Corkin v Accident Compensation Corporation (Mental Injury)

THE DISTRICT COURT AT ROTORUA [2017] NZACC 40 ACR 353/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BRENT CORKIN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 2 March 2017 Supplementary Memorandum received: 10 April 2017 Appearances: Mr Corkin appeared in person Ms Churstain for the respondent Judgment: 12 April 2017 RESERVED JUDGMENT OF JUDGE DENESE HENARE [1] The appellant, Brent Corkin was knocked over by a motor vehicle in Hamilton on the evening of July 2004. Mr Corkin spent two months in hospital with a right ankle fracture for which he received cover. Mr Corkin continues to suffer right ankle and foot problems. [2] In this appeal, Mr Corkin claims he has suffered a mental injury as a result of his physical injuries. Relying on the report of Dr Vickers, Consultant Psychiatrist, the Corporation declined Mr Corkin's claim on 19 November 2014, which was upheld at review. Facts [3] Four months after the accident, Mr Corkin was admitted to hospital for possible sepsis of his foot. [4] In 2005 Mr Corkin applied for lump sum compensation. [5] On 5 October 2005 Dr Meads, Impairment Assessor, undertook an impairment assessment and noted the state of Mr Corkin's limb was appalling. Mr Corkin's skin was infected, causing a marked inflammatory response and he was at risk of losing his foot. Mr Corkin's admission that he was a heavy drinker was noted by Dr Meads who opined this contributed to the way in which he was looking after himself. Dr Meads concluded the ankle injury was not stable and permanent and that it was not appropriate to assess whole person impairment. [6] In August 2006, following an assessment by Dr Mcdougall, the Corporation approved a lump sum payment based on 10% whole person impairment. [7] In November 2013 Mr Corkin applied for a reassessment for lump sum compensation and produced a medical certificate from Dr Williams, GP confirming that his covered injury was permanent and stable. [8] In February 2014, Dr Meads completed an impairment reassessment and concluded Mr Corkin had a 13% whole person impairment. The Corporation accepted Dr Meads' assessment and approved a further lump sum payment. [9] Mr Corkin did not consider the increased lump sum payment was sufficient. Represented by Wakefield Associates, Mr Corkin requested the Corporation reassess his eligibility for lump sum payment and investigate whether cover should be extended to chronic pain or any other mental injury as a consequence of the ankle injury. [10] In investigating the claim for a mental injury, the Corporation sought information from Mr Corkin, Dr Williams and Dr Vickers. [11] On 12 September 2014, Dr Vickers noted Mr Corkin had experienced a serious right lower limb injury requiring right ankle internal fixation surgery with a recovery complicated by poor wound healing. Dr Vickers noted Mr Corkin has a long standing history of alcohol dependency and drug use and has suffered seizures (epilepsy) for approximately 20 years. [12] Dr Vickers concluded whilst Mr Corkin suffered periods of depressed mood and mood swings after the 2004 accident, he did not meet the criteria for an AXIS I mental disorder caused by his covered injury. The relevant sections of Dr Vickers' report are as follows: 14. Personality assessment I do not consider Mr Corkin to have any DSM IV personality disorders. . . . 16. Formulation/summary Mr Corkin experienced serious right lower limb injuries in 2004, a bimaleolar fracture of the left ankle that required internal fixation. His recovery was complicated by poor wound healing as described in Dr Meads' 2005 report. Other matters of relevance are a long-standing history of problem drinking to the extent that he has served 14 prison sentences for DIC, a past history of problematic drug use and he has had epilepsy for approximately 20 years. In terms of mental consequences to his 2004 accident he reported periods of depressed mood and mood swings but he does not in my view meet criteria for an axis I mental disorder consequent to his 2004 accident. 17. Diagnosis DSM IV diagnostic criteria Axis I Alcohol dependence 303.90 Axis II Nil Axis III Epilepsy Axis IV Long term beneficiary due to epilepsy Axis V GAF=41-60 19 Relationship between the physical injury and/or event and the mental condition The only mental condition present is alcohol dependence and this problem predates the 2004 injury. . . . 21. Post-Traumatic Stress Disorder (PTSD) I do not consider this diagnosis to apply 22. What is the prognosis for the client's mental condition? His prognosis overall is not good given the coexisting problems of alcohol dependence and epilepsy and he looked to be in poor general health and in a self-neglected state. The Case for Mr Corkin [13] Mr Corkin provided a written submission stating: I claim justice was not done to me. I spent 2 months in hospital due to a driver without headlights on, lost my job, it took two weeks for my foot to go down then I got blood poisoning from the plates they put in, then they went to take the plates out and put different plates in I could not put shoes on for two years. My skin came off, spent ages in bed, my relationship went down, then the maggot I got on my foot/my foot still swells up and down. [14] At hearing, Mr Corkin spoke to his written statement and said his ankle and foot problems are well known to Dr Williams. [15] Mr Corkin commented he had only received the sum of $4,000 from the Corporation and he sought further compensation. Discussion and Analysis [16] The test I must consider under s 26 of the Accident Compensation Act 2001 (the Act) is whether Mr Corkin suffered a mental injury caused by his covered physical injuries. [17] Dr Vickers has provided a detailed and comprehensive report concluding that Mr Corkin's mental condition does not arise from his covered injuries. Dr Vickers also concluded Mr Corkin does not have any DSM IV personality disorders and the only mental condition he suffers is alcohol dependency. Whilst Mr Corkin suffers epilepsy seizures, this condition predates the 2004 covered injuries. [18] There is no other medical evidence before me which challenges Dr Vickers' report. Dr Vickers considered a number of reports provided by the Corporation, including various impairment assessment reports, and he interviewed Mr Corkin. Dr Vickers concluded Mr Corkin does not suffer a mental injury as a consequence of the covered ankle injury. [19] Ms Churstain submitted if Mr Corkin's incapacity from his ankle injury increased, then he is entitled to a reassessment of his impairment. Following the hearing, Ms Churstain undertook to provide an update on Mr Corkin's claim and her memorandum filed on 10 April 2017 records: 3.1 On 2 December 2016, an application for lump sum/independence allowance was lodged by Garry Wakefield on behalf of the appellant ... 3.2 A medical certificate was enclosed with the application from Dr Aidan Williams, General Practitioner, dated 14 November 2016. In that medical certificate, when answering the question "Is there a reason to believe the claimant's permanent impairment is likely to have increased since the last assessment, Dr Williams ticked "No"... 3.3 On 12 December 2016, the respondent wrote to the appellant advising that as his General Practitioner indicated his impairment had not changed since his last assessment, he is not eligible to have a reassessment of his impairment. .. . . . 4.1 Based on Dr Williams' medical certificate of 14 November 2016, the 12 December 2016 decision stands 4.2 While a claimant is not entitled to more than I reassessment in any 12- month period (pursuant to section 61(7) of the Accident Compensation Act 2001), should further medical certification be received by the respondent within that 12 month period that indicates that the claimant's impairment has increased since the last assessment, the respondent may reconsider whether the claimant is eligible for reassessment. [20] At hearing, the Court indicated to Mr Corkin that he should take a copy of this decision to his GP. Result [21] Based on Dr Vickers' comprehensive report, I conclude the Corporation's decision of 19 November 2014 is correct. Mr Corkin's mental condition does not arise as a result of the covered ankle injury, and his appeal must be dismissed. [22] Accordingly, the appeal is dismissed. [23] There is no issue as to costs. Denese I fferave Judge Denese Henare District Court Judge Solicitors: Ford Sumner, Wellington, for the respondent ACR 353-15 Corkin