Would this be grounds for a claim?

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Would this be grounds for a claim?

Post by Paranoidandroid on Wed 25 May 2016, 02:59

Around 2009, I had a bit of a wipe out on my dirt bike, a very painful one that made my right knee feel like it was ripped out of it's socket. I borrowed some crutches from my buddy and drank away the pain (after I brought my bike home) until I could to the MIR the next day.
I woke up the next day to more pain and severe swelling. It was clear to the 2 young med techs that I was in severe pain, so they had a physiotherapist come check on it. The diagnosis was just a simple sprain. I was given orange smarties, a tensor bandage and was sent on my way with a week of light duties.
My knee started to get better until about a week later, I had a popping sensation. Went back to the MIR, again the diagnosis was sprained knee- Light duties, more bandage and some ice packs.
The days would go by and my knee would get better until a week or 2 later I had the "popping" occur once again. Again, just a sprain- more light duties and an upgrade to a cheap knee brace.
These symptoms persisted for years. Multiple times, I was told it was "just a sprain". I was sent to physio and given a cane.
This persisted for years. My knee would get better for a few weeks until I would be back on a cane. I was able to complete my bft and pt tests and such, but over the years, I would have the occasional popping sensation that would leave me in absolute agony for hours.
At times it got so bad that I would be bedridden for a day and require crutches. Medical diagnosis? -Just a sprain, go to physio.
For years, I was going to the MIR trying to tell them that something was not right. I had to beg and plead for over a year that it was not just a sprain. I was told if it still hurt in a week, come back. Usually in a couple of days it felt fine... Until I would turn the wrong way and *pop* goes my knee followed by severe pain. I went up the entire medical chain of command who did nothing for me but send me to inexperienced physiotherapists.
After 4 years of this limbo, I finally got into see a good physiotherapist. He tried everything right up to acupuncture with the electric cables on the end of the needles. After doing everything he could to make things better, he finally gave in. "There is nothing more I can do with this, you are going to need an MRI" I explained that I had been asking that for years, only to get denied time and time again.

A couple of months later, I finally got my MRI, results? Torn meniscus and the surgeon recommended that I have surgery. I was more than happy to take him up on the offer.
Fast forward about 6 months, the surgeon told me it would be a quick 20 minute procedure. I was put under and 4 hours later, he told me it was much worse than originally expected. He told me "It looked like a bomb went off in there, I almost had to call in another surgeon it was so bad, how the hell were you walking on this?"
The surgery was a great improvement, I still experience the popping, but not near as bad, just persistent aches.

My question is this.
Since the original injury occurred on my own time, would I still have a case seeing as I was misdiagnosed for many years and the neglect of the medical staff to further investigate the injury caused it to become worse over time. I was also in the Infantry, so things such as morning PT, ruckmarches, etc. only made it that much worse. It had a severe impact on my career due to multiple tcats followed by a remuster. If I were to grab all the paperwork in relation to my knee from my medical file, it is clear that the amount of times I came in only to be offered minimal care, their was a great deal of neglect only causing symptoms to worsen.
Perhaps I could get the surgeon and physiotherapist to write up a note saying that the reason why my knee "looked like a bomb went off in there" was due to years of misdiagnosis, which caused my knee to be as badly damaged as it was.
Do you guys think that would give me enough ammo for a claim?

Paranoidandroid
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Re: Would this be grounds for a claim?

Post by Trooper on Wed 25 May 2016, 05:38

In my opinion the short answer is no.

In order for you to claim for benefits through VAC you need to prove that the injury/condition and or disability was service related.

In your particular case the injury was not service related even though you may have been miss diagnose or even had your injury aggravated by MIR staff it still does not fit into the service related category.
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Re: Would this be grounds for a claim?

Post by bigrex on Wed 25 May 2016, 08:24

Actually, you may just have a case, even if slim. The PA used to claim that poor medical treatment could be seen as a cause for aggravating a non service related injury, but I think they eliminated that clause in the NVC, because I can't find it.


Eligibility

45 (1) The Minister may, on application, pay a disability award to a member or a veteran who establishes that they are suffering from a disability resulting from

(a) a service-related injury or disease; or

(b) a non-service-related injury or disease that was aggravated by service.


So if you can demonstrate that the injury was aggravated by your service, through clinical findings, such as worsening MRI findings or worsening symptoms, and it's not something that they can't just pass off as coming with age, you might get a 1 or 2/5ths disability.
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