Portland v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 197 197 HELD AT TE AWAMUTU IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to. Section 91 of the Act BETWEEN BRIAN PORTLAND Appellant (Appeal No. DCA 175/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 2nd day of September 1997 APPEARANCES Fiona Taylor for appellant A D Barnett for respondent DECISION OF JUDGE D A ONGLEY The appellant was injured in a railway accident in 1973 following which he had both legs amputated. That was before the availability of accident compensation cover. The appellant suffered a further accident on 15 August 1994, and the question in this appeal concerns whether the appellant suffers incapacity and disability attributable to the 1994 accident. The 1994 accident was in itself a comparatively minor one but the appellant had managed extremely well until he suffered that accident. An operation in October 1994 left the appellant with a sensitive and painful right stump which has restricted his agility and caused him a good deal more pain than he suffered before. The Corporation considered that the appellant's old injury was deteriorating and had reached a stage where the operation was required because of the deteriorated condition of the stump, and not because of the accident in August 1994. - 2. The appellant's own description of the 1994 accident is found in the evidence which he gave to a Review Officer on 18 September 1996. He said the accident happened when he was getting in through the back of his car and he scraped across the boot hook of his vehicle. He said he sheared the top of his stump. He said he did not just knock it but actually sheared the top of it and opened it right up. He said the wound led to hospitalisation and to the bone being shortened by about two inches. Since his 1973 injury and amputations, the appellant had led a remarkably agile life, as he described to the Review Officer. For years he had worked as a broadcaster in a building where he had to go up and down three flights of stairs. He manoeuvred by bouncing in or out of his chair and from one place to another. He was able to ascend stairs by bouncing and dragging his chair after him. He had engaged in gymnastics, sailing, boating, swimming, skiing and weightlifting including gaining a Commonwealth record and winning medals at Commonwealth Games. He had travelled overseas whilst disabled. Without doubt he had been a highly motivated energetic person who had been extraordinarily active with his disability. The material on the Corporation's file indicates that the appellant may well have required surgery at some stage to shorten his right stump and remove a neuroma and affected tissue. The appellant places a good deal of emphasis on the fact that he was able to remain very active until the accident in August 1994, and that there is no clear evidence that he would have continued to remain active if he had not sheared the skin from the end of his stump. One of the earlier reports is dated 21 July 1981 from Mr D E Allen, orthopaedic surgeon. He considered the appellant's need to have something done to overcome tenderness and very thin skin of his right stump. He had discussed with the appellant the pros and cons of retaining a fragment of proximal femur, and the appellant's attitude was that the bone provided him with very valuable stability when sitting so that he would like to retain it if at all possible. Mr Allen said that the question then became whether the plastic surgeons could provide appropriate skin flap or not. He proposed to discuss appropriate measures to revise the right stump, but it does not seem that any such surgery took place. That record provides valuable background but it is neutral so far as the present questions concerned. It is relied upon by the Corporation as indicating that the appellant's condition was unstable even in 1981 and that surgery to the right stump was contemplated. The appellant says that whatever surgery might have been contemplated, turned out not to be required in the fullness of time because he was able to use the stump robustly for a further 13 years until suffering an accident. In a letter of 7 May 1985 Mr D A Hay, senior surgeon at Taumarunui Hospital, recorded that for years the appellant had a sensitive and painful neuroma probably of the femoral nerve and possibly also part of the sciatic nerve, and that he experienced considerable spasms. In November 1984 he suffered an accident when he slipped in the bath, injuring scar tissue adjacent to the stump of the bone on the right and he developed an ulcer which put him off work for over a month. Mr Hay said that the new accident was not directly connected with the neuroma problems and he inquired whether the Corporation would provide assistance. - 3. When the appellant made his present claim on 18 August 1994 the Corporation did not institute a full medical inquiry. Benefits were granted to the appellant until March 1996 when the Corporation began to consider the question whether the appellant was entitled to any benefits at all consequent on his 1994 accident. The Corporation obtained the operating notes from Health Waikato. They include notes from Dr M F Klaassen, plastic and reconstructive surgeon, and Dr M L Wong, rheumatology and rehabilitation consultant. Mr Klaassen's operation note was as follows: "OPERATION: Excision of pressure area right trochanteric region. Excision of femoral nerve neuroma and reconstruction with rotation myocutaneous buttock flap INDICATIONS: Painful neuroma right groin in proximal femoral region following traumatic amputation 20 years ago in a train accident and also the pressure bearing area over the right trochanteric region was very thin and scarred and more durable cover was required. PROCEDURE: With the patient anaesthetized under GA and placed in the left lateral decubitus position the scarred area was excised and I managed to find some femoral nerve neuromata on the under side of the proximal femoral stump. These were excised, diathermied and the ends buried under muscle and soft tissue. A large rotation gluteus maximus myocutaneous flap was the raised on the gluteal vessels and rotated forward to provide better soft tissue cover over the proximal femoral stump. Wound closure in three layers with Vicryl, PDS and skin staples and a padded dressed was applied." The surgeon noted that the pressure bearing area over the right trochanteric region was very thin and scarred. There is no note of the recent injury in August 1994. Dr Wong's letter of 14 March 1995 stated that the appellant had been originally admitted with cellulitis of the stump on the right side, and that after treatment with intravenous antibiotics Mr Klaassen had proceeded to an excision of the sinus. That material did not cast any light on the question of precipitation of problems by the 1994 accident. On 20 February 1996 the case manager wrote to Dr B P Rauber who was then the appellant's general practitioner. The case manager had no record of the original accident. A question that was of course explained by the fact that it occurred before the commencement of the Accident Compensation Act 1972. His inquiry to Dr Rauber therefore addressed the question of how the appellant had initially undergone a double amputation and whether there had been any accident compensation cover. He asked whether the August 1994 would have caused the appellant any further permanent disabilities and whether there were any underlying conditions. It is important to refer to the nature of the questions in order to put in context Dr Rauber's reply. Dr Rauber on 23 February 1996 wrote that the 1994 accident resulted in the appellant having surgery to a pressure sore and excision of a femoral nerve neuroma and reconstruction with a myocutaneous buttock flap. He said that he did not feel that the contusion of the right stump would cause him any further permanent disabilities in his already wheelchair-bound condition, and that his present condition would be considered totally related to his original accident which had led to bilateral - 5- further area on the tip of the sump broke down leading to a cellulitis thus necessitating his readmission to hospital. I am certain that this area of tissue breakdown can be attributed to the injury in August 1994 or not. It does however appear that the bed rest in hospital consequent on the surgery led to him being deconditioned and being thus less able to care for himself. Thus in summary I would have to say that the primary cause of Mr Portland's current disability is his original train accident in about 1973, that there was an accident in August 1994 also appears to be beyond doubt. It also appears that events following this accident requiring hospitalisation did lead to a definite deterioration in Mr Portland's overall condition. The main point of contention would seem to be to what degree the accident of 1994 directly led to subsequent events. I find this somewhat difficult to answer definitely referring to the notes." Those comments refer to the difficulty which faced the Review Officer and which faces the Court. The general practitioner notes do not tend to support the appellant's description of his accident, but it is third hand evidence and Dr Carmichael may have been more concerned with noting the ulcer and neuroma than the immediate injury from the accident. At least Dr O'Sullivan considered that there was evidence of a specific accident, and that it exacerbated the appellant's symptoms. The solicitors also obtained a report which had been written by Mr R J Kyd, orthopaedic surgeon, on 20 June 1995. Mr Kyd noted that as time went on, even prior to the 1994 accident, the appellant had experienced increasing difficulty with pain to his amputation stumps being traumatised on the stairway at his work. Mr Kyd said that as the months went by the pain and tenderness of the stump deteriorated, and unfortunately in August 1994 he "sheared the soft tissue from the end of the amputation stump on the right while hauling himself into his car". Mr Kyd had not observed the tissue injury and must have obtained that information direct from the appellant. He noted that the injury required revision of the stump and a prolonged period of rehabilitation from hospital, and resulted in further restriction to the level of the appellant's activity. He was then unable to sit for prolonged periods of time and was not able to negotiate the stairs, so he had ceased working. Mr Kyd said that the ongoing pain restricting his level of activity made it unlikely that he would be capable of resuming his previous job as a broadcaster. That report also pointed to a deterioration of the appellant's right stump before August 1994, and it indicated that the integrity of the skin was breaking down with the added complication of pain from the neuroma. A further letter dated 9 July 1996 was received from Dr Rauber. In that letter Dr Rauber expressed concern about the lack of assistance being provided by the Corporation. He stated that the appellant sheared the end of his stump while getting into the car, and developed an ongoing non-healing wound and also a neuroma which both subsequently developed in severe ongoing pain. The general medical evidence is that the neuroma was not a result of the accident. The non-healing wound was the result of the accident, but the question still remained whether the surgery was required because of the neuroma and breakdown of the tissue, or whether it was required by virtue of the wound. Mr Kyd and Dr Rauber spoke of the shearing injury but neither of them had ever observed it. So far as is known, the only medical professional who - 6- had observed it before the appellant was referred for surgical assessment was his general practitioner, Dr Carmichael. There is no evidence from Dr Carmichael apart from his note, and there is rather a mystifying difference in degree of severity between the appellant's own account of the injury and the pre-surgical notes. The Corporation wrote to Mr Kyd in September 1996 with some questions including the question of degree to which incapacity had resulted from the accident in August 1994. The reply from Mr Kyd dated 15 October 1996 does not advance the matter further. He said that until his accident in 1994 the appellant had worked for TVNZ but had since been unable to continue because of inability to access his workplace. He said that following the injury in 1994 the resulting deterioration in his disability has altered his level of activity to the point where his independence is being threatened. The fact that an immediate deterioration followed the accident is not in issue. Counsel for the Corporation submitted that it was only part of a chain of events leading to surgery modifying the stump, and that the disability results from the surgery. The respondent's view is that the surgery would have been necessary anyway and that the accident was only one of a chain of events, not an actual contributing cause. That is the essence of the problem. There are various possibilities, including the possibility that the immediate accident injury in 1994 might have healed, leaving an underlying problem which still required surgery. There is then the possibility that the condition of the stump prevented the injury from healing, but that the injury was only incidental and was not in itself a contributing cause. There is then the possibility that the appellant, whilst being prone to injury, could have carried on with the use of his stump for a rather indefinite period of time, but that once he was injured he was compelled to undergo surgery and remove part of the bone, rendering it less useful and markedly increasing his disability. The case is something like Ngaruhe 83/95 which is an illustration of the fact that incapacity, by reason of only a contributing cause, is nevertheless compensatable under the Act. There are questions of degree in measuring the real contribution of the accidental cause to the appellant's impairment and his consequent incapacity measured under s 37A of the Act. It may be said that this is a case where the decision is finely balanced. Ms Taylor has submitted that the 1994 injury was severe enough to prompt a referral to the plastic surgery department, and she has submitted that if the surgery had been necessary prior to August 1994 as the respondent suggests, then it would surely have taken place some time during the 20 years since the original amputations. Surgery became a requirement, rather than an option, following the August 1994 accident. Pain levels substantially increased, from tolerable pre-accident, to excruciating post-accident. Clearly some action had to be taken in an attempt to relieve pain levels, at least to those suffered pre-August 1994. Therefore, it is submitted that the surgery and resulting incapacity was a direct result of the accident and cover should be given. Mr Barnett concedes that with the temporal association between the accident and the subsequent further loss of capacity, there is arguably a causal association. However, he submits that a close consideration of the evidence suggests that the underlying cause of the appellant's incapacity was the double amputation resulting from the accident in 1973, and the immediate cause of deterioration and incapacity after - 7- August 1994 was the surgery which remedied long standing problems merely highlighted by the accident. In my view, it cannot be said that the Review Officer's decision was wrong. The Review Officer correctly assessed the medical material. He had listened to the appellant's own description when giving evidence, and, although he did not make any observations about credibility, he was in a position to measure the effect of the accident on the appellant as the appellant explained it, and to weigh the medical evidence. There is one area that causes concern. The review hearing took place on 18 September 1996. The decision was not given until 28 May 1997. The Review Officer had indicated at the hearing that he would make a further medical inquiry, and he obtained the second letter from Mr Kyd before making his decision. He referred that to counsel for the appellant and obtained comments. On 16 December 1996 the Review Officer recorded a telephone discussion with a member of the Corporation's staff who, according to the note, informed him that her impression was that the appellant's claim was "a bit of a put-up job". She was to discuss the information with the Fraud Squad. The Review Officer undertook to ensure that no decision was issued in the meantime and he was informed on 23 January 1997 that the investigation was still proceeding. It was also during this time that the Review Officer received Mr Kyd's earlier opinion of 20 June 1995, Dr O'Sullivan's letter of 12 April 1996, and Dr Rauber's letter of 9 July 1996. He then wrote further to Mr Klaassen for the hospital notes, and to Dr Carmichael for his note of examination of the injury. There is also a note from Dr Mark Macdonald, regional medical adviser, who said that the notes indicated that Dr Carmichael referred the case to the plastic surgeon because of a number of problems related to Mr Portland's general condition, and that they were not the direct consequence of the specific accident. In those circumstances Dr Macdonald considered that the Corporation did not have responsibility to cover the injury. Once again the material was referred to the appellant's solicitors for comment It may be that the comment about possible fraud did not influence the Review Officer at all. It does not seem to have been part of the material referred back to the appellant's solicitor. If it had been there would almost surely have been some response. As it appears to be a potentially prejudicial comment that may have affected the outcome of the review, the matter should be looked at again on appeal, despite the Review Officer's opportunity to evaluate the oral evidence which he had heard. Having said that, I am nevertheless driven to the same conclusion as the Review Officer reached on the balance of the evidence. There is no medical opinion anywhere to the effect that the appellant may have continued with his level of activity before August 1994 if it had not been for the accident. There is no medical opinion that he may have been able to continue functioning at that level for months or years until breakdown of the tissue through wear, or trauma, or accident occurred. Dr Carmichael and Mr Klaassen did not appear to address the accident wound as being of any significance. The whole of the medical material indicates that it was simply part of a chain of events but did not on its own cause any injury requiring the surgery to be done. In weighing the evidence it is necessary to give proper weight to - 8 - the appellant's own evidence before the Review Officer as credible evidence that was not rejected. Any suggestion of fraud needs to be put aside because it is clear that there was an accident in August 1994, and it is also clear that the appellant has suffered a marked impairment since that time. There is no indication that he has presented his claim fraudulently. Taking those matters into account, I reach the conclusion that the Corporation was correct in its decision that the appellant's incapacity and his needs for assistance by March 1996 at least were consequences of his original injury; and were not covered under the Accident Rehabilitation and Compensation Insurance Act 1992. No decision is called for regarding the payments that were made to the appellant, or assistance provided before March 1996. For those reasons the appeal is dismissed. DATED at WELLINGTON this 23 day of September 1997 D A Ongley District Court Judge