pathology. As noted earlier the ultra scanographer opined that the changes were suspicious for supraspinatus tendon degeneration. 
The accident mechanism described is unlikely to cause an acute full thickness supraspinatus tendon tear as outlined by ACC in order for a tear to a tendon to occur through an accident significant wrenching mechanism would be required to load the tendon over and above its maximal loading capacity. A direct blow to the shoulder would be unlikely to generate such a required force/mechanism. 
The treating specialist accepts that the tear of the infrasupraspinatus tendon is indicative of a more recent pathology. In relation to the supraspinatus tendon it is Mr Herbert's opinion that it is as a result of the 2002 injury. However in this regard I prefer to adopt the opinion provided by ACC's clinical advisory Panel. Mr Herbert has only provided a temporal link to the 2002 injury in his letter. He states that: ‘I saw this claimant for an initial assessment 28/10/08 following referral from her family practitioner. Her shoulder injury had been causing problems for several years. The problems had been related to an injury in 2002’. However he has not addressed the other changes seen on the imaging. It is also well known that a progression of tears can be as a result of degenerative changes over time. Mrs Parkes has sustained no further injuries and there is a clear progression of tears. Since 2002 she has had minimal treatment. Accordingly when addressing the question of whether the surgery is required wholly or substantially and a result of the 2002 injury I find that it is not. ”
[17]
The appellant has subsequently filed a Notice of Appeal to this Court and an additional report on 29 March 2010 from Mr Herbert advising that the surgery has since gone ahead and was surprisingly straightforward. Mr Herbert stated “I think given the surgical findings that the relative ease of the repair does provide us with some evidence that the majority of the tendon tear occurred relatively recently.” 
[18]
The point about that 29 March 2010 letter from Mr Herbert to the appellant's GP is that it indicates that the surgery in issue must have taken place on about 14 March 2010 to repair the appellant's rotator cuff. No one seems to have since asked Mr Herbert whether having performed the surgery, he can formulate reasonably positive views on causation of the injury and the extent and effect of any degeneration. 
Submissions for the appellant 
[19]
I appreciate the thoughtful written and oral submissions from Mr Robinson. He explained that the 29 October 2002 accident was “when the barn doors blew shut jolting her right arm and striking her right shoulder as she attempted to stop them from slamming shut on her”
[20]
The appellant was too busy to take time of work and hoped the injury would heal itself. However, she had ongoing problems with her shoulder which deteriorated when her work activities became full time farming. Mr Robinson referred to the tear in her shoulder progressing in size since the original injury. He analysed the medical evidence, which I have referred to, and put it that it can be taken from Mr Herbert's evidence that his opinion is that the appellant's need for surgery was primarily the result of the injury of 29 October 2002; that a small full thickness tear has progressed in size; and has come about from that injury of 29 October 2002 on the balance of probabilities. 
[21]
I was told that, at the time the accident happened, the appellant was working in the office of the family business (which I understood to be agricultural contracting); and that in 2006 the family business was sold, and she and her husband went full time farming and feeding out hay and other farm work caused the pain in her shoulder/arm to become worse. At the time of the accident the appellant was aged 48 and had always led a very physical life. Apparently, at the time of the injury she worked for her husband's contracting business and did all its office work. After the injury, she simply worked through the pain as she was very busy. It was only when they sold the contracting business and she returned to farming that the then untreated shoulder injury made farming tasks unbearably painful. 
[22]
There is no explanation as to how a small tear in 2002 would so progress over a six year period or so. Mr Robinson submits for the appellant that the tear appears to have progressed in recent times and would have been caused by the heavy farming work worsening the previous tear. He accepts that, as a 48 year old woman the time of the injury, one would expect her to have some shoulder degeneration especially having led a fairly heavy physical life. The particular submission of Mr Robinson is that while at the time of the accident on 29 October 2002 the appellant probably had a small amount of degeneration in the relevant shoulder joint, the actual small tear of the tendon was caused by the accident and that in general the injury has not been wholly or substantially due to degeneration. 
Discussion 
[23]
Pursuant to Part 1 of Schedule 1 of the Accident Compensation Act 2001, ACC is liable to pay or contribute to the costs of entitlements, such as treatment for a personal injury for which the claimant has cover. Section 26(2) and 26(4) generally exclude from the definition of personal injury any injury caused wholly or substantially by either a gradual process, disease, infection, or the ageing process, but with some exceptions such as work-related such events or treatment injury. 
[24]
ACC has declined to meet the costs of the appellant's surgery for a supraspinatus tendon tear repair on the basis that the surgery was not necessary as a result of the covered personal injury i.e. the rotator cuff sprain which occurred in 2002. 
[25]
The issue is largely one of causation about which there is specialist medical evidence available. 
Medical Evidence 
[26]
The available evidence comes from the Panel and Mr Herbert, the treating surgeon. 
[27]
Ms Becroft submitted that the Panel has provided the most cogent and thorough reasoning to support the opinion that the surgery was not required for any injury-related condition. Mr Herbert is the only specialist who has examined the appellant. This does not necessarily provide him with any greater advantage in relation to the medical issues. The Panel do not dispute Mr Herbert's clinical findings. Divergence of opinion is only about the interpretation given to the radiological evidence, and literature studies relied upon. 
[28]
X-rays and ultrasounds taken of the appellant's right shoulder just weeks following the accident on 20 November 2002 showed signs of degeneration. The x-ray report of the right shoulder indicated: “There are small erosions in the upper outer humorous, and sclerosis and concavity on the under surface of the acromian process. These appearances are suspicious for supraspinatus tendon degeneration.” [My Emphasis] 
[29]
Similarly, in the ultrasound report the following note was made: 
“There is marked diminution in depth of lateral 15mm of the right supraspinatus tendon [1 to 2mm depth as opposed to 5.6mm on the asymptomatic left side]. There is associated concavity of the superior surface of the right supraspinatus tendon in this region. The tendons for long head of biceps, subscapularis and infraspinatus appear normal. No free fluid is shown in or around the right shoulder joint. 
Conclusion: The appearances ultrasonographically are those of a full thickness lateral right supraspinatus tendon tear. ”
[My Emphasis]
[30]
The early radiological evidence shows a clear picture of a degenerative condition which, as Ms Becroft submits, having already been established in the short weeks following the accident must have pre-existed that accident. The injury sustained by the appellant in October 2002 cannot have been a significant one, given that the appellant did not claim or receive any additional treatment following it. She did not attend her GP in relation to the present claim again until 2008, about six years after injury. 
[31]
The Panel reviewed the file on two occasions. The first report is dated 9 April 2009 and is authored by Mr Sexton who indicated: 
“There is reference to a small right supraspinatus tear seen on ultrasound in 2002. There is now a large retracted tear of right supraspinatus extending into infraspinatus and also of the long head of bicep tendon. There is an associated narrowing of the sub acromial space and wasting of the respective muscles. It would be difficult to establish a causal link between the covered event and the current need for surgery. ”
[My Emphasis]
[32]
Mr Sexton highlighted the extent of the appellant's problems as it is evidenced on the MRI scan in 2009, a situation that is far more serious than that which was visible on the x-rays and ultrasound in 2002. Mr Sexton also identified the difficulty in establishing a causal link between the minor injury described in 2002, and the subsequent need for surgery. 
[33]
Mr Sexton provided a further report on 11 June 2009, stating: 
“CAP reviewed this claim including the letter from the specialist. We noted that the imaging from 2002, two weeks after the date of the described event, reported small erosions in the upper outer humorous and sclerosis and concavity on the surface of the acromian process, suspicious for supraspinatus tendon degeneration. A tear of the supraspinatus tendon was confirmed on ultrasound. These appearances are consistent with rotator cuff disease which is likely to have predated the covered event. We also noted that the mechanism of injury is unlikely to have produced rotator cuff disease. The comment attributed to Yamaguchi relates to the progression as a natural process of tendon tears which may increase in size without any further injury. We think it is unlikely that there is a causal link between the covered event and the need for need for surgery now. ”
[My Emphasis]
[34]
In this further report, the following is highlighted: 
The pre-existing nature of the degenerative condition evident on radiological scans just two weeks following injury; 
The small tear evident on 2002 was consistent with the pre-existing degenerative condition; 
The accident event itself, as it is described, was not significant enough to have produced or resulted in a degenerative condition. 
It is unlikely that there is a causal link between the minor event in 2002 and the need for surgery several years later. 
[35]
The appellant relies on reports from her treating surgeon, Mr Herbert, who filed the initial ARTP in November 2008. In that report Mr Herbert attributed the appellant's shoulder condition to the accident in 2002 and described the history as follows: 
“Sonya describes pain well localised to the deltoid region of her right shoulder for several years now. It follows an injury back in 2002. Ultrasound at that point has demonstrated a small full thickness tear of the supraspinatus tendon. 
Her shoulder has deteriorated over the last year or two. There are a number of simple activities in the course of her farming work, which are difficult ”
[36]
Following this initial report, an MRI was obtained. The results of the MRI showed a full thickness tear of the supraspinatus tendon, a full thickness tear of all but the most posterior fibres of the infraspinatus tendon and a, virtually, full thickness tear of the intra articular portion of the long head of the biceps tendon. Accordingly, the radiological picture as at 2002 is much different from that on the initial x-rays and ultrasounds in 2002. The current scan shows evidence of widespread tearing. 
[37]
Ms Becroft submitted that it is difficult to attribute such a widespread condition to a minor accident in 2002 and that it is more plausible that such a progression is related to the acknowledged degenerative condition. That seems likely and logical to me. The Panel makes it clear that this degeneration must have pre-existed the 2002 accident, given the fact that it was already established just weeks following that accident, and given the minor nature of the accident itself. 
[38]
In a 19 November 2008 report, Mr Herbert reviewed the results of the MRI and stated: “I suspect this is a more recent pathology as the secondary change in the calf musculature is less marked here. That is probably why the shoulder has been more symptomatic lately.” I agree with Ms Becroft that Mr Herbert's comments here seem inconsistent with the opinion which he has earlier expressed, namely, that the appellant's ongoing symptoms are causally related to the 2002 injury. Mr Herbert is clearly referring to a “more recent” pathology and is unclear what that pathology is and how it might relate back to the 2002 injury. 
[39]
In a further report of 12 May 2009, Mr Herbert again appeared to indicate the view that the appellant's symptoms were related to the 2002 injury. He stated: 
“Ultrasound demonstrated a small full thickness tear in the supraspinatus tendon. I would refer you to the literature from Ken Yamaguchi in Washington which confirms that up to a third of these small full thickness tears will progress in size. This is indeed what appears to have happened in this case. 
There is in my view no doubt that Ms Parkes's current pain and disability result directly from the progression of a tear which was initiated following trauma during injury in 2002. ”
[40]
With respect to this report from Mr Herbert, Ms Becroft put it that Mr Herbert does not refer at all to the degenerative condition evident on x-rays and ultrasound in 2002 or comment on how it impacts, if at all, on the appellant's condition; and that he also does not provide sufficient advice how, over the course of six years, a small tear can progress into a far more serious clinical picture affecting areas of the shoulder which were previously totally unaffected. 
[41]
Following the surgery, Mr Herbert provided the final report on 29 March 2010 which I have referred to above. I agree with Ms Becroft that this further report from Mr Herbert does not help the appellant's case. Mr Herbert indicates that the problems addressed during surgery appeared to be recent. This makes it even more difficult to link the surgery back to the 2002 injury. 
[42]
The medical evidence shows that only three weeks after the original injury there was clear evidence of degeneration. Accordingly, degeneration must have existed at the time of the original injury and one would expect that only the effect of degeneration would cause the original shoulder tear to progress so much as to require surgery in early 2010. 
[43]
There is no clear or convincing evidence (on the balance of probabilities) that the appellant's surgery was required as a result of the relatively minor injury she sustained in 2002. In the absence of any such evidence, it could be held that ACC was correct to decline the surgery claim and it is likely I shall confirm that decision. Frankly, the Reviewer's reasoning, which I set out above, is perceptive and logical. Since Ms Reddy's Review decision the surgery has taken place and Mr Herbert's letter of 29 March 2010 is to hand, but the case for the appellant has not particularly strengthened. 
[44]
Having said all that, I would have expected the operating surgeon, Mr Herbert, to have ascertained at surgery in March 2010 the extent of the appellant's relevant injury. Perhaps the surgery developed his views on likely causation and relevance of any degeneration. As I have remarked above, no one seems to have asked Mr Herbert whether, having performed the surgery, he can formulate reasonably positive views on causation of the injury and the extent, and effect, of any degeneration. Before I come to a final decision, I seek a short memo at ACC's expense from Mr Herbert on that question. His final report infers progression of a tear rather than a second tear, but does not refer to rotator cuff disease or degeneration. I invite Ms Becroft to organise such a report. 

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