O'Regan v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 96 ACR 278/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL AGAINST A REVIEW DECISION UNDER SECTION 149 OF THE ACT BETWEEN BRYON O'REGAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 March 2015 Appearances: C Hollingsworth for the appellant I Revuecamp for the Corporation Judgment: 21 April 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN 1] This appeal has a relatively narrow focus and involves an interpretation of how the provisions of s 38 of the Accident Compensation Act ("the Act") apply in the context of the largely undisputed factual background to this case. [2] The issue is what is the date on which the appellant suffered a treatment injury namely radiation enteritis. The appellant believes it should be 24 April 1979 shortly after he received adjuvant radiotherapy for testicular teratoma. The respondent asserts it should be nearly two years later namely 20 April 1981. The specific provisions of s 38 that are relevant are: 38(i) The date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury. (ii) Subsection (1) applies even if it was not known at the time the treatment was first sought or received for the symptoms, that previous treatment was the cause of the symptoms. [3] The section appears to be seeking to cover a situation where someone presents with symptoms where it had not necessarily been recognised at that time that a particular treatment is the cause of the symptoms either because of a misdiagnosis or insufficient information or the like. [4] To get to the present point the parties have been through a number of processes including a successful application by the appellant for review of an initial decision by the respondent not to provide cover followed then by an unsuccessful challenge by the appellant at a second review to a decision by the respondent as to the effective date under s 38. Factual Background [5] The appellant developed a teratoma of the right testis which was treated by a surgical resection and adjuvant radiotherapy in 1979 at Palmerston North Hospital. He received 4500 cGY (radiation measurement) using cobalt 60 units to his paraortic and right pelvis regions using what was described as a dog-leg field. [6] This treatment commenced on 24 April 1979 and was completed approximately a month later on 28 May 1979. He did not tolerate the treatment well due to nausea and episodes of diarrhoea from 30 April. [7] By 7 May 1979 his condition appeared to be, according to the doctor's notes "much more comfortable and free of diarrhoea and nausea this week". He still continued to suffer from nausea but by June 1979 had "become well and symptom free". This condition was similarly noted in the following years December 1979, April 1980, September 1980 and January 1981. [8] On 24 April 1981 he was admitted to Palmerston North Hospital with abdominal pain and profuse diarrhoea. A provisional diagnosis of gastroenteritis was made and he was treated with IV fluids. He recovered and was discharged three days later. [9] Nearly 16 years later, in 1997, up until when, which period it seems, based on reports from amongst others Dr Ruttenberg, there were considerable but unclarified periods in which he was "fit well and would probably have been able to work "(Ruttenberg 13 December 2010 and confirmed 7 April 2011 and 22 August 2012), he presented to Auckland Gastro Enterology Department with a six month history of diarrhoea and since then has undergone a number of investigations for gastric symptoms. [10] His general practitioner Dr Trotman lodged a treatment injury claim on his behalf on 28 July 2008 claiming an injury of "radiation bowel injury". [11] There is no need to traverse the interim steps from then until a hearing after the claim had been declined. Suffice to say that there appears to be no dispute that, as it was put by Alan Fraser Gastroenterologist on 10 February 2011, in a letter to a case manager at the respondent "Mr O'Regan's life has been significantly altered by the radiotherapy he received in 1979" [12] At the hearing on 19 October 2010 the reviewer quashed the ACC decision and substituted it with a decision that he had cover for radiation enteritis but no injury date as such was included in the decision. [13] 18 November 2010, Shelley Steele a Clinical Advisor of the respondent wrote to him confirming that review decision and that he had cover for radiation enteritis. She said "we have now received the reviewers decision and have approved cover for the following injury which happened on 30/4/1981 (please note that is the date the clinical evidence shows you first sought treatment for this injury) - Radiation Enteritis". [14] A late application for review was accepted and a report dated 28 March 2013 obtained for that review hearing from Dr Chris Moughan, medical adviser to the Treatment Injury Centre who stated "given no apparent presentation with GI symptoms in the years following it is difficult to say whether or not the episode involves several days at Palmerston North Hospital "of 1981 represented gastroenteritis or an episode of radiation enteritis. Certainly there appear symptoms attributed to radiation enteritis from about 1997. However the early symptoms at the time of radiotherapy in 1979 can be attributed to acute effects of the radiation and not to the chronic radiation enteritis as the covered injury". A decision from the review hearing issued on 29 April dismissing the application concluded "the symptoms experienced by Mr O'Regan (diarrhoea and nausea) during or shortly after the completion of the course of therapy in 1979 are considered acute side effects of radiotherapy and not chronic radiation enteritis i.e. the covered injury". There was consensus in the medical opinion that this is what Mr O'Regan was diagnosed with when the ACC provided cover as at 24 April 1981. [15] That second decision was also taken on review on the same point as is at issue in this appeal namely whether the date of treatment injury was 24 April 1979 as asserted by the appellant or 30 April 1981 as asserted by the respondent. The reviewer preferred the interpretation of the respondent premised on the basis that the symptoms of diarrhoea and nausea experienced by the appellant in 1979 were considered as normal outcomes of acute radiation enteritis which the reviewer concluded was not the covered injury. The respondent's view which the reviewer accepted was that the covered injury was chronic radiation enteritis. [16] The focus in this appeal is not on whether or not the appellant is suffering from the effects of radiation but whether the symptoms displayed by the appellant when he was at Palmerston North Hospital in April 1979 and May 1979 with symptoms of nausea and diarrhoea are within the range of symptoms normally applying in the acute radiation enteritis area or whether the symptoms later strongly emerging of the same type which it is now broadly agreed are symptomatic of chronic or late ongoing radiation enteritis can be inextricably linked back to 1979. The Court has the benefit which neither review had of updated assessments by Dr Alan Grey dated 25 August 2014 and Professor Graham Stevens dated 11 November 2014. [17] Much of what had gone before can at this stage be set aside and the focus shift to those two latest reports in the context of all that had gone on before. [18] One of the points which the appellant has made is that by its own words the respondent seems to have nailed its colours to a covered injury of "radiation enteritis" generally and not as it now asserts "chronic radiation enteritis". [19] The distinction is relevant because there is a consensus of medical evidence now that chronic radiation enteritis whilst necessarily preceded by acute radiation enteritis is a different condition and there needs to be a differentiation between them. Both can present with the same symptoms but acute radiation enteritis is in the respondent's view, supported by Dr Grey, normal and to be expected, but chronic radiation enteritis is relatively uncommon. [20] In summary the differences largely agreed upon by Dr Grey and Professor Stevens are as follows: Acute radiation enteritis is experienced by almost all patients undergoing radiation of the type involved here. This typically will arise during the first course of treatment up to within eight weeks or so of completion and symptoms include nausea, vomiting, abdominal cramping, tenesmus, fatigue and diarrhoea. Both opposing viewpoints agree that the symptoms that the appellant complained of fit within this description. Usually symptoms subside after completion of radiation treatment normally within a few weeks although beyond eight weeks is abnormal. Chronic or late or delayed radiation enteritis is different. There is broad medical agreement that only a small proportion of patients who receive large volume abdominal or pelvic radiation will develop chronic radiation enteritis. It has much the same symptoms as acute radiation enteritis but can include in severe cases bowel obstruction, fistulas, bowel perforation and massive rectal bleeding. Usually the symptoms start 6 to 18 months after radiation therapy is completed but one of the major distinctions between chronic radiation enteritis and the acute form is a permanent reduction of epithelial cells. There is no clear cut causative relationship between acute and chronic toxicity. [21] Dr Grey is of the view that the starting point for symptomatic chronic radiation enteritis was around 3 April 1981 resulting in hospital admission on 24 April 1981. He saw the interval between treatment and the symptoms as about 22 months which is consistent with most cases. [22] Professor Stevens has a contrary view with the starting point (which the respondent and Dr Grey dismiss as "semantics" that while the respondent took the view following the first review decision that although the expression "radiation enteritis" had been used in fact what was meant was "chronic radiation enteritis" should make no difference as both fit within the original claim of radiation bowel injury. [23] The appeal should be allowed because it is clear that the application was and remains for radiation enteritis and the narrowing down of that which seems to have first started in the letter from ACC referred to above differentiating between acute radiation enteritis and chronic radiation enteritis has introduced an artificial aspect. The injury covered was always radiation enteritis whether acute, chronic or otherwise. [24] There is now available ample larger consensual evidence to show that when the appellant was admitted to Palmerston North hospital on 24 April 1979 with symptoms described as "nauseated...." With "a history of some months of swelling in the right testis not responding to multiple antibiotics. Patient to be planned for infradiaphragmatic post op radiation in the usual way.", those were all symptoms of radiation bowel injury. [25] I am persuaded by the latest information from Dr Stevens that there is a continuum and likely probable connection between what happened back in 1979 despite apparent remission and no problems for a while and then reappearance into a chronic or long lasting form of the original radiation enteritis.] [26] In other words looking back with the benefit of hindsight and based on a near unanimous view that the appellant has suffered from and displaying symptoms of radiation enteritis (whether called acute or chronic or late) from the earlier date of 24/4/79, matters not as the claim always was "radiation bowel injury". [27] The Appeal is allowed. There should be costs which I will leave to the parties to resolve and only refer back to the Court if required Judge A N MacLean District Court Judge ACR 278-13-O'Regan.doc(aw)