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Accident Compensation Cases

Irving v Accident Compensation Corporation (DC, 31/03/15)

Judgment Text

Judge L G Powell
On 7 May 2011 the appellant, Helen Irving, was sitting on a step having coffee at a friend's house, when another friend walking on the deck above and behind Ms Irving slipped and fell, and landed on Ms Irving's left shoulder. 
At review in an account accepted by the Corporation, Ms Irving described a “huge pain” following the accident, which got worse the following day. Ms Irving gave evidence that she initially thought that the shoulder was just bruised and treated the pain with anti-inflammatory tablets, “hurt” cream and paracetomal. After three weeks when the pain had not improved, but rather had got worse, Ms Irving sought treatment, for which cover was granted by the Corporation. 
Initial x-rays showed no injury, but an ultrasound taken on 7 June 2011 showed “bursal thickening … with bursal binding seen on abduction”. A subsequent ultrasound confirmed the thickening and also indicated a small bursal effusion. In the meantime symptoms persisted and although steroid injections were tried these gave only transitory relief. 
Following a third ultrasound in July 2012 which noted “several tiny intrasubstance tears” of the supraspinatus and infraspinatus tendons, Ms Irving was referred to Steven Bentall, orthopaedic surgeon, for assessment. After an MRI Mr Bentall recommended an “arthroscopy +/- biceps tenotomy of the biceps if found to be inflamed and open acromioplasty left shoulder”. Funding for surgery was however declined on 16 May 2013 by the Corporation on the advice of Dr Peter Thakurdas, a general practitioner and Branch Medical Advisor for the Corporation and Ray Fong, orthopaedic surgeon (“the Thakurdas/Fong report”). In the opinion of Dr Thakurdas and Mr Fong, Ms Irving's symptoms were “probably more consistent with underlying pre-existing early rotator cuff tendinopathy with, probably subclinical, bursal thickening that has been aggravated rendered symptomatic, rather than caused afresh in a one off way, by this particular accident event”
Ms Irving challenged the decision and the operation in any event took place on 14 August 2013. Despite a further report from Mr Bentall which concluded that the need for surgery was the result of the accident, on 7 May 2011 the Corporation's decision was upheld at review and Ms Irving appealed. 
The issue to be determined is accordingly whether Ms Irving's need for surgery was causally linked to the accident on 7 May 2011. 
The Case for the Corporation 
Ms Whittaker for the Corporation submitted that the decision to decline funding for surgery was correct. In Ms Whittaker's submissions the need for surgery was caused by gradual processes (bursitis and tendinosis), rendered symptomatic but not caused by Ms Irving's accident on 7 May 2011. 
Ms Whittaker relied in particular on a report of the Corporation's Clinical Advisory Panel (“CAP”) dated 8 July 2014, obtained after Ms Irving's appeal was filed which in Ms Whittaker's submissions confirmed the conclusions reached in the Thakurdas/Fong report. The full CAP report identified a range of evidence to support the conclusions that the need for surgery was the result of gradual processes. In particular the CAP noted: 
A traumatic injury to the bursa is very uncommon, and the commonly accepted cause of bursal pathology is a gradual process, namely repetitive impingement and intrinsic tendon disease. 
In general, studies of the bursa shown a relative absence of inflammatory cells, which suggests that pathological changes in the bursa are generally non-inflammatory. This lends less support to an acute inflammatory response within the bursa being theresult of single episode trauma. 
The description of Ms Irving's accident on 7 May 2011 did not fit with the expected mechanism of accident that would cause a traumatic injury to the bursa. The expected mechanism of accident for a traumatic bursitis is one that includes significant axial compressive force from the humeral head up into the coracoacromial arch. In this case Ms Irving was struck from behind on her left posterolateal shoulder, and the humeral head was not involved. 
The evidence is that Ms Irving did not think too much of her injury at the time of the accident, but that her shoulder began deteriorating over the next few days and she developed increasing pain. 
Traumatic bursitis is expected to settle with a steroid injection. 
The radiological investigations undertaken of Ms Irving's shoulder are consistent with degenerative change, and show the natural progression of an underlying condition. 
The changes in Ms Irving's biceps tendon (inflammation) noted at surgery are most likely to be associated with degenerative change in the tendon (tendinosis). In any event, as the surgery was performed over two years after the accident, and therefore it is difficult to attribute the changes in the biceps tendon to the accident. 
Ms Irving's acromial morphology is likely to have provided an additional source of extrinsic impingement that contributed to the bursitis. 
In summary Ms Whittaker submitted: 
Accordingly, it is submitted that Mr Bentall's evidence goes no further than a ‘but for’ connection, and relies on the temporal connection between the accident and the onset of Ms Irving's symptoms. It is submitted that this is not sufficient to found cover and an entitlement to elective surgery under the Act. ”
Discussion and Analysis 
It accepted by both parties that the central issue in this case is causation — what caused Ms Irving's issues to her shoulder that required surgery and, in particular whether it resulted from a covered injury. This is important because surgery is an entitlement and a claimant like Ms Irving is not entitled to an entitlement other than in respect of a covered injury.1
| X |Footnote: 1
See s 67 of the Accident Compensation Act 2001 and Medwed v Accident Compensation Corporation [2009] NZACC 87 at [13] and [26] and decision in Newton v Accident Compensation Corporation [2015] NZACC 22 at [24] and [25] 
In assessing the cause of the injuries I am guided by the principles set out by the Court of Appeal in Accident Compensation Corporation v Ambros2
| X |Footnote: 2
[2008] 1 NZLR 340 and in particular paragraphs [66] — [70] 
Having considered the evidence before me I am satisfied that neither the Thakurdas/Fong report nor the full CAP report adequately explain Ms Irving's need for surgery. 
While both the Thakurdas/Fong report and the full CAP report place much weight on the lack of evidence for a traumatic injury there is equally no evidence of degenerative change occurring which would explain the onset of Ms Irving's symptoms. In particular the conclusions reached in the Thakurdas/Fong report that Ms Irving's imaging was “consistent with the natural progression of an underlying condition”, which they identified as being “underlying pre-existing early rotator cuff tendinopathy with, probably subclinical bursal thickening”, is simply not made out on the evidence before me. On the contrary the conclusion that Ms Irving was suffering from tendinopathy was specifically rebutted by Mr Bentall, who having operated upon Ms Irving noted that there was in fact “no evidence of underlying degenerative rotator cuff tendinopathy”
Likewise the imaging evidence — the x-ray taken a month after the accident, the three ultrasounds (dated one month, two months and 13 months post accident respectively), and the MRI scan taken nearly two years after the accident show not only no evidence of degenerative progression, but ultimately no evidence of significant degenerative change at all, and certainly nothing that would explain the symptoms experienced by Ms Irving. Although the CAP has placed weight on the “several tiny intrasubstance tears of the supraspinatus tendon and the infraspinatus tendon” identified in the third ultrasound that took place in July 2012, it is significant that no weight was placed on these in the Thakurdas/Fong report despite that imaging being already available. In addition no such tears were subsequently identified in the MRI of March 2013, which instead confirmed no evidence of any degenerative change. In any event there is no evidence before me that the tiny tears referred to in the third ultrasound were in any way responsible for Ms Irving's symptoms or indeed the need for surgery. 
Ultimately the “degenerative processes” relied on by the Corporation were to all intents and purposes invisible at surgery, two years after the accident. Even if the CAP was correct in identifying a “natural progression of an underlying condition” in their interpretation of the changes observed in the three ultrasounds, it still provides no plausible basis for either Ms Irving's symptoms or her need for surgery, particularly given such changes as were able to be identified by the CAP post-dated the onset of Ms Irving's symptoms. 
The weight placed by the Corporation on a delay in the onset of Ms Irving's symptoms also appears misplaced on the evidence before me. The CAP appears to have relied upon Mr Bentall's response to Ms Irving's general practitioner in February 2013 that Ms Irving did not initially “think too much” about the accident. This letter was not a contemporaneous record, with the GP notes from Ms Irving's first consultation being in fact far more equivocal as to the onset of symptoms. On the other hand Ms Irving's own evidence at review was that she did in fact experience a sudden sharp onset of pain at the time of the accident which only got worse. Having considered her account I find it entirely plausible, and indeed I note that it was specifically accepted by the Corporation at review,3
| X |Footnote: 3
Review transcript at page 16. 
Ms Irving's account likewise provides an entirely plausible basis for her not initially seeking medical attention but instead she attempted to give her injured shoulder a chance to heal, and I see nothing remarkable about such delay or consider that it could be construed in any way as being inconsistent with a traumatic injury having occurred on 7 May 2011. Likewise while the CAP cast doubt on the mechanism of injury because it did not provide for the type of “significant axial compressive force” expected to cause traumatic bursitis because Ms Irving was struck from behind I note that Mr Bentall has in fact described a compressive effect, and the Thakurdas/Fong report likewise accepted that the “accident event seems forceful and associated with left shoulder symptoms”. To suggest that the injury suffered would not have involved significant compression seems to be reading far too much into the available descriptions of the accident, and in particular Ms Irving's evidence at review. 
Beyond that the CAP report is replete with references to what would have been expected, whether a lack of inflammatory cells or that Ms Irving's injury if traumatic would have been expected to settle with the use of steroids. In no case however do these comments provide any explanation as to what happened in this case, or what in fact caused Ms Irving's injuries that required surgery. 
Taken together I do not find either the Thakurdas/Fong report or the full CAP report provide a plausible explanation for Ms Irving's injury or her need for surgery. Instead I find the reports of Mr Bentall far better reflect the evidence available and in particular the absence of any real evidence of the type of degenerative change that could possibly account for Ms Irving's injury. In particular, having noted the onset of symptoms at the time of the 7 May 2011 accident, Mr Bentall provides a cogent explanation as to how such an accident would have caused the condition requiring surgery, and, based on his own observations in the course of surgery, rules out other non injury factors as contributing to Ms Irving's condition. As a result I find Mr Bentall's conclusions compelling and find the evidence supports the conclusion Ms Irving's need for surgery resulted from her accident on 7 May 2011. 
The appeal is allowed. The review decision dated 11 December 2013 is quashed and the decision of the Corporation dated 16 May 2013 is set aside. Ms Irving is entitled to have her surgery funded by the Corporation. Ms Irving is also entitled to costs. If these cannot be agreed within one month I will determine the issue following the filing of memoranda. 

See s 67 of the Accident Compensation Act 2001 and Medwed v Accident Compensation Corporation [2009] NZACC 87 at [13] and [26] and decision in Newton v Accident Compensation Corporation [2015] NZACC 22 at [24] and [25] 
[2008] 1 NZLR 340 and in particular paragraphs [66] — [70] 
Review transcript at page 16. 

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