Jans v Accident Compensation Corporation

IN THE DISTRICT COURT AT PALMERSTON NORTH [2014] NZACC 80 ACR 484/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT ETWEEN ANDREW GROOT JANS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 January 2014 Appearances: The appellant on his own behalf (no appearance) Ms K Berry for the respondent Judgment: 25 March 2014 RESERVED JUDGMENT OF JUDGE DENESE HENARE [1] The issue in this appeal is whether the appellant has cover for a treatment injury. [2] The appellant argues that he experienced a treatment injury as a result of medication prescribed to treat his arthritis and the respondent incorrectly declined cover for such injury by decision of 24 January 2012. Background [3] On 3 March 2011 the appellant was prescribed Leflunomide by Dr Anthony Gear, Rheumatologist, to treat his arthritis. [4] On 8 June 2011 the appellant was examined by Dr Gear who then wrote to the appellant's GP, Dr Johansen: a. Psoriatic Arthritis Initially he felt awful on the Leflunomide and his blood pressure went up. However he persisted with it and he now feels that his joints are significantly better. [5] In August and September 2011, the appellant began to experience severe headaches. On 2 September 2011, the appellant visited Dr Johansen and complained of these headaches. [6] On 12 September 2011 the appellant was admitted to Palmerston North Emergency Department by ambulance. The appellant was assessed as having gastric reflux causing chest pain and was discharged that night. The hospital notes record: Became SOB and then had central chest sharp pain radiating round left side............ Developing numbness/tingling in right arm, left hand and right foot since arriving in department. Feels right leg is weak. Headache right sided, constant mild dull ache, episodes of worsening pain. Imp: likely gastric reflux causing chest pain, anxiety. Plan: GP to review hypertension and headache please. [7] On 20 September 2011 the appellant returned to Palmerston North Hospital and was examined by Dr Carija, Consultant Neurologist, following referral by the House Surgeon: This is in receipt of your referral of 14 September 2011 regarding this 57 year old gentleman. I note that the referral is to the TIA Clinic, which is a rapid access clinic for patients deemed at imminent risk of stroke, but taking a look at the hospital records for your patient I note that this was generated during a short admission to MAPU and the presenting symptoms were primarily chest pain radiating to the left arm and pain when touching the left arm of the patient. I note that the patient was treated with Panloprazole as the pain was deemed of non-cardiac origin, and was comfortable on discharge. The details above would not indicate any serious suspicion of a cerebrovascular event. With this in mind I am unable to allocate an appointment in the TIA Clinic. If there were clinical details known to you but not clear from your referral form, please feel free to ring me to re-discuss the situation. [8] On 11 October 2011 Dr Johansen wrote to Dr Gear and advised he had discontinued Leflunomide and requested a review of the appellant: Would you please be able to arrange to review [the appellant] for your opinion regarding his recent symptoms and possible reaction to Leflunomide. This medication was started back in March with some modifications to his medication regime. However, since that time he has been unwell with increased headaches, intermittent chest pain, and worsening hypertension. He also complains of some tingling and pins and needles affecting both of his hands and feet. Over this time there have been a number of attendances to the emergency Department and he has been admitted overnight on some occasions. He is presently waiting for an exercise ECG. On the balance, we wonder whether it may have been the Leflunomide and today have discontinued this medication. It will be interesting to see if his other symptoms improve, but in the meantime his psoriatic arthritis is now likely to deteriorate so we would appreciate your advice. [9] On 5 December 2011 Dr Gear reported improvement in the appellant's arthritis and noted: 2. Psoriatic Arthritis Over the last week since stopping the Leflunomide he feels his arthritis may be flaring a little in his left hand. He has symptoms in the left middle finger. On examination there is some very minimal swelling of the left middle and left index PIP joints. They do not warrant increasing his disease modifying medication now. However, it is possible that this is the beginning of a major flare in which case we would like to see him back sooner. 7. Intolerance of Leflunomide He had some fairly non-specific symptoms including headaches and paraesthesize which settled on stopping the Leflunomide. Because of his symptoms he was assessed in ED and various investigations were ordered. He is due to have an ECG in January. I will review him in one year or sooner if he has a flare. [10] On 24 January 2012 the respondent's Treatment Injury Report noted: ... After taking doses of the Leflunomide, [the appellant] developed headaches and paraesthesia for which he attended Palmerston North ED. Upon examination, no physical injury was recorded. Upon further investigation, the headaches and paraesthesia were discovered to be effects of the Leflunomide. [11] On 24 January 2012 the respondent declined cover on the basis that the appellant's claim did not meet the criteria of a treatment injury. [12] On 4 May 2012 Dr Johansen wrote a letter in support of the appellant's claim that "the symptoms experienced by him were as a result of an adverse reaction to Leflunomide": Relevant Law and Legal Principles [13] Sections 32 and 33 of the Accident Compensation Act 2001 sets out the provisions relating to treatment injury. 32 Treatment injury (1) Treatment injury means personal injury that is- (a) suffered by a person- (i) seeking treatment from 1 or more registered health professionals; or (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or ifi) referred to in subsection (7); and (b ) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including- (i) the person's underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: a) personal injury that is wholly or substantially caused by a person's underlying health condition: (b) personal injury that is solely attributable to a resource allocation decision: (c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. [14] Section 20(2)(b) provides for cover where personal injury is a treatment injury. [15] Personal injury is defined by section 26 of the Act and includes 'physical injuries suffered by a person'. [16] The underlying principle in accident compensation law is that pain (or numbness) is not a personal injury. This principle was endorsed by the High Court in Teen v ARCI Corporation (HC, 11/11/03, CIV-2003-485-1478). [17] Recent decisions in which the Court has considered this issue include: Longtime v ACC [2012] NZACC 188 - claim for back pain from a hide process worker under the gradual process provisions of the Act. The claim was for pain but no structural injury. The Court confirmed that no "personal injury" had been established for ACC purposes and the claim had been correctly declined. Meneses v ACC [2012] NZACC 328 - this was a treatment injury claim for a dispensing error. The patient had been prescribed Zopiclone instead of Loratadine. The error had caused the patient functional difficulties but no physical damage. The Court confirmed that ACC had been correct to decline the claim for treatment injury as no "personal injury" had been shown. Baldwin v ACC [2013] NZACC 78 - this was a claim for hip and thigh pain attributed to repetitive jumping during timber yard work. The Court confirmed that pain in isolation did not constitute "personal injury". Alexander v ACC [2013] NZACC 111 - this was another gradual process type claim - this time from a librarian with chronic wrist pain. While the Court accepted that work had caused chronic wrist pain, it confirmed that chronic pain was not of itself a "personal injury" for ACC cover purposes. Decision and Analysis [18] The appellant provided written submissions but did not appear at the hearing. The appellant submitted that the drug Leflunomide prescribed to treat his arthritis caused severe headaches, hypertension, chest pains and numbness (paraesthesia) and in consequence, he suffered "medical misadventure",(this term was replaced by section 32 of the Accident Compensation Act 2001 on 1 June 2005). The appellant submitted that the medication "poisoned" his system. [19] Ms Berry for the respondent submitted the respondent accepts that Leflunomide caused the appellant's symptoms of headaches, paraethesia and numbness. However, these symptoms are not personal injuries under the Act. The various other symptoms experienced by the appellant, for example, swelling in the fingers and ankles are symptoms of the psoriatic arthritis. [20] It is apparent that three main issues arise: whether the appellant's headaches and numbness amount to personal injury under the Act; whether the appellant's hypertension and chest pain were caused by Leflunomide; whether the appellant suffered poisoning as a result of Leflunomide. [21] In beginning my analysis I note there can be no doubt that the appellant experienced symptoms which he found debilitating to the extent he could not work. I acknowledge the appellant's condition was of great concern to his wife and she had to reduce her hours of work to care for him. However, Dr Gear and Dr Johansen agree that Leflunomide provided benefit to the appellant's arthritis. [22] The principal issue is whether the headaches and numbness caused by the Leflunomide prescription constitutes personal injury under the Act. The cases referred to at paragraphs 15 and 16, show physical injury must involve physical damage and hurt, that is, bodily harm or damage. Headaches and numbness are non physical conditions. I find there is no evidence of any physical injury being suffered the appellant as a consequence of taking Leflunomide. Whilst Leflunomide caused headaches and paraethesia, these symptoms do not amount to a personal injury within the meaning of the Act. [23] The appellant experienced hypertension and chest pains. The question is whether these medical conditions were caused by Leflunomide. I turn to consider the evidence. The appellant was diagnosed with hypertension before he was prescribed Leflunomide. I take into account Dr Gear's report of 3 March 2011 which records the appellant's hypertension as a pre-existing 'problem' and Dr Gear requested Dr Johansen to keep an eye on this condition. [24] The hospital notes on 20 September 2011 show that the appellant's chest pains were due to gastric reflux. [25] Finally, the appellant claims that his system was poisoned by Leflunomide. There is no medical evidence before me that supports the appellant was poisoned by Leflunomide. [26] In summary, I find that: The Leflunomide caused the appellant's headaches and numbness but these symptoms do not constitute personal injury under the Act; The hypertension was a pre-existing condition and not caused by Leflunomide; The chest pain was caused by gastric reflux and not caused by Leflunomide; There is no evidence the appellant's system was poisoned by Leflunomide. [27] The appeal is dismissed. [28] There is no issue as to costs. frese I Herave Judge Denese Henare District Court Judge ACR484-12GrootJans.doc(vjr)