Greenland-Tangipo v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 28/2003 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN BESSIE GREENLAND-TANGIPO of Levin Appellant (Appeal No. AI 539/01) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 3 February 2003 APPEARANCES/COUNSEL J M Miller for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON [1] The issue in this appeal is whether the appellant is entitled to cover for a mental injury following an assault on 3 September 1983. The Facts [2] The appellant lodged a claim for cover on 8 March 2001 in respect of a head injury sustained in an assault on 3 September 1983. The respondent accepted that the appellant was entitled to cover. [3] After the appellant applied for an Independence Allowance and the necessary Whole Person Impairment Assessment was made a Review Officer found that the assessment had not considered the possibility of mental consequences arising from the injury sustained in 1983, and the possibility of post-traumatic stress disorder. The Review Officer directed the respondent to consider that issue. [4] As a result of further investigations arising from that direction the respondent issued a decision on 27 July 2001 which states: 2 “The recent review decision regarding your application for independence allowance has been returned by the reviewer with the recommendation that ACC give consideration to the issue of a ‘post traumatic stress disorder’ and whether or not there is cover for this in terms of the legislation. Therefore I must inform you that although your claim for a head injury that occurred on 3.9.83 has been accepted by ACC, under s.29(c) medical evidence does not support a causal link to any mental consequences and therefore must decline entitlements under this claim.” [5] The circumstances of the assault were recorded in a report to the appellant on 8 May 2002 by Dr A B Marks, a Consultant Psychiatrist. He set out the appellant’s record of what occurred on 3 September 1983 as: “In the description on 26 February she said that the assault occurred at the home where she and her ex husband were living in Patea. It would have been 6 or 7 o’clock in the evening, she thinks that there was still some daylight and could not remember the nature of the day or the stage in the year. During the day her ex husband had been drinking with nephews and nieces and had phoned her a number of times suggesting they would come home and continue drinking at the home of Ms. Greenland-Tangipo and her ex husband. She had repeatedly said they should not so that when she opened the back door to find her ex husband with nephews and nieces, quite a large group in all, she told them to go away and turned to re-enter the back door. She said they were jeering at her and laughing at her, and she remembers that this was so. She then experienced a blow to the back of her head and found herself down a number of steps that led up to the back door and on the grass. She recalls trying to crawl, shouting out for help a number of times and of lying at the bottom of the steps which she could not get up. It was only afterwards she learnt that an ashtray had been used to strike her on the back of the head, perhaps by throwing or still held. It was kept outside the back door so that people would smoke outside. When on the grass the others had gone and she said that they were starting to get back into their cars when she was struck and she also remembers somebody trying to approach with a flagon or something containing flagons. She described a young woman from next door coming along the road, hearing her and then going to get her grandmother who came over and organized medical assistance. She was attended by Dr. McKenzie and remembers a comment about holding the back of her head together. She understands she was examined and it was some time before the grandmother located the wound on the back of her head.” [6] The record from the Patea Hospital stated that the appellant was admitted at 23.30 hrs with a lacerated scalp, which was sutured. She was kept in overnight and appears to have been discharged the following afternoon. [7] At the time it issued its decision on 27 July 2001 the respondent relied on the following medical reports: 3 [a] A report from a Neurologist, Dr Mossman, dated 29 May 2000, in which he reviewed the appellant’s history and complaints and concluded, “I have explained to Bessie that I think that headaches occurring after head injuries are common and although hers has been present for many years, I think it is likely that she has post traumatic headaches with a migrainous component.” [b] An MRI scan on 9 September 2000 concluded, “Normal MR head. No cause for headache demonstrated.” [c] A report dated 17 December 2000 from Ms Kay Cunningham, a Neuropsychologist/Clinical Psychologist, concluded: “Bessie does appear to have some elements of chronic Post- traumatic Stress Disorder from the assault event, which has over time been maintained by a personality style prone to anxiety.” [8] The appellant applied for a review of the respondent’s decision of 27 July 2001. In dismissing the application the Reviewer found: “While there is no dispute about the symptoms of anxiety/depression/ headaches/dizziness etc Mrs Greenland-Tangipo suffers, it is my view that the recent medical evidence upon which Mr Miller relies is, in Dr Mossman’s case, not based on the available contemporaneous medical evidence, and in Drs Mossman’s, Neser’s and Cunningham’s case somewhat uncertain as far as causation rather than to the standard of proof on ‘on the balance of probabilities.’ I am therefore not satisfied that the current mental symptoms have a causal connection to the injuries/accident of 1983 and I confirm ACC’s decision. This application for review is dismissed.” [9] It is against that decision which the appellant has appealed. Decision [10] In support of the appeal the appellant filed a report from Dr Marks dated 8 May 2002 from which I have already recorded the appellant’s description of the assault. Dr Marks reviewed the whole history of the appellant’s complaints and the previous medical reports, from which he concluded that the appellant suffers post-traumatic stress disorder. Dr Marks noted that the appellant had reported that the symptoms of the disorder had commenced from the time of the assault and continued up to the time of his examination. He stated, “Post Traumatic Stress Disorder becomes more prominent and severe even years after the traumatic event which started the Disorder.” [11] Dr Marks found: “The specific content of Ms. Greenland-Tangipo’s preoccupation with the horror and fear that she was going to die following the assault defines that it was the assault rather than the many other traumatic aspects of Ms. Greenland- Tangipo’s life during her years with her ex husband has caused the Post Traumatic Stress Disorder. The other stressful and potentially traumatic experiences may have made her more vulnerable to develop Post Traumatic 4 Stress Disorder following the September 1983 assault and secondly may have helped perpetuate its occurrence. The triggering event however appears to have clearly been the September 1983 assault, followed as it was by her horror and fear that she was going to die.” [12] After the respondent received a copy of Dr Marks’ report it wrote to him with two specific questions. His reply of 14 October 2002 states: “1. Has Mrs. Greenland-Tangipo suffered her post traumatic stress disorder because of the physical injuries she received when assaulted in 1983? No. I consider that her Post Traumatic Stress Disorder has resulted from the psychological trauma to which she was exposed at that time and her perception of what was happening at the time that involved fear, considering she might die or experience serious injury or other physical injury to her physical integrity. Her description is of being horrified and of intense fear. I have described these in Conclusion 4.2.1 and 2. Another way of stating this would be to say that the PTSD was caused by the effects of the traumatic incident and not by the physical results of the physical injury. 2. Why did you refer to sections 78 and 79 of the 1982 Act on page 14 of your report? In particular, was reference to those provisions prompted by Mrs. Greenland-Tangipo indicating she thought she may be eligible for lump sum compensation? I referred to sections 78 and 79 of the 1982 Act on page 14 of my report as this is my usual practice in completing assessments in relation to Accident Compensation. I do not recall and do not have any record of this being prompted by Mrs. Greenland-Tangipo.” [13] As the appellant’s claim was lodged in March 2001 the issue for decision falls to be decided under s.29(1)(c) of the Accident Insurance Act 1998 which states: “29 ‘Personal injury’ (1) Personal injury means— … (c) Mental injury suffered by an insured because of physical injuries suffered by the insured; or ” … [14] Mr Miller submitted that while there was a physical injury at the time, it was sustained as part of frightening events which occurred at that time and which affected the appellant. He submitted that the wording of the section “does not specify that the mental injury must be purely or solely to the exclusion of all other causes.” [15] Mr Barnett submitted: “The evidence, and in particular the medical opinion, does not establish a post-traumatic stress disorder caused by the physical injury suffered in the assault. 5 Rather, the medical opinion indicates that any post-traumatic stress disorder suffered results from the psychological trauma of the assault.” [16] It is interesting that the wording of the section uses the wording “because of physical injuries” rather than “caused by physical injuries”. [17] Mr Barnett relied on Dr Marks’ statement that “the PTSD was caused by the effects of the traumatic incident and not by the physical results of the physical injury”. [18] I consider that the section was so worded because “post-traumatic” envisages as a first step that there be a traumatic incident. The stress which followed that incident for this appellant arose from the appellant’s immediate fear that she might die or experience further more serious injury. I consider that that is the whole concept of post-traumatic stress disorder. While a blow to the head might cause a serious brain injury I do not consider that that is what is contemplated by the concept of post-traumatic stress which is psychological trauma “post” the initiating traumatic event. [19] I consider that that is the proposition which Dr Marks was endeavouring to make in his reply to the respondent and that all the medical evidence indicates that the assault in 1983 was the event which triggered the post-traumatic stress disorder. [20] I consider that Dr Marks has clearly indicated the nature of the disorder and the fact that it would not be initiated by the physical injury per se, but resulted from the surrounding circumstances which immediately followed that injury. [21] I consider that on the basis of Dr Marks’ opinion, the post-traumatic stress disorder suffered by this appellant was “because of physical injuries”. [22] The whole of the circumstances of the incident in September 1983 subjected the appellant to an extremely frightening situation which was immediately preceded by the serious blow on the head. The medical evidence is that the rest of her problems over the years have flowed from that incident. [23] I consider that because s.29(1)(c) does not specify that the mental injuries are caused “by the physical injuries” but arise “because of the physical injuries” that is precisely the distinction made by Dr Marks. (My emphasis) [24] The appeal is allowed and the appellant is entitled to cover for post traumatic stress disorder. There will be costs to the appellant of $1,500. If the respondent has not met the cost of Dr Marks’ report then it is to do so. DATED at WELLINGTON this 6th day of March 2003 _____________________________ A W Middleton District Court Judge ai539-01.doc(aw)