Neame v Accident Compensation Corporation (Personal Injury) [2019] NZACC 118 (24 September 2019)

Last Updated: 10 October 2019

IN THE DISTRICT COURT
AT NELSON

I TE KŌTI-ā-ROHE
KI WHAKATŪ
[2019] NZACC 118 ACR 282/17

UNDER THE ACCIDENT COMPENSATION ACT 2001

IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT

BETWEEN HELEN NEAME

Appellant

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 11 September 2019

Appearances: Mr I Duncan for the appellant

Mr P McBride for the respondent

Judgment: 24 September 2019
____________________________________________________________________

RESERVED JUDGMENT OF JUDGE C J McGUIRE
[Section 26 Accident Compensation Act 2001– Personal Injury]

____________________________________________________________________

[1] At issue in this case is the Corporation’s decision of 2 March 2017 declining to fund entitlement to elective surgery for a total left knee joint replacement, as it was not shown to be a consequence of the appellant’s injury of 12 November 2006.

Background

[2] On 11 November 2006 when the appellant was aged 48, she was head butted by a sheep while drafting lambs on her remote rural property at Kainui, near Seddon. Emergency services took her to Wairoa Hospital. The hospital notes record:

L knee, head butted by sheep. Lateral dislocation of patella relocated by AO.

[3] The notes also recorded joint effusion and lateral bruising. She was referred for x-ray and discharged at 2.00pm on the same day, having been given crutches for support. The x-ray taken confirmed joint effusion.
[4] It appears that a claim for this injury was lodged and accepted by the Corporation.
[5] In her evidence before the Reviewer the appellant said she had not had problems with her right knee before but that she had some significant problems with her left knee since the 2006 accident. She said she had not seen anyone about it over the ten intervening years. She said:

I was going to go and see my GP about it, but I got – I did go and see my GP but I got side tracked about a problem with venous ulcers that they were concerned about, that seemed to be of more significance at the time than my actual knee.

[6] The appellant saw a general practitioner Dr Cameron on 8 June 2016. On examination the doctor noted:

Unable to weight bear, obvious deformity to patella, reduced successfully at scene. Full sensation and movement in foot. Paedal pulse present.

[7] A document headed “orthopaedics referral” from the Wairau Community Clinic dated 16 June 2016 recorded that x-rays taken on 8 June 2016 revealed ““NAD” (No Abnormality Discovered)? Needs other imaging”.
[8] Clinical details of the x-ray taken on 8 June were as follows:

Previous left patella dislocation 2006. Ongoing pain, worse over recent months. Medial tenderness.

Findings:

No joint effusion. Preserved joint spaces with no evidence of arthropathy including the patellofemoral articulation. Normal patella height. No other bony findings.

[9] The orthopaedic surgeon Mr Wilson, examined the appellant on 11 July 2016, he recorded:

She is having trouble with her left knee and relates this temporaly to a lateral patellofemoral dislocation she sustained when hit by a sheep in 2006. Since that time she’s had steady deterioration of the left knee.

[10] Later he notes:

On examination her knee alignment seems comparable to that of the right leg and gait pattern did not show an obvious limp. Supine leg lengths equal. Both knees have similar degree of recurvatum and flexion range. She was uncomfortable in the medial joint-line with hyperflexion ...

The clinical features suggest medial compartment pathology and she clearly has objective patellofemoral change as well with evidence of instability and articular cartilage damage at least.

[11] Mr Wilson arranged for an MR scan. This occurred the following day on 12 July 2016 and revealed:

• An inferior flap tear of the body and posteromedial corner of the medial meniscus with slight separation of inferior and medial margin fragments.
• Widespread deep partial and full thickness cartilage loss over most of the weightbearing surface of the medial femoral condyle with associated cortical irregularity. Reciprocal full thickness cartilage loss over the medial third of the medial tibial plateau.
• Suspected full thickness tear of the horn root.
• Relatively focal partial thickness cartilage loss in the posterior weightbearing surface of the lateral femoral condyle is not associated with subchondral oedema.
• The anterior cruciate ligament is intact but appears mildly expanded.
• The proximal PCL is also of increased signal without fibre redundancy seen.
• The patella lies in a very lateral position and is tilted. There is an elongated and somewhat undulant medial patella femoral ligament and thickened ITB and lateral retinaculum. These changes are associated with full thickness cartilage loss in the central superior trochlea with further fibrillation and fissuring over the apical cartilage of the dorsal patella.
• A small joint effusion is noted but with mild – moderate suprapatellar and posterior joint synovitis.

[12] Under the heading “comment” it is noted:

... patella femoral dysmorphology with laterally positioned and tilted patella. Predominantly trochlea cartilage deficient.

[13] In his follow-up clinical letter of 27 July 2016 Mr Wilson stated:

The MR makes interesting viewing. There are 4 or 5 different pathologies evident on the scan. First and foremost she has clearly abnormal patellofemoral morphology with a laterally tilted and displaced patella sitting on the lateral femoral condyle which looks to be a very chronic feature. There is clearly a secondary change occurring as a consequence of this misalignment. She has medial compartment change with full thickness articular cartilage lost over both tibial and femoral surfaces. She has bi-compartmental meniscal pathology and I think the end result of understanding this would be to advise her to wait until her knee was significantly troublesome and then have a total knee joint replacement which will take account of all these pathologies.

...

Arthroscopic type surgery in this situation would be entirely unpredictable and to my mind not something that I would strongly encourage.

[14] On 16 January 2017 Mr Wilson recorded that the appellant wanted to proceed with a total knee joint replacement.
[15] In his Assessment Report and Treatment Plan of 16 January 2017 Mr Wilson says under the heading “history of the current condition”:

As you are aware I reviewed Helen last year and we discussed her troublesome knee. This was caused by a knee injury in 2006 when she had a patellofemoral dislocation.

[16] Under the heading “specific diagnosis” he notes;

Post traumatic deterioration left knee.

She also has lateral compartment meniscal extrusion.

[17] On 28 February 2017 the respondent’s medical advisor, Mr Brownlee, commented:

It appears from the material on file that only a single patella dislocation has occurred. No further claims are evident beyond 12/11/2006. Hence, it is unlikely that the patellofemoral wear change is related to this event – it is more likely, based on imaging studies currently available, due to longstanding lateral patella tracking and excessive lateral pressure syndrome. The tibiofemoral compartment wear changes are degenerative, and unrelated to the patellofemoral mechanical problems.

[18] In a letter to the appellant dated 2 March 2017, the Corporation determined that the appellant’s condition was not caused by her accident of 12 November 2006 and were unable to approve the request for payment for surgery.
[19] On 22 May 2017 Mr Wilson commented further to the appellant’s advocate:

After noting that injuries such as the appellant sustained can often be understated and often are high velocity injuries in terms of the animal involved and can produce significant pathology, often underestimated at the time of initial assessment.

...

I would suggest that whilst consideration has been given to a patellofemoral dislocation in regard said incident in 2006, significant chondral and/or ligamentous disruption could easily have been concurrent with that incident thus leading to an inevitable deterioration over time. So the specific injury relevant to Mrs Neame’s current situation is of 2006 ... and this was a blow and/or twisting injury to her knee. I suspect that the original damage was under estimated and that over time her knee has become unilaterally a problem. As far as I am aware her other knee is not affected by this disease and it is somewhat illogical to conclude that one joint is going to fail in isolation by virtue of an idiopathic degeneration. This degree of unilateral asymmetry of failure would much more be in keeping with a post traumatic deterioration reflecting an injury some years ago and that injury clearly occurred on 12 November 2006.

[20] Mr Brownlee commented further on 25 May 2017. In answer to the question “what has caused the maltracking of the patellar” Mr Brownlee said:

Lateral patellar tracking is a result of departmental structural mechanical features in the extensor mechanism resulting in lateral patella tracking. ... patella maltracking is not the consequence of any injury event.

[21] In answer to the question “why the patellofemoral wear changes are more likely caused by the lateral patella tracking” as opposed to a one-off dislocation event, Mr Brownlee says:

The patellofemoral changes, in view of the radiological appearances (of lateral patella wear and tilt) are not likely to be the consequence of single event trauma even a patella dislocation. These appearances would most likely be evident on radiological examination of the opposite knee. If discussion continues as to causation, I recommend x-rays of the opposite knee to be obtained and should similar appearances be demonstrated, a patella lateral tracking pathology can be confirmed.

[22] He was also asked why the advanced wear changes in both tibiofemoral compartments are unrelated to the patella femoral mechanical problems. Mr Brownlee’s answer was:

The articular surface changes in the tibiofemoral compartments of the knee will not be related to any changes seen in the patellofemoral surfaces. The mechanics affecting these compartments of the knee are unrelated, at least in terms of causation of degenerative changes. ...

The Appellant’s Submissions

[23] The appellant’s submissions were those that were advanced before the Reviewer and supplemented orally by Mr Duncan. He submitted that the Corporation disregarded the lack of any significant symptoms prior to 12 November 2006 and disregarded the ongoing symptoms experienced by the appellant since the date of injury. He also submitted that the Corporation disregarded the likely effect of post traumatic degeneration and subsequent accidents on the original injury.
[24] He emphasised that Mr Wilson has personally examined and treated the appellant and has been consistent in his support that the injury was most likely caused by the trauma from the accident of 12 November 2006, compounded by the post traumatic degeneration arising from that original accident.
[25] In oral submissions, Mr Duncan referred to the evidence given by the appellant before the Reviewer relating to the mechanism of injury:

A lamb got away and then as I tried to push them forward it actually ran straight into me, into the side of my knee and dislocated my knee.

The appellant confirmed that the “lambs” weighed from 40 to 60 kgs.

[26] The appellant added this in evidence before the Reviewer:

It hit me on the side of my knee, in the medial part, and the kneecap went round the back, and ... I couldn’t walk. So my husband and stock agent literally carried me across to the side of the actual yards and I held on to the fence while they phoned the ambulance.

[27] Mr Duncan submitted that the appellant was a self-reliant woman at the time, “living in the middle of nowhere”. He says that as an ambulance was called, what occurred was serious.
[28] Mr Duncan submits that the appellant’s evidence and that of Mr Wilson should be preferred.

The Respondent’s Submissions

[29] Mr McBride draws attention to the fact that from what was originally one pathology, namely a dislocated patella in 2006, in 2016 there are four or five different pathologies.
[30] Mr McBride refers to Mr Brownlee’s comment that only a single patella dislocation has occurred and that there were no further claims evident beyond 12 November 2006. Hence Mr Brownlee’s conclusion that the patellofemoral wear changes were related to this event and more likely due to longstanding lateral patella tracking and excessive lateral pressure syndrome.
[31] Mr McBride refers to s 26 of the Act, noting that personal injury does not include personal injury caused wholly or substantially by a gradual process consequential on personal injuries suffered by the person for which the person has cover.
[32] He refers to the dicta in the case of Leonard relating to the onus of proof,^[1] and to Martin v Accident Compensation Corporation where Ronald Young J noted: ^[2]

[36] In summary, therefore:

(e) In assessing expert medical evidence factors such as (non exhaustive) the extent and relevance of the practitioner’s qualifications and experience, the comprehensiveness of the evidence gathered, the quality of the report, and where the preponderance of opinion lies and the validity of criticism of other medical opinions, will all be relevant in deciding the ultimate question.

[33] Mr McBride submits that the medical evidence relied on by the appellant at its highest raises speculative possibilities of a causal nexus and that what the appellant is required to show is not just that a causal nexus is possible, but that it is likely.

Decision

[34] The appellant’s evidence given before the Reviewer does in my view paint a picture of an extremely robust person, immediately incapacitated by her injury to the point where she had to be carried and then wait for the arrival of the ambulance.
[35] It is noted in the ambulance report that morphine was administered to her twice after the arrival of the ambulance.
[36] She was seen at the Wairoa Hospital at 11.50 am and that she was discharged at 14:00 hours. The hospital notes cryptically record:

Lateral dislocation of patella relocated by AO. The hospital report also notes joint effusion showing in x-ray. She was given crutches and discharged.

[37] When the “4 or 5 different pathologies” were identified from the MR scan in 2016 Mr Wilson concluded that in due course a full knee replacement would be appropriate. In his Assessment Report and Treatment Plan Mr Wilson said this:

Helen’s pain has both medial compartment and anterior knee pain. I think it very much reflects the combination of deteriorating medial and patellofemoral articulations and the MR would support that.

[38] His specific diagnosis was:

Post traumatic deterioration left knee.

She also has lateral compartmental meniscal extrusion.

[39] In Mr Brownlee’s opinion on behalf of ACC on 28 February 2017 he says:

It appears from the material on the file that only a single patella dislocation has occurred.

[40] Given the history of what occurred on the day of the injury and the fact that the appellant was in hospital for only 2 hours and 10 minutes I conclude that on any reasoned basis the diagnosis was rushed, particularly in the light of the appellant’s description of how the injury occurred, and how it immediately and comprehensively incapacitated her.
[41] In fairness to Mr Brownlee he does preface his comment with the words “it appears from the material on file”. That leads him to conclude that it is unlikely that the patellofemoral wear change is related to this event.
[42] Mr Wilson in his report of 22 May 2017 says:

I would suggest that whilst consideration has been given to a patellofemoral dislocation in regard to said incident in 2006, significant chondral and/or ligamentous disruption could easily have been concurrent with that incident thus leading to an inevitable deterioration over time. ... I suspect that the original damage was underestimated and that over time her knee has become unilaterally a problem. As far as I am aware her other knee is not affected by this disease and it is somewhat illogical to conclude that one joint is going to fail in isolation by virtue of an idiopathic degeneration.

[43] Also, in fairness to Mr Brownlee in his report of 25 May 2017, he is less certain. He says the patellofemoral wear changes “are not likely to be the consequence of a single event trauma, even a patella dislocation”. He goes on to say that if discussion continues as to causation he recommends x-rays of the opposite knee be obtained and should similar appearances be demonstrated a patella lateral tracking pathology can be confirmed. The evidence such as it presently stands is that the appellant has no problems with her opposite knee.
[44] I therefore conclude on the balance of probabilities that the appellant has proven that the “4 or 5 different pathologies affecting her left knee” were the consequence of her accident on 12 November 2006. Accordingly, her appeal is allowed and the Corporation’s decision letter dated 2 March 2017 is reversed. The consequence is that the Corporation pays for the appellant’s knee surgery.
[45] Mr Duncan’s request for suppression was not pursued at the hearing. Accordingly, that request is denied.

Judge C J McGuire
District Court Judge


Solicitors: McBride Davenport James, Wellington for the respondent

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^[1] Leonard v Accident Compensation Corporation [2010] NZACC 60.

^[2] Martin v Accident Compensation Corporation [2009] NZHC 974; [2009] 3 NZLR 701 at [34].