Accident Compensation Corporation v Searancke

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. [2011] NZACC 75 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 (Al 435/07) Appellant AND KERRY GERARD SEARANCKE Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS [1] This is an appeal by the Accident Compensation Corporation from a deemed review decision in favour of the respondent, which deemed decision took effect from 18 March 2007, with the substance of that decision being that the respondent was entitled to cover for a treatment injury consequent upon an appendectomy which he underwent on 23 December 2004. [2] Following the filing of the Notice of Appeal by the appellant from that decision there has been no step taken by the respondent following the filing of submissions by Counsel for the Appellant, despite the Registry being informed that Mr Darke of the Combined Beneficiaries Union would be taking over representation of the respondent. [3] Despite repeated requests, no submissions were forthcoming on the respondent's behalf, and at a Directions Hearing before me on 3 September 2008 there was no appearance from Mr Darke or any person representing the respondent and I directed that the respondent file any submissions within 28 days of service of the Directions Notice. 2 [4] The Registry has subsequently been advised that the Combined Beneficiaries Union were not representing the respondent and subsequent correspondence direct with the respondent at his last known address has not been acted upon. [5] At a further Directions Hearing on 10 September 2009, and again at which there was no appearance of the respondent, I directed that the appeal be determined 'on the papers' and that Counsel for the Appellant provide the Court with the relevant medical reports, and this has now been done. [6] The relevant background facts in this case are as follows: In December 2004 the respondent, then aged 40, began experiencing acute abdominal pain. . It seems that the cause of his pain was not identified but it was believed that the pain could be appendicitis and on 23 December 2004 the appellant underwent an appendectomy. . In the course of that surgical procedure his appendix was found to be normal. . The pain which the respondent had been experiencing prior to that appendectomy continued, although its source shifted from the lower abdomen to almost entirely into the right testicle. . In the course of 2005 and 2006 the respondent underwent a number of investigative procedures and various treatments without success. His pain continued. . On 4 September 2006 the respondent lodged a claim for cover for a treatment injury stated to be: "Chronic pain - right iliac fossa". . The appellant investigated the claim and obtained medical records from the respondent's GP and specialists to whom he had been referred. Consequent upon the medical information it received, the appellant determined that the respondent had no entitlement to cover for a treatment injury as no injury, within the meaning of the Act, had been identified. The appellant issued a decision to that effect on 15 September 2006. The respondent sought a review of that decision and that review application was acknowledged as being received by the appellant on 18 December 2006. For whatever reason, it is the case that the appellant did not act on that application for review and no review hearing was set within the three month period as required by Section 146 of the Act. . On 12 April 2007, with no review hearing having been set the Respondent's Advocate requested that a deemed decision in the respondent's favour come into effect . On 23 April 2007 the appellant issued a decision accepting that the respondent had a deemed review decision in his favour pursuant to Section 146(1) of the Act. It is that review decision, which granted cover to the respondent for a treatment injury, which is now the subject of this appeal. [7] The Court has been provided with medical reports of examinations and investigations into the respondent's pain problem after the appendectomy operation, and the first such report was from Dr David Dunlop, Vascular Surgeon, dated 23 February 2005. He noted that the pain had shifted from the right lower abdomen, where it had been at the time of the appendix operation, to be now almost entirely in the right testicle. [8] Dr Dunlop obtained a CT scan and the report of that scan stated that the cause of the right abdominal and groin pain had not been identified. Dr Dunlop stated, inter alia, as follows: 'This man's pain persists and the CT scan shows a calcified lesion in the pelvis thought to be a phlebolith but from his symptoms now I would think it is more likely to be a ureteric calculus." Dr Dunlop saw the appellant again in June 2005 and he reported to the respondent's GP, Dr Gilchrist who stated, inter alia, as follows: "As you are aware all the investigations are negative including a CT and IVU as well as a midstream urine analysis. I must say I thought we were dealing with a renal calculus here but that seems to have been excluded by these findings and all I can think of is that the pain that lead to h is appendicectomy was replaced by a pain generated from the abdominal incision itself with perhaps some nerve entrapment to account for the scrotal pair To this end we have injected it with local anaesthetic today and sent him away to see if it has some effect. When we can get an idea of whether this can help him or not we will probably refer him on to the Pain Clinic for further management as it seems highly unlikely that there is any intra-abdominal pathology to account for this pain." [9] In a further report to the respondent's GP in August 2005, Dr Dunlop advised as follows: 'I really do not know what to do with him, but I believe we have excluded any surgical cause short of excising his appendix incision in the hope that we might (sic)nerve entrapment in it. I do not have anything more to offer at this stage. He did not really feel that injection with local anaesthetic was particularly helpful, but I would like to get another opinion on him and Jurriaan De Groot might be prepared to see him, as it is really an issue of his rehabilitation back into the work force after quite a period off." [10] Dr Dunlop referred the respondent on to the Medical Rehabilitation Centre at Mid Central Health, and he was seen there by Dr Jane Grant on 12 September 2005. She identified that he was complaining of constant pain mainly in the region of the right iliac fossa. She then stated: "This man has developed persistent abdominal pain which is neuropathic in nature as characterised by the burning, throbbing pain.' [11] The next report is from Mr J M Chrisp, Consultant Urologist, and he reported to the respondent's GP on 13 March 2006 and he stated as follows: "At this stage we are uncertain as to what the origin of Mr Searancke's pain is. It may be a post appendicectomy neuropathic pain and if so there is not much that the Urology Service can offer to the management of this. We have not arranged to see him again, but would be happy to do so if there are any further concerns." [12] In a further report from Dr Jane Grant dated 1 May 2006, she again identified that the respondent was experiencing right iliac fossa pain which radiated down into the right testicle. Again she did not have any advice as to the cause of this pain. [13] That was the state of the respondent's medical condition at the time he lodged his claim for cover, and as noted, the claim for cover was in fact for chronic pain in the right iliac fossa, the contention being that this was a treatment injury suffered as a consequence of the appendectomy. [14] The statutory provisions relevant to the issue in this appeal are Sections 32 and 33, particularly Section 32 in this case. The primary feature must be that there has been a personal injury suffered in the course of treatment [15] Section 26 of the Act identifies that personal injury means a physical injury, that is, an injury which involves physical damage or hurt. It is that physical damage or hurt which must be shown to have been caused by treatment from a registered health professional. [16] In the case of this appellant there is no dispute that he underwent treatment in December 2004 by way of appendectomy. But it is equally the case that the respondent's appendix was normal, and therefore the operation did not in fact achieve anything, and the subsequent medical reports identify that the respondent continued to experience the pain which he had earlier been experiencing and which had given rise to the appendectomy operation. 5 [17] The respondent has undergone subsequent X-ray and CT Scans and has had significant investigation from specialists and the bottom line is that there is no evidence to identify any physical injury as causing his pain, let alone it being from a physical injury caused by the appendectomy operation. [18] The respondent was seeking cover for chronic pain and if that had been shown to be the downstream consequence of a physical injury suffered by treatment, which was not a necessary part or ordinary consequence of the appendectomy, then he may have been entitled to cover, but the fact is that there is no evidence of any such physical injury having been suffered by medical treatment, and indeed the cause of the respondent's ongoing pain is still not known. [19] For the foregoing reasons, therefore, I find both as a matter of fact and law, that the respondent is not eligible for cover under the Act for his claimed treatment injury, and the appellant's primary decision to that effect was correct. [20] The respondent, having been deemed to have had a review decision in his favour by operation of law, it is that decision which I now find cannot be sustained from a substantive perspective, and the review decision deemed to have taken effect on 18 March 2006 is hereby quashed, and the appellant's primary decision of 15 September 2006 declining to grant cover is hereby reinstated. [21] For the foregoing reasons, therefore, this appeal is successful. DATED this (Of day of March 2011 M J Beattie District Court Judge