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Accident Compensation Cases

Gough v Accident Compensation Corporation (DC, 24/02/12)

Judgment Text

M J Beattie Judge
The issue in this appeal arises from the respondent's decision of 21 January 2010, whereby it declined to approve funding for elective surgery sought by the appellant, which surgery was stated as being “Shoulder acromioplasty cuff repair right shoulder”
The background facts relevant to the issue in this appeal may be stated as follows: 
On 5 July 2008 the appellant, then aged 52 years, suffered injuries to her right shoulder, right hip and right arm, when she slipped on the steps to her deck and fell to the ground. 
The appellant stated in evidence that she began to experience severe pain in her shoulder from the moment of that fall. 
Because the shoulder pain did not resolve the appellant consulted her GP on 8 July 2008 and a claim for cover was lodged for her right shoulder injury. 
On 9 July 2008 an ultrasound of the appellant's right shoulder was obtained and this identified a partial thickness tear of the supraspinatus tendon. Further reference to this ultrasound will be made later. 
The appellant received treatment for her injury by way of steroid injections and physiotherapy, but the condition of her shoulder did not improve, and by mid-2009 her shoulder pain had worsened. 
In September 2009 the appellant underwent a second ultrasound scan on her right shoulder and this scan identified that the appellant was now suffering from a full thickness tear of her supraspinatus tendon. 
The appellant's GP referred her to Mr B L Krause, Orthopaedic Surgeon, for assessment and consideration of treatment, and Mr Krause saw and examined the appellant on 2 November 2009. 
Mr Krause identified that the appellant's shoulder required surgical treatment, and on 6 November 2009 he made application to the respondent for approval of surgery in his Assessment Report and Treatment Plan. 
The respondent referred Mr Krause's application to Mr Ray Fong, Orthopaedic Surgeon, of the respondent's Clinical Advisory Panel, and he gave his advice as follows: 
“Leonie is suffering from her R shoulder subacromial impingement syndrome — a gradual process condition rendered symptomatic. ”
It was consequent upon Mr Fong's advice above that the respondent issued its decision of 21 January 2010 declining to approve the funding for the surgery. 
The appellant sought a review of that decision and for the purposes of that review further reports from Mr Krause were introduced, as was a response from Mr Fong. 
The review hearing took place in March 2011 at which the appellant was represented by counsel and at which the appellant gave evidence of her ongoing pain from the date of the accident. 
In a decision dated 7 April 2011, the Reviewer, Mr P Wilson, ruled that he preferred the advice and opinion of Mr Fong to that of Mr Krause, and he therefore confirmed the respondent's decision to decline to fund the proposed surgery, he ruling that the surgery was to treat a degenerative condition which the fall had caused to become symptomatic. 
For the purposes of the appeal to this Court no further medical evidence has been introduced by either party. 
The medical evidence which has been presented for this appeal consists of the two ultrasound reports on the appellant's right shoulder and the reports of Mr Krause and Mr Fong respectively. Details of that evidence is as follows: 
X-ray and Ultrasound of appellant's right shoulder taken on 9 July 2008. 
Bone density is normal and alignment is anatomical. There is mild degenerative change particularly at the ACJ. No fracture of significant focal lesion of bone identified. 
Ultrasound examination demonstrates a partial thickness tear at the subacromial surface of supraspinatus measuring 3 x 2 x 2 mm. The rotator cuff is otherwise unremarkable as is the biceps tendon within the bicipital groove although there is a small biceps tendon sheath effusion. The subacromial bursa is not grossly thickened or fluid distended and although the patient demonstrates restricted movement, no subacromial bunching/impingement is identified at this time. 
Mild degenerative change and a partial thickness tear supraspinatus ”
X-ray and Ultrasound report dated 2 September 2009 
The biceps tendon is homogeneous in echotexture and located within the bicipital groove, with a moderate amount of fluid within the biceps tendon sheath. No abnormality of the subscapularis tendon is seen. 
There is a full thickness supraspinatus tendon tear measuring up to 1.2 cm wide with focal flattening of the convex upper border of the tendon. 
No abnormality of the infraspinatus tendon is seen. There is some impingement demonstrated on abduction with thickening of the subacromial bursa. 
In comparison to the prior study of 9/7/08, the supraspinatus tendon tear has converted into a full thickness tear. Subacromial bursal impingement is present. ”
Assessment Report and Treatment Plan by Mr Krause dated 6 November 2009. 
Relevant statements from that Assessment Report and Treatment Plan are as follows: 
“This lady had a fall with no problems with this shoulder prior to the fall. The ultrasound has shown tendon pathology consistent with impact. 
The ultrasound done on 9 July indicates a partial thickness tear, ultrasound done 2 September 2009 indicates a full thickness tear. I have reviewed the ultrasound from 2008 and I think there is a suspicion that there is a full thickness tear there as well. ”
Mr Krause identified a specific diagnosis as being “torn rotator cuff R shoulder” and the surgery to treat that condition was stated as being “Shoulder acromioplasty to repair right cuff”
Comment from Mr Fong of respondent's Clinical Advisory Panel dated 11 January 2010. 
Mr Fong had the details provided by Mr Krause and the appellant's GP, and he also had details of an injury which the appellant had suffered to her right shoulder in October 2004, which was identified as a sprain of the infraspinatus tendon. Mr Fong noted the two ultrasound reports and that the supraspinatus tear had converted into a full thickness tear, and he then gave his opinion as set out above. 
Report from Mr Krause dated 13 December 2010 to John Miller Law. 
Mr Krause stated, inter alia, as follows: 
“ … I believe Mrs Gough's pathology has been caused at the time of her fall in 2008. She has had a tear of the supraspinatus tendon at that time. Whether this is partial or full thickness we will not be able to answer, other than to say that by 2009 it was certainly full thickness. It was either full thickness all the way along and this was not demonstrated on the ultrasound, or the tear has progressed. 
She has no record of symptoms in this shoulder prior to her fall. There is the comment from the radiologist on September 2009 that she had subacromial bursal impingement, this is not representative of a functional impingement. During this test the radiographer lifts the arm to 90 degrees, or thereabouts, to see whether the bursa buckles, and therefore ‘impinges against the acromion’. This is I think regarded by most radiologists now as not a true representation of impingement as it is a very artificial situation. 
I believe, on the balance of probabilities, there is a cause and effect relationship between Mrs Gough's injury on 5 July and her right rotator cuff tear. 
I believe there was a specific injury on 5 July. She fell onto the shoulder and with the sudden impact muscle contracts and tears. ”
Further report from Mr Krause dated 22 December 2010 to John Miller Law. 
Mr Krause answered some questions from counsel, the answers being as follows: 
By cause and effect relationship, I mean that the fall in 2008 was either substantially or entirely the cause of her rotator cuff tear. 
The evidence is that she has had a fall which would be consistent with damaging her rotator cuff, and the second ultrasound, which clearly shows a full thickness tear, whereas the first has been reported as a partial thickness tear. It is difficult and not entirely reliable to compare ultrasounds as the view is almost never the same, and I also questioned in my earlier letter whether the first ultrasound in 2008 showed more than a partial thickness tear, but certainly the second one convincingly showed a full thickness tear, which if it wasn't there in 2008, is an extension, again consistent with rotator cuff injury. 
I think on the balance of probabilities, the injury entirely or substantially caused Mrs Gough's rotator cuff tear, the symptoms of which have led to her need for surgery. 
Further comment from respondent's CAP dated 11 February 2011. 
In this report Mr Fong commented on some of the statements made by Mr Krause. He stated, inter alia, as follows: 
As a result of Mr Krause's further correspondence, the respondent sought an updated opinion from the Clinical Advisory Panel. The Clinical Advisory Panel, again chaired by Mr Fong, produced a report on 11 February 2011. In this report it was said: 
“I do not agree with the statement ‘She has no record of symptoms in this shoulder prior to her fall’ - this is contrary to the well documented past R shoulder condition 4 years previously …  
I do not agree with the statement “ … the radiographer lifts the arm to 90 degrees to see whether the bursa buckles & therefore ‘impinges against the acromion’ … - this is a misrepresentation of what is in the [ultrasound] report of 2/9/2009 - which stated ‘there is some impingement demonstrated on abduction with thickening of the subacromial bursa … conclusion subacromial bursal impingement is present’ …  
Modern [ultrasound] equipments allows accurate measurement of the soft tissue structures such as the subacromial bursa to the accuracy of 0.1 mm. The sonographer can measure the resting thickness of the SASD bursa … then the SASD bursa is scanned dynamically & the thickness is then again measured … the conclusion of impingement is on both clinical and sonographical impingement … I have no doubt that this conclusion is arrived at with deliberation & consideration of all the clinical & radiological data at hand …  
I do not agree with the statement the Quoted article JBJS 91 B-504 is inappropriate- this article has given a clear view on the condition of subacromial bursitis/thickening …  
Most interestingly this report of 13/12/2010 stated ‘She has had a tear of the supraspinatus tendon at that time, whether this is partial or full thickness we will not be able to answer … ’ ‘It was either full thickness all the way along and was not demonstrated on us … ’
Let us see the [ultrasound] report of 9/7/2008 … the reporting consultant radiologist is very precise about not only the SITE 0 the partial tear (being bursal sided) but also very precise ablot [sic] its size …  
[Ultrasound] is as accurate as MRI in the diagnosis of the full thickness tear of the rotator & it is unlikely that a full thickness tear is missed in [ultrasound] …  
Having developed a partial thickness tear - the condition would naturally progress along the path of its natural history - 80% partial thickness tears will progress to full thickness tear without the need for any injury within 3 years …  
Leonie is suffering from her R shoulder subacromial impingement. This subacromial impingement is of course a gradual process condition … that is at best rendered symptomatic. ”
In her submissions Ms Williams contended that the injury suffered by the appellant was severe and was of a type which could cause a rotator cuff tear, and she also referred to the fact that the appellant had not experienced any pain condition prior to the injuring event. 
Counsel further commented on the fact that whilst Mr Fong had sought to identify the appellant as having suffered an earlier injury in 2004, Counsel noted that that injury related to the infraspinatus tendon as identified in an x-ray at the time and that the ultrasound of 2008 showed no such problem affecting that tendon, as well as it showing no factor of subacromial impingement, which was asserted by Mr Fong as being part of the degenerative condition. Counsel submitted that there was no evidence of any significant disease or gradual process condition in the appellant's shoulder shown in the ultrasound of July 2008. 
Ms Todd, Counsel for the Respondent, submitted that the opinion of the Clinical Advisory Panel Assessment should be accepted, that is, that the appellant was suffering from a subacromial impingement syndrome which was a gradual process condition rendered symptomatic. 
Counsel further submitted that the fact that the partial tear became a full thickness tear, identifies that the condition was more likely to have been as a consequence of degeneration, as there is no evidence of any event which could have caused the partial tear to become a full thickness tear. 
Counsel submitted that the appellant's condition relates to an ongoing degenerative condition, and as such is not as a consequence of any personal injury. 
In a claim such as the present one the onus is on the appellant to establish, on the balance of probabilities, that the surgery sought to be funded is to treat a medical condition caused by the covered personal injury. 
In this case there is no doubt that the appellant did suffer a significant shoulder strain when she fell onto her right side off the step at her home. The evidence is that the appellant began to experience severe pain from the moment of the fall, and it can therefore be taken as a fact that some damage was done to her shoulder. 
In his comment on the view expressed by Mr Krause, Mr Fong sought to make something of the fact that Mr Krause was incorrect to say that the appellant had no record of any symptoms prior to this fall when there was the earlier event of October 2004. I have considered this matter and find it to be of no relevance, as the evidence is that the injury of 2004 resulted in a sprain of the infraspinatus tendon, and it is the case that when the ultrasound of September 2009 was taken, it identified that there was no abnormality of the infraspinatus tendon. 
It is the case that it was the supraspinatus tendon which was shown as having a partial tear, and as is almost invariably the case in situations such as the present case, there is little or no radiological evidence of the condition of the supraspinatus tendon prior to the accident event. The only inference that could be made would be that in 2004 there was no tear identified and indeed the only medical condition identified at that time was a sprain of the infraspinatus tendon rather than any tear, partial or otherwise. 
Whilst I note that Mr Krause suggests that despite the first ultrasound there could well have been a full thickness tear at that time, I find that this suggestion has not got any evidential basis, and for the purposes of this appeal, it cannot be accepted as having been the case as of July 2008. 
With that being the case, it is equally the situation that in the fifteen months between the two ultrasounds, the partial thickness tear had transformed into a full thickness tear, and as I note, it was the case that in the two months or so leading up to the taking of that second ultrasound and seeing Mr Krause, the appellant was experiencing a significant increase in the level of her shoulder pain. It is also the case that that also brought about the onset of subacromial impingement, a condition which had not been present as of the date of the injury event. 
Whilst it is clear from the evidence that the partial tear has become a full thickness tear, I find that it can be accepted that this situation has arisen as a consequence of the fact of the partial tear, and it was the case that as of the time when the tear was only partial, there was no subacromial bursal impingement. It is the case that both the subacromial impingement and the full thickness tear have arisen from a situation where the appellant was experiencing the effects of a partial thickness tear. 
I find it is of significance that the first ultrasound identified that, save for the partial thickness tear, the rotator cuff was otherwise identified as being unremarkable, and of course there was no identification of any subacromial impingement. 
In those circumstances, I find that the opinion of Mr Krause is to be preferred and that there was a cause and effect relationship between the appellant's injury and the onset of her rotator cuff tear. It was his opinion that the nature of the fall was such that it could cause the tear, and this Court can take judicial notice of the fact that such partial or full thickness tears can be caused either by a traumatic event or as a consequence of long-term degeneration. 
I consider that it is clear that the full thickness tear is an extension of the rotator cuff injury which was suffered by the appellant, and it is to be kept in mind that the surgical treatment sought is that of right rotator cuff repair. 
As a final comment, I would note that the opinion of Mr Fong was one given after he had considered and adopted the advice given in an article which he quoted, and which article was included in the documents provided to the Court, and where it is stated in that article that the 57 patients who were the subject of the study were all “patients with non-traumatic shoulder complaints referred by primary health physicians”. Thus it is that that study was talking about degenerative or longer-term medical conditions and not any condition to a shoulder which had been caused by a traumatic event. This situation I find, lessens the assertion by Mr Fong, and it is the case as I find it, that the Assessment of Mr Krause is to be preferred on the balance of probabilities. 
For the foregoing reasons, therefore, I rule that the appellant is entitled to have her elective surgery, as contained in the application of Mr Krause, funded by the respondent. In that regard, this appeal is successful. 
The appellant being successful, I allow costs to the appellant in the sum of $2,500 together with any qualifying disbursements. 

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