Accident Compensation Corporation v Prior

IN THE DISTRICT COURT HELD AT DUNEDIN [2012] NZACC 127 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ACCIDENT COMPENSATION CORPORATION (ACR 702/10) Appellant AND ELIZABETH ANNE PRIOR Respondent DECISION OF JUDGE M J BEATTIE [1] This appeal came on for hearing before me at Dunedin on 16 March 2012. [2] At the hearing, I heard submissions from Counsel for the parties, and my notes taken at that time identify the submissions so made. [3] It is the case however, that my notes do not identify that Mr Sara, Counsel for the Respondent, had requested the opportunity of introducing a further medical report from a Mr Boland, which report was shortly to be available. [4] I accept the advice of Counsel for the parties that it was agreed at that hearing that Mr Sara would have the opportunity to introduce that report from Mr Boland, and for both parties to make any further submissions that that report may give rise to. [5] I regret that I did not so note that situation and went ahead and issued a decision based on the evidence and submissions received to the date of hearing. [6] Accordingly, I direct that my decision dated 12 April 2012, being decision number NZACC 127/12 be withdrawn, with the situation now being that Mr Sara has the opportunity to introduce the report from Mr Boland, together with any submissions 2 relating thereto, and that Mr Hunt, Counsel for the Appellant, will have the opportunity of filing any submissions in reply. [7] As and when those matters have been concluded, I will again consider the issue in this appeal and deliver a decision. DATED this 27th day of April 2012 M J Beattie District Court Judge IN THE DISTRICT COURT HELD AT DUNEDIN [2012] NZACC 127 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ACCIDENT COMPENSATION CORPORATION (ACR 702/10 Appellant AND ELIZABETH ANNE PRIOR Respondent HEARD at DUNEDIN on 16 March 2012 APPEARANCES Mr I Hunt, Counsel for Appellant. Mr P Sara, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This appeal arises from a review decision dated 17 September 2010, whereby the Reviewer quashed the earlier primary decision of the appellant dated 13 January 2010, whereby the appellant had suspended entitlements to the respondent on the grounds that the respondent's current medical condition was not causally related to her covered personal injury. [2] The actual wording of the relevant part of the appellant's decision stated as follows: ACC has looked carefully at all the information now available including Dr Beaumont's report dated 10 December 2009 and has decided that your current condition is no longer the result of your personal injury of 1 November 2006. The medical report states your current condition is not causally related to any physical injury, and therefore not to the covered personal injuries. 2 [3] Whilst the primary decision was undoubtedly a decision made by the appellant pursuant to section 117(1) of the Act, the circumstances of this case are somewhat unusual and this is not a case where the Court is being called upon to consider differing medical opinions on any causative link, but rather, as a matter of law, whether the appellant can, having regard to the background, make the decision such as it did. [4] The relevant factual background may be stated as follows: As of March 2007 the appellant was employed as a High Court Judge's Associate, and for some time prior thereto she had been experiencing pain in her right upper limb. In March 2007 the respondent lodged a claim for cover with ACC, claiming cover for synovitis and tenosynovitis, said to be gradual process conditions arising from certain work tasks in her employment as a Judge's Associate. It seems to be the case that the diagnosis of synovitis/tenosynovitis was made by the respondent's GP, and that diagnosis is identified in the Medical Practitioner Cover Questionnaire, which the respondent's GP completed in May 2007. At the time that this claim for cover was lodged and subsequent thereto a significant amount of evidence was introduced which identified that the nature of the respondent's work-tasks were the likely cause of her medical condition, and that aspect of the claim has never been in dispute. ACC sought specialist opinion on the respondent's medical condition from Dr David Hartshorne, Specialist Occupational Physician, and he examined the respondent on 5 September 2007 and then reported to ACC. Dr Hartshorne's report identified a lengthy history of pain problems experienced by the respondent arising from her work tasks, and he identified that the respondent presented with a history of long- standing extensor forearm discomfort on the right side. 3 In his report Dr Hartshorne clearly identified that there was no evidence of specific musculoskeletal conditions such as tenosynovitis or epicondylitis, and he stated that the appellant's condition was that of muscle tension pain, or tension myalgia, within the extensor forearm musculature of the right upper limb. He stated that the underlying condition was that of muscle tension pain. He further stated that this condition was not generally regarded as representing a physical injury. It was consequent upon that report from Dr Hartshorne that the appellant issued its decision of 26 October 2007 declining to grant cover to the respondent for a gradual process work-related personal injury, on the grounds that there was no evidence of a physical injury. On 24 January 2008 the respondent lodged an application for review of that decision. Whilst the circumstances have not been made clear to the Court, it is the case that, for whatever reason, the appellant did not initiate review procedure in respect of the respondent's application for review The next relevant event was a decision made by the appellant on 26 January 2009, acknowledging that it had not set in motion the review procedure as it was obliged to do under the Act, and it therefore accepted that the respondent thereby had the benefit of a deemed decision granting cover for the work related medical conditions of synovitis and tenosynovitis in her right shoulder and forearm. Subsequent to that decision the appellant began to pay the respondent weekly compensation. . In December 2009 the appellant referred the respondent to Dr David Beaumont, Occupational Medicine Specialist, for assessment of the respondent's then medical condition. Dr Beaumont saw and examined the respondent on 1 December 2009 and provided a report dated 10 December 2009. 4 Included in the medical documents to which Dr Beaumont had reference was the medical report of Dr Hartshorne of September 2007. It was Dr Beaumont's advice that the respondent's current diagnosis was as follows: Regional Pain Syndrome affecting the right upper limb with associated central sensitisation to pain, multiple tender trigger points and musculoskeletal dysfunction. It should be noted that these are symptom descriptions without evidence of injury or damage to musculoskeletal structures. The mechanisms of development of such Regional Pain Syndromes are not well understood but not thought to include pathological change. Dr Beaumont went on to make the following comments: I have not found any evidence of personal injury or damage to structures. There is no evidence presented or identified on assessment today to suggest that any other process is underlying these symptoms. In his report, Dr Hartshorn reaches a diagnosis of 'muscle tension pain or tension myalgia within the extensor forearm musculature of the right upper limb.' In my opinion this is simply one of the many different diagnoses used to describe this symptom complex. His findings were very similar to my own and I bel e that he has basically reached the same conclusion that this is a non-specific pain syndrome associated with musculoskeletal dysfunction, including muscle tension. I do agree with him that this symptom complex and examination findings are not indicative of physical injury. This is also the conclusion reached by Dr David Prestage, Chair of Musculoskeletal Exposure Panel, and Dr Michael Antoniadis. It was consequent on Dr Beaumont's report that the appellant issued its decision on 13 January 2010 suspending entitlements to the respondent. Mr Sara, Counsel for the Respondent, sought clarification of some matters from. Dr Beaumont, and he responded by letter dated 19 August 2010, and where he was asked to comment on the medical conditions of synovitis and tenosynovitis and he stated, inter alia, as follows: I have reviewed my report of 10 December 2010 in which I reached a conclusion that the diagnosis to explain Ms Prior's symptom complex was of Regional Pain Syndrome, which had previously been referred to as Occupational Overuse Syndrome, or OOS. I have mentioned the diagnosis of tenosynovitis on a number of occasions, but always in the negative. By this I mean in describing tests for this condition as being 5 negative, or no evidence of this condition having been found. Accordingly, I would answer your specific questions as follows: I have not found any evidence to suggest that Ms Prior was suffering from synovitis/tenosynovitis as of 1 November 2006. I have presented evidence that this was also the opinion of other doctors who saw and assessed Mrs Prior. The respondent sought a review of the appellant's decision of 13 January 2010, and that review came on for hearing on 23 August 2010, at which the respondent was represented by counsel. The Reviewer had the background facts and also the medical reports of Dr Hartshorn and Dr Beaumont for reference. . Whilst the Reviewer accepted the evidence of Dr Hartshorn and Dr Beaumont that the respondent's medical condition was that of a non- specific pain syndrome, associated with musculoskeletal dysfunction, she nevertheless determined that as a matter of law, the respondent had cover for tenosynovitis as a work-related gradual process injury, and she ruled that the appellant had failed to prove the respondent's current pain syndrome was not causally linked to her work-related gradual process injury, she finding that the evidence was clear that there was a causal link remaining between her present symptoms and the injury for which the appellant had granted cover. It was for that reason that the appellant's decision was quashed. [5] Mr Hunt submitted that the medical evidence identified that the respondent's symptoms of incapacity at the time of the suspension decision were not caused by, or causally related to the respondent's covered physical injury, and that it therefore followed that the appellant had sufficient evidence to be not satisfied that the respondent was entitled to continue to receive weekly compensation. [6] Counsel accepted as a matter of law that the respondent had the benefit of a decision which granted her cover for the physical injury condition of tenosynovitis, but counsel submitted that the medical evidence established that the respondent's ongoing medical condition of a non-specific pain syndrome was not causally linked to the covered personal injury. 6 [7] It was the case that Mr Sara was content to rely on the review decision and the submissions he had made at that time. DECISION [8] The issue to be determined in this appeal is whether it can be established that as at January 2010 the appellant had evidence which would enable it to be not satisfied that the respondent was entitled to continue to receive entitlements. That determination required the appellant to be not satisfied that the respondent's then medical condition was causatively linked to her covered personal injury. [9] I find it to be the case that a grant of cover to the respondent created by the deeming provisions of section 146 of the Act, does not thereby create any special or different circumstance of cover than if the appellant had in fact issued a decision to grant cover. In practical terms it meant that the respondent was granted a decision at review level determining that she had cover for a work-related gradual process injury of tenosynovitis. [10] From that point in time on, the situation which thereafter applies is simply that the respondent does have cover for the personal injury sought, and subject to any further decisions, is entitled to receive entitlements commensurate with that physical injury. [11] As the appellant did not see fit to lodge an appeal from that deemed review decision, it is the case that the appellant must accept the factual situation of this respondent having cover for the personal injury of tenosynovitis arising from her work tasks. This puts the factual situation in no different a position than any other covered injury situation, where the Corporation can, pursuant to section 117, seek to suspend entitlements if it is not satisfied that a claimant is entitled to continue to receive those entitlements. [12] In the case of this respondent, I find that it required the appellant to establish by way of medical evidence that the respondent's ongoing medical condition was not causatively linked to her covered injury. The evidence required to establish that state of affairs, I find, is not simply evidence that the respondent in fact never had the physical injury of tenosynovitis, as that medical condition is there by operation of law, and by which the appellant is bound by virtue of section 147 of the Act. 7 [13] Having said that, I find that the evidence from Dr Beaumont establishes that the respondent's medical condition as of December 2009, which was identified as a non- specific pain syndrome, was not a medical condition attributable to a physical injury, and which could not be identified as being causally linked to the respondent's covered personal injury of tenosynovitis. [14] No medical evidence asserting any contrary view has been presented, and it must therefore be found to be the case that the respondent's medical condition, as of the date of suspension, was not a medical condition causatively linked to her covered personal injury. [15] Accordingly, as a matter of evidence, I find that the appellant did have reason to be not satisfied that the respondent was entitled to continue to receive entitlements under the Act, and the decision it made to suspend entitlements was the correct decision. It is therefore the case that the appellant's primary decision of 13 January 2010 suspending entitlements, is hereby reinstated. DATED this 12 day of 20012 April M J Beattie District Court Judge