Bartkus v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH WELLINGTON REGISTRY [2012] NZACC 36 Al 515/08, ACR 267/10, ACR 283/11 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 149 of the Act BETWEEN ANTIONETTE LOUISE BARTKUS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 5 July 2010 and 3 October 2011 DATE OF THIS DECISION 8 February 2012 APPEARANCES The appellant on her own behalf Ms A L Shakespeare, counsel for ACC RESERVED DECISION OF JUDGE P F BARBER The issues [1] There are three appeals to be addressed. Two are related (515/08 and 283/11 about alleged treatment injuries), and the other (267/10) addresses a late application for review. Appeal Al 515/08 [2] The appellant appeals against ACC's decision that her gynaecological complaints was not caused by the administration of certain prescription medications in about 1977. That was to treat amenorrhea following the birth of her son 10 months earlier. 2 [3] This matter has been considered by this Court on a number of occasions. At the conclusion of argument for both parties 5 July 2010, the appellant raised the apparently new claim that the prescription medication had actually caused papillary carcinoma. This claim had not been a subject of ACC's initial decision, so the matter was adjourned by me, sine die, so that ACC could seek medical information on that claim. [4] However, as Ms Shakespeare put it on 3 October 2011, it appears that the appellant has abandoned this argument. Accordingly, this appeal is dismissed. Appeal ACR 283/11 [5] Following the adjournment of appeal Al 515/08, and as directed by this Court, ACC sought further medical information from Dr Philippe Mercer who advised: "there is no evidence based literature to support the link between Stilboestrol, Oestriadol, and Norethisterone in aetiology of papillary thyroid carcinoma." [6] In reliance on this advice, ACC issued a decision on 11 October 2010 declining cover for the appellant's papillary thyroid carcinoma, as no link could be established between the alleged treatment and the injury. [7] At Review (before Ms L Edmondson on 15 February 2011), the appellant sought to argue that: [a] There was a treatment injury under s.32 of the Act because the treatment caused the papillary thyroid carcinoma; and [b] There was a treatment injury under s.33 of the Act, because the medications were allegedly administered without informed consent [8] The Reviewer rejected both of these arguments in her decision issued on 28 April 2011 in which her analysis read: "Analysis The issue I must decide is whether Ms Bartkus' papillary thyroid carcinoma should be considered a treatment injury under the Act. Ms Bartkus has made two separate arguments to support a finding of treatment injury. I will address both. Did hormone therapy cause Ms Bartkus' cancer? It is not disputed that Ms Bartkus suffered thyroid cancer or that this constitutes a physical injury. The question is whether medical treatment caused her injury. Under section 32 of the Act, Ms Bartkus must show that the hormone therapy caused her cancer. Several medical experts have commented on this question. First, Dr Fenton commented in May 2010: 'I have discussed this case with a number of colleagues, reviewed the literature and have been unable to find any studies in humans that would support a link between a brief course of stilboestrol, ethinyl oestriadol and 3 norethisterone in 1977 with the subsequent events of the 1990s and early 2000s.' After Judge Barber indicated his view that Dr Fenton's opinion did not rule out the possibility of a causal connection, ACC consulted Ms Mercer. Ms Mercer discussed the case with a thyroid physician. She reported that there was 'no evidence-based literature to support the link' between Ms Bartkus' hormone therapy and her cancer. To counter this evidence, Ms Bartkus provided her own medical research. She submitted articles from the Internet and photocopied from books. Unfortunately for Ms Bartkus, I do not consider that I can give weight to this evidence without the assistance of specialist comment. As a lay person, Ms Bartkus is not qualified to interpret the literature. I do not find that the medical literature provided by Ms Bartkus outweighs the opinions of Dr Fenton and Ms Mercer. Did Ms Bartkus give informed consent to the hormone therapy? Under section 33, 'treatment' includes the failure to obtain informed consent. Ms Bartkus alleged that her doctor administered the hormone therapy without her knowledge, and then falsified her records to cover his crime. Having heard Ms Bartkus' evidence and reviewed her file, I am unable to conclude that Ms Bartkus was deceived as she believes she was. It appears more likely that Ms Bartkus was given a brief course of hormone therapy in 1977 to treat amenorrhoea. There is no credible evidence that this was done in a deceptive manner or without her informed consent. Conclusion ACC correctly found that Ms Bartkus' papillary thyroid carcinoma cannot be considered a treatment injury because there is no evidence linking this injury to treatment. I dismiss the application for review." [9] Reviewer Ms Edmondson had also set out the following helpful background: "Background In an earlier review hearing, Ms Bartkus claimed she had been injured by hormone drugs her doctor gave her in the 1970s. That matter went before Judge Barber on 5 July 2010. At that hearing, Judge Barber found there was insufficient evidence to link administration of the drugs to Ms Bartkus' gynaecological injury. The Judge considered, however, that there may be a link between the drugs and Ms Bartkus' thyroid cancer. Judge Barber directed ACC to arrange a specialist review of the matter and issue a fresh decision. On 11 October 2010, ACC decided it would not accept cover for Ms Bartkus' thyroid cancer as a treatment injury. Ms Bartkus lodged an application for review on 20 October 2010. ACC's medical evidence As directed by Judge Barber, ACC referred Ms Bartkus' file to Ms Philippa Mercer, general surgeon. Ms Mercer is the surgeon who performed 4 Ms Bartkus' thyroid lobectomy surgeries in 2002. Concerning the potential link between the drugs Ms Bartkus took and her thyroid condition, Ms Mercer said: I have discussed the enquiry with Dr John Turner (Thyroid Physician). Both Dr Turner and I have found no evidence-based literature to support the link between Stilboesrol, Oestradiol, and Norethisterone in the aetiology of papillary thyroid carcinoma. Papillary carcinoma of the thyroid is the commonest carcinoma found within the thyroid gland and frequently occurs in both lobes. For most people it presents sporadically. There is association with previous radiotherapy or nuclear incident e.g. Chernobyl. In a few people it can run in the family. Ms Bartkus' Case Ms Bartkus attended the review hearing and gave evidence. She said her doctor gave her hormone drugs in 1979 and that he did so with the intent of giving her cancer. She said there was no legitimate reason for her doctor to give her the hormones because she was a healthy new mum. She also claimed that her doctor had falsified her medical records, which show that she received the drugs in 1977 when really she received them in 1979. She said her doctor backdated the records in order to make it look like she had taken the drugs closer to the time she was admitted to Sunnyside psychiatric hospital. Ms Bartkus also supplied medical literature which she believes supports a link between hormone therapy and cancer. ACC's case Mr Gardiner submitted that there was no evidence linking the hormone therapy Ms Bartkus received and the development of papillary thyroid carcinoma. ACC relied on the opinions of Anna Fenton, endocrinologist, and Philippa Mercer, surgeon. Mr Gardner submitted that Ms Bartkus' medical literature was not sufficient to prove her case because it was not accompanied by specialist comment." Relevant Law [10] Section 32 of the Act defines "treatment injury": [11] Section 33 of the Act provides: "(1) For the purpose of determining whether a treatment injury has occurred, or when that treatment injury occurred, treatment includes - . .. (e) obtaining, or failing to obtain, a person's consent to undergo treatment, including any information provided to the person ... to enable the person to make an informed decision on whether to accept treatment." 5 [12] In Morgan v ACC (218/2003), decided under the old medical error provisions, the appellant's claim failed because the appellant should not establish causation between the alleged failure to obtain informed consent and the condition she now suffered. Discussion [13] The key issue is causation. However, there is no evidence to establish a causal link between the medications the appellant took, and the condition she now has. Without this link, there can be no cover. [14] Section 33 of the Act does not rescue the appellant from having to establish that the treatment caused an injury. The Act does not provide cover for treatment on its own; rather the treatment has to cause an injury. [15] Even if the appellant was able to establish that she did not consent to the administration of the medications, the medication in itself is not an injury (in contrast to, say, surgery performed without consent, where the fact of surgery is within the definition of personal injury in s.26 of the Act). The appellant must show that a physical injury resulted - i.e. that the medications caused her carcinoma. [16] The only evidence on this point is that of Dr Mercer who says that there is no evidence to establish such a link. [17] As to the issue of lack of consent, only the appellant's evidence is available. I note that at the same time as the treatment, she was also affected by post-partum psychosis, for which she was treated with psycho-active drugs, and was a hospital patient pursuant to s. 19 of the then Mental Health Act 1969. It is possible that her recollections of her treatment are affected by her then medical conditions and treatment. [18] There is no convincing evidence on which I can conclude, on the balance of probabilities, that the appellant's treatment with Stilboestrol, Oestriadol, and Norethisterone caused her to later contract papillary thyroid carcinoma. This appeal is also dismissed. ACR 267/10 [19] This is the appellant's appeal against ACC's 22 December 2009 decision declining to accept a late application for review of its substantive decision of 13 February 2009. ACC's decision was that no extenuating circumstances existed such that the appellant should be able to lodge an application for review later than three months after the date of the decision. Background [20] On 6 January 2009, the appellant's general practitioner submitted an ACC45 form seeking cover for an injury relating to radiological procedures. The date of accident was put as 30 June 2008. [21] On 13 February 2009, ACC issued its decision on cover saying, among other things: 6 "We are unable to approve your claim because it relates to a previous claim that you have made for the same injury, which unfortunately we were unable to approve. Enclosed is a copy of our decision letter to you on 1-07-2008 letting you know we had to decline your previous claim 10002424629 and advising you of your rights to formally review the decision." [22] Mrs Bartkus filed an application for review of that earlier decision (10002424629), which was unsuccessful. On 9 December 2009, Mrs Bartkus sought a review of a later, 6 January 2009 ACC decision (i.e. on a duplicate application). The reasons for the application were described as: "GP - no information concerning risk to patient involving scans. I was sent to every avenue for radiation exposure other than Christchurch Womens Hospital. Scans are not done there. I was told of the cost of CT scan but not cost of all risk to myself. Since I have been told it is equal to standing 2 blocks from Hiroshima." [23] The duplication of claims is a little puzzling. The same issue (of injury to the carcinoma due to radiation) seems to have been dealt with by ACC on 6 January 2009 and on 13 February 2009; but the appellant did not file an application for review until 10 months had passed and the statutory time limit is three months from ACC's decision. [24] In answer to the question why the application for review was made outside the three month time limit, Mrs Bartkus said: "ACC telephone worker said I had no coverage concerning radiation. I have since been told this is not true. CT 2000/100005421350 were declined." [25] On 11 December 2009, ACC sought further information from Mrs Bartkus to enable it to consider the issue of extenuating circumstances. On 16 December 2009, Mrs Bartkus wrote to ACC confirming the explanation that she had been given wrong information, which discouraged her from filing an application. [26] ACC's decision of 22 December 2009 set out its position as follows: "... You wrote in your letter dated 16/12/09 that you had been told wrong information that discouraged you from filing an application. I spoke to you on 22/12/09 regarding this information that you had been told. You stated that you could not remember who exactly discouraged you from filing an application, but this conversation took place with a male ACC employee around 30/6/08. The claim in question was not lodged until 20/12/08, and a decision letter was not issued until 13/2/09. It would seem impossible that an ACC employee could discourage you from reviewing a decision made on a claim well before that claim had been lodged, let alone before a decision was even issued." 7 [27] At Review, Mrs Bartkus expanded on the reasons why her application for review was not made within the three month period. In addition to the alleged wrong information ground, Mrs Bartkus explained: [a] She was a "pain sufferer", and had not been well during that period; [b] She was confused by the proceedings and her memory was not 100%' [c] She had been very busy and was trying to do too many things. She needed a secretary; and [d] She was unable to remember all the relevant events and was trying to cope with the disability of being harmed. [28] The substance of this claim is that radiation caused the appellant's papillary thyroid carcinoma. In substance, this claim seems contradictory to the claim in appeal ACR 283/11 which was based on an allegation that prescription medicine had caused the appellant's carcinoma. [29] On 18 March 2010, the Reviewer, Jonathan Houghton, dismissed the appellant's review application. Relevant Law [30] Section 135 of the Accident Compensation Act 2001 provides that an application for review must be made within three months of the date of the decision for which the applicant seeks review. The only exception to this requirement is set out in s. 135(3) of the Act which provides: "(3) Despite subsection (2)(f) and (g), ... the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as - (a) where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or (b) where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or (c) where the Corporation failed to notify the claimant of the obligations of persons making an application." [31] In Kohe (95/05), Beattie DCJ held: ".. the meaning and purpose of the provision is that the extenuating circumstances must relate to the ability of the claimant to lodge the application within a three month period. It cannot extend to cover extraneous reasons such as capriciousness, forgetfulness, or any circumstances that are within the control of the claimant. 8 [32] That passage has been cited with approval in numerous subsequent cases Including Hafi (107/2009) and, paraphrased in Green (Al 200/07) where Beattie DCJ said: "The three examples provided for in s. 135(3) make it clear that such circumstances do not extend to reasons such as forgetfulness, capriciousness, or situations which don't pertain to the claimant personally." [33] In Williams (78/2004), Judge Cadenhead set out a two-stage test for the Courts to apply in cases such as this "The extenuating circumstances must have affected the ability of the claimant to meet the time limit. This is a threshold question that the appellant must satisfy, before considering the width of the examples and whether or not the excuse put forward falls within the range of the three statutory examples given, or indeed, whether or not other factual circumstances not akin to the statutory examples given may suffice as extenuating circumstances." [34] Additionally, the circumstances to be considered when an extension is sought do not include the length of time which passed before filing an application for Review after the three month period has expired. Accordingly, even a comparatively short delay does not weigh in consideration of whether time should be extended or not: Green (Al 200/07). Discussion [35] The first question is whether anything in particular has happened such that the appellant was unable to file an application for review within the time period. The evidence falls into two categories. [36] The first category is the allegation that ACC discouraged the appellant from making an application for review. However, this allegation cannot be established on the balance of probabilities. The decision letter provided to the appellant advised her of her review rights. The appellant's evidence about the alleged advice discouraging her from pursuing review seems confused in that she appears to believe that the advice was given before the ACC decision of 13 February 2009 (declining cover for carcinoma from radiation) was issued. [37] Also, the appellant has had experience with the review process as she went through that process in relation to her earlier claim. This tends to suggest that she was familiar with review rights, and with relevant sources of helpful information. [38] There is no evidence on which I could be satisfied that the appellant was given misleading information from ACC about her review rights. [39] The second type of evidence advanced by the appellant asserts ill health, business, and confusion on her part. [40] However there is no medical evidence adduced to confirm that the appellant was particularly suffering from ill health in the period between ACC's decision, and the application for review some 11 months later. In fact, while the medical evidence shows that the appellant is on occasion confused and in pain, she seems to have generally managed to cope well with such disabilities, and functions sufficiently to regularly attend university where she is studying a Masters programme. 9 [41] Also, during the same period over which the appellant did not file an application for review in this claim, she was actively pursuing an application for review on another claim. This tends to show that there was no particular disability which prevented her from attending to pursue a review of ACC's 13 February 2009 decision and that the failure to do so within the three month time period was more a matter of forgetfulness or capriciousness, rather than some type of extenuating circumstance. Having said all that, I have perceived over a year or two that the appellant does not seem to keep good health; but I cannot be satisfied, on the balance of probabilities, that it hindered her considering or meeting her review rights. It is satisfying that she copes with university life. [42] I find that Mrs Bartkus has not shown any particular circumstances which either of itself or in combination prevented her from filing an application for review by 13 May 2009. [43] Finally, I consider that it is relevant that the application for review relates to the same substantive circumstances already addressed in an earlier ACC decision, which went to Review. It does not seem unfair to the appellant that this intended review not proceed, because the substantive issue has been previously dealt with at Review. [44] I consider that there is no relevant extenuating circumstances which excuses the late filing of Mrs Bartkus' application for review. Accordingly, this appeal is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 515-08.doc(aw)