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Accident Compensation Cases

Ingram v Accident Compensation Corporation (DC, 26/09/11)

Judgment Text

RESERVED JUDGEMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 25 May 2010, whereby it declined to fund elective surgery to the appellant's right shoulder on the basis that such surgery was not to treat a medical condition caused by the appellant's right shoulder injury suffered on 27 December 2009, but which was to treat a pre-existing medical condition. 
[2]
The background facts relevant to the issue in this appeal may be stated as follows: 
On 27 December 2009 the appellant, then aged 57 years, was walking through a car-park with a five-year old child, whom she was holding in her right hand. To prevent the child from falling into a drain the appellant lifted him up with her right shoulder and whilst swinging him away from the drain, she experienced severe pain in her shoulder. 
The appellant did not seek medical assistance straightaway, and it wasn't until 6 January 2010 that she consulted her GP, Dr Kernan, because of her ongoing pain. 
A claim for cover was lodged through Dr Kernan with the diagnosis being stated as a sprain of the shoulder/upper right arm. 
The appellant and her husband were involved in a Bed and Breakfast business and she elected to defer any treatment for her injury, other than physiotherapy, until the busy summer period for the business had ceased. 
The appellant stated that she put up with the pain she was experiencing and limited her shoulder movements accordingly. 
In April 2010, an ultrasound of her right shoulder was carried out and this identified right supraspinatus and infraspinatus tendon full thickness tears. 
The appellant was referred by her physiotherapist to Mr Bruce Twaddle, Orthopaedic Surgeon, and he identified her condition as being an acute rupture of the rotator cuff of her right shoulder. 
Mr Twaddle sought approval from the respondent for elective surgery, such surgery being described as “Open acromioplasty and repair, rotator cuff tendons — right shoulder.” 
Mr Twaddle's application was referred to the respondent's Clinical Adviser for Elective Surgery, Dr Sexton, whose opinion was that the appellant's shoulder pathology had been symptomatically aggravated by the injuring event. 
Consequent upon Dr Sexton's advice, the respondent issued its decision on 25 May 2010, declining to agree to fund the elective surgery sought. 
In spite of the respondent's declinature decision, Mr Twaddle carried out the necessary surgery on 17 June 2010 and which surgery successfully treated the appellant's right shoulder injury. 
The appellant sought a review of the respondent's decision and for the purposes of that review a further report was provided by Dr Austen of the respondent's Clinical Advisory Panel, and further comment from Mr Twaddle was also introduced. 
In a decision dated 25 November 2010, the Reviewer found that the evidence was insufficient to identify a causative link between the appellant's shoulder injury and the medical condition for which surgery was sought and carried out. The respondent's primary decision was therefore confirmed. 
For the purposes of this appeal no further specialist medical evidence has been introduced from that which was presented at the review. 
[3]
The medical evidence to which the Court has been referred is as follows: 
“1.
Medical Note by appellant's GP, Dr Kernan, dated 6 January 2010. 
On examination — 
Pain on resisted extension rotation 
Full range of movement, no painful arc 
Imp-mild muscle strain, should settle spont. 
Physio if not. 
2.
Ultrasound of right shoulder dated 16 April 2010 from Horizon Radiology. 
FINDINGS: 
Right Shoulder 
There is a 13 mm long x 23 mm axial full thickness tear involving the supraspinatus and infraspinatus tendons. 
There is fluid within the subdeltoid bursa and the long head biceps tendon sheath. 
The long head of biceps and subscapularis tendons of this shoulder are intact and normal in appearance. 
OPINION: 
1.
Right supraspinatus and infraspinatus tendons full thickness tears. 
2.
Right subdeltoid bursitis. 
3.
Assessment report and treatment plan dated 5 May 2010 from Mr Twaddle. 
This report identified the surgical treatment as being ‘Open acromioplasty and repair rotator cuff tendons, right shoulder’
The description of the surgical procedure was ‘Shoulder acromioplasty rotator cuff repair, two tendons’
The history of the condition was stated as follows: 
‘On 27th December Alison was walking with her 5 year old grandchild when she had to swing him out of the way of a drain using her right arm and twisted. She had immediate onset of right anterior lateral shoulder pain which caused her significant discomfort. She had disruption of her sleep and pain with overhead movement from that time. She has had difficulty using the arm away from the body; like lifting a full kettle, difficulty putting clothes line and difficulty doing up her bra. She has had to box on because she is running a busy B & B, but the pain is now at the point where needs something doing and she is also suffering sleep disruption. 
Onset of symptoms directly relate to the above injury. ’
The diagnostic test and specific diagnosis was stated as follows: 
‘She has had an ultrasound which confirms a large acute tear of her supraspinatus and infraspinatus with no evidence of any degeneration within the tendons. 
Acute rupture rotator cuff right shoulder. ’”
4.
Comment from Dr M Sexton, the respondent's Clinical Adviser. 
‘The presentation and clinical findings do not appear to suggest an acute full thickness tear of the spinate tendons as described in the imaging but suggest that the shoulder pathology has been symptomatically aggravated following the covered event. 
The pathology is consistent with impingement although the imaging report is silent on whether this was sought or present sonologically. ’”
5.
Note from Mr Twaddle dated 17 June 2010. 
This was Mr Twaddle's note of the operation he carried out on the appellant's shoulder on that day. He stated, inter alia, as follows: 
‘There was an obvious avulsion injury of supraspinatus and infraspinatus leaving a soft tissue cuff on the humeral side where the tendon had been pulled off. This cuff was resected and a burr used to smooth out the bony insertion of these 2 tendons. The damaged edge of the retracted tendon was incised back to bleeding viable soft tissue. ’”
6.
Comment from Dr M Austen dated 9 August 2010. 
This was Dr Austen's report on the medical evidence up to and including Mr Twaddle's operation notes. He stated as follows: 
‘It would appear most unlikely that if lifting a grandchild caused tears of supraspinatus and infraspinatus than the client would exhibit a pain free ROM 10/07 after such an accident. It is the natural history of degenerative tendon disease for the tendon to tear by degeneration over time and for the client to develop a normal ROM over time in spite of having tendon tears present. 
Bursitis is caused by degeneration of fibrosis of the bursa. See CAP comment on bursal pathology without taking biopsy samples of the tendons Mr Twaddle would not know. Mr Twaddle had to repair damaged ends of retracted tendons. Please note attached comments on the known histopathology of symptomatic rotator cuff tears. 
In terms of frozen shoulder please refer to CAP comment on frozen shoulder. 
Soft tissue is a common finding at the insertion of the cuff — the tendon tears away leaving a combination of fibrocartilage. This is a normal finding and is not an indication of aetiology. ’”
7.
Report from Mr Twaddle dated 23 August 2010 in response to Dr Austen's comments. 
‘Alison's history is typical of someone who has injured a tendon and undergone the classical process of failure and fluctuation in symptoms typical of complete rupture of a tendon. These patients usually describe a specific event where they are aware some injury has occurred. This initial injury does not always mean they are unable to continue the activity they are performing but often when they cool down they are much more aware of the “acute” symptoms of pain, some swelling and restriction of activity. They then return to sport or activity after a variable period of time and seem to be then predisposed to a recurrence of injury or ongoing symptoms of pain if they exceed the threshold of tolerance the injured tendon appears to have. The stages of these symptoms are typically those described by Blazina for patellar tendinopathy but are similar for all tendon injuries of this type. ’”
Decision 
[4]
The Court received extensive submissions from both parties and essentially appeals of this nature boil down to a consideration of the medical evidence as to what it more likely establishes on the balance of probabilities. 
[5]
The background is that the appellant had not experienced any problems or pain with her shoulder prior to this injuring event. It is also the case that this situation with her right shoulder was not that of a partial tear of her tendon, but complete tears of both the supraspinatus and the infraspinatus tendons. 
[6]
It was also identified by Mr Twaddle, both from the ultrasound and then subsequently from the operation itself, that there was no evidence of any degeneration in those tendons. This seems to be in direct conflict with the opinions of Dr Sexton and Dr Austen that the tendon tears were part of a degenerative process which had been ongoing prior to the injuring event. 
[7]
When the Court is presented with evidence from a specialist who has carried out surgery on the particular injury, then I find that it would take significant reasoning for the assessment of that surgeon to be put to one side and for the evidence of persons who, at most, are making what they consider to be informed opinions based on general medical reasoning. This was certainly the case with Dr Austen, who presented a wide-ranging report of a general nature, which he sought to advance as the basis for his opinion. 
[8]
The surgery for which consent was sought was to repair the rotator cuff tendons of the right shoulder and it was those conditions which were identified and surgically treated. 
[9]
Mr Twaddle identified that there was an obvious avulsion injury, and avulsion is a medical term for the forcible tearing away of one tissue from another. The circumstances of the onset of the appellant's pain was clearly a circumstance which could give rise to an avulsion injury, and I am satisfied on the balance of probabilities that the medical condition for which surgery was sought was a condition caused in that injuring event. 
[10]
For the foregoing reasons, therefore, I find that the respondent was wrong to decline to agree to fund such surgery, and that decision is now revoked and I direct that the respondent make payment to the appellant of the costs of the surgery which Mr Twaddle carried out in respect of her covered injury. 
[11]
The appellant, representing herself, I make no order for costs, but the respondent is to make payment to her of any qualifying disbursements. 

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