Foster v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 142/2004 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal against a review decision under Section 154 of the Act BETWEEN CHARMAINE IRIS FOSTER of PAPAMOA Appellant (Appeal No. AI 326/01) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 7 May 2004 APPEARANCES/COUNSEL Mr N Ormsby for Appellant Mr D Tuiqereqere for Respondent RESERVED JUDGMENT OF JUDGE J D HOLE History [1] On 21 September 2000 the appellant was admitted to Tauranga Hospital due to the onset of severe headaches. A CT scan was undertaken and this established that there was no bleeding but there was significant communicating hydrocephalus (water on the brain). No cause for the hydrocephalus could be seen on the CT scan. It has also been established that the ventricles within the brain are enlarged. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/142-2004.doc acm 2 [2] In the course of investigating the appellant’s history, it was ascertained that she had been injured in an accident on 5 May 1987 when she was hit by a car whilst riding a bicycle. [3] As it was suggested that the appellant’s headaches as presenting in 2000 may have been the result of the 1987 accident, the Corporation decided on 23 November 2000 to provide cover for a head injury sustained in that accident. [4] The situation is further complicated as, when aged four, the appellant fell from a moving car and sustained head injuries. Whether these head injuries are the cause of the hydrocephalus, the headaches, or the enlarged ventricles cannot be ascertained with certainty. [5] On 13 December 2000 the Corporation advised the appellant that, on the basis of her medical records, general practitioner notes and an opinion given by Dr Loughlin, her application for weekly compensation had been declined. The Corporation considered that there was no evidence that the appellant’s ongoing headaches and hydrocephalus were caused by the head injury of 5 May 1987. This decision was reviewed and, in a decision dated 9 July 2001, the Corporation’s decision was upheld. Issue [6] The issue to be determined is whether there is a causal nexus between the 1987 accident and the symptoms experienced by the appellant in 2000. The Review Decision [7] In his decision, the Reviewer wrote: “In my view the evidence falls well short of establishing this nexus to the balance of probabilities. Dr Newburn apart, there is no other evidence of a causative link between Mrs Foster’s cycle accident and her current symptoms. The general practitioner notes record that her violent headaches predated the 1987 accident and do not record any head injury as having been sustained then – nor do subsequent consultations in July or August of that year. It is hard to reconcile Mrs Foster’s own – and in my view graphic – account of symptoms immediately following this incident and there being either no apparent mention or record of these to her general practitioner at the time. Dr Chancellor notes no particular features in Mrs Foster’s history to account for her headaches and says there is no relationship between the cycle accident and the hydrocephalus. He raises the possibility of there being a link between the amount of analgesic being taken and the chronic persistent headaches. Mr Allan could find no neuropsychological findings of note while Dr Shaw’s neuropsychological assessment and interview did not suggest 3 organic brain damage as a result of traumatic brain injury. Dr Loughlin’s view is that there is no evidence of there being a brain trauma consequent to the accident when Mrs Foster was knocked off her bike. Dr Newburn’s retrospective opinion, seeming to rely heavily on Mrs Foster’s own evidence, is the only evidence supporting Mrs Foster’s contention that her headaches originate from her accident – a testimony given to all the specialists consulted but who did draw a similar conclusion. I note with some interest a file note date 20 December 2000 by the Case Manager who recorded: ‘Charmaine phoned – says she has spoken to Dr Gil Newburn who thinks that her claim for compensation should be accepted. I advised that I did not have any reports etc from Dr Newburn, Charmaine advised that there are none as he has never treated her’. Mrs Foster was not to see Dr Newburn till 9 March 2001. I find that the overall evidence is convincingly against there being a causal connection [between] Mrs Foster’s symptomology and her accidental injury in May 1987. Accordingly the application for review must be dismissed”. [8] On the evidence before him, I think that the decision of the Reviewer cannot be criticised. Subsequent Medical Reports [9] Since then, further medical reports have been obtained. Dr Greg Finucane wrote a report dated 9 October 2002 in which he recorded that this was a complex case, and that he did not have all the information necessary to give a definitive opinion. He concluded: “It is entirely possible that most of the ongoing symptoms are a result of the effect of the emotional trauma sustained in the accident on her personality style”. [10] The clinical neuropsychologist, Dr Valerie McGinn, wrote a report dated 14 October 2002 and concluded: “It is difficult this many years later to parse out the comparative effects of the two significant brain injuries, both of which would be expected to have lasting effects. … I consider that a significant portion of Charmaine’s present difficulties would date from her preschool injury which was the more severe injury. … However, I consider that Charmaine’s now very significant attention and memory problems are unlikely to result from the early injury. Although they may have been areas of weakness, I consider that they would have been greatly magnified by the subsequent injury. Head injuries are cumulative even when there have been so many years between them. The effects of a second head injury are magnified by the existence of an early brain injury, even when a relatively good recovery has been achieved. Any areas of cognitive weakness would be expected to have been magnified by the injury 4 in 1987. The preschool injury would predispose Charmaine towards not achieving a full recovery from a subsequent injury”. [11] The clinical neuropsychologist, Dr John Smith, also wrote a report. He commented: “The Neuropsychometric Profile suggests a woman who functioned in the average ability range pre-accident who likely still functions in that range in terms of her general verbal logic, reasoning and vocabulary usage though now appears to present with a number of specific neuropsychological weaknesses: reduced verbal learning and memory, significant conversational/narrative recall weakness, moderate visual memory difficulty and very slowed information processing. The above findings on their own are common (and sometimes very long term) residuals of having suffered a significant concussion. In addition, the clinical history from 1987 to late 1990’s of periods of relatively good work function interspersed with periods of recovery from a build up of social/cognitive stress also describe the “boom-bust” phenomena seen in some persons with long term head injury effects; where coping requires much effort, compensatory strategies for cognitive and other difficulties and judicious social/family support but, even with that, persons can become overwhelmed by pressures of daily work/family demands. I see her husband’s head injury and subsequent increased dependence/altered support for her as putting increasing pressure on her and implicated as extra stressors and in the physical events of 2000/2001. Although stroke can leave cognitive deficits the functional effects here appear to have been largely transitory, and in any case the cognitive symptomatology of note in this case appear well established pre those events and date back to the 1987 index accident. As far as I can ascertain, her function pre 1987 appears relatively unimpaired. In my view, Mrs Foster’s neuropsychometric assessment and clinical history show a pattern of post-1987 symptoms and lifestyle events consistent with coping with residual effects of head injury accident”. [12] Finally, there is the critique on all the medical reports prepared by the psychiatrist, Dr Louise Armstrong, dated 1 May 2004. I do not intend to refer to this critique at length: suffice to say that it is the only critique of all the medical reports before the Court and has the effect of putting them in some sort of perspective. Opinion [13] The medical reports indicate a divergence of opinions as to whether there is a causal nexus between the 1987 accident and the symptoms presenting in 2000. Those symptoms include: the headaches, memory impairment, mood lability, reduced frustration tolerance, impaired impulse control, social withdrawal, communication issues, episodes of major depressive disorder, increased sensation of cold, reduced attention span, reduced divided attention, reduced alternating 5 attention, slowed information processing, the reaching of cognitive overload more readily, reduced libido, balance impairment, ready fatiguability, and increased anxiety when there are increased demands on her with a consequential reduction in cognitive acuity. [14] In my opinion, the appellant has not managed, on the balance of probabilities, to establish the requisite causal nexus between injuries sustained in the 1987 accident and the mental conditions described in the preceding paragraph. [15] Insofar as the hydrocephalus is concerned, none of the evidence supports such a causal nexus. [16] The general practitioner’s notes of 1986 indicate that the appellant was suffering from violent headaches prior to the 1987 accident. It is significant that the headaches were described by the general practitioner as “violent” as this indicates that they were somewhat more severe than the headaches normally experienced by most people. There is no documentation which suggests that the headaches were worse after the 1987 accident than before. [17] As to the other complaints (but including the headaches) a number of additional points are relevant: (a) There is no physical evidence that the appellant sustained a brain injury of any sort at the time of the 1987 accident. However, there is evidence that she sustained other injuries from the accident. The first suggestion of a head injury only came about in 2000. Those specialists whose opinions favour the appellant’s case seem to have concluded that there was a brain injury (presumably concussion) from their consideration of the symptoms which existed some 15 years later. In short, they say that as there were the symptoms of a brain injury in 2000, these must relate to the accident of 1987. Whilst I suppose that this may be one way of establishing a causal nexus, it is difficult to be confident about it without the physical evidence of there having been a brain injury in 1987. In any event, this attempt at establishing a causative link is contrary to such authorities as Gazzard v ACC (313/01) where Judge Beattie referred to “a causative pathology” or a “direct causal nexus” from “an identifiable injury tracking through to the present day”. 6 (b) The same specialists rely heavily on the history given to them by the appellant. Dr Smith, for example, commented that he had done this and that he had found no inconsistencies or untruths in it. Regrettably, there are some inconsistencies in the reported histories. Several specialists reported that the appellant attributed the headaches to the 1987 accident. She may be right. However, she omitted to tell the same specialists that she had experienced the violent headaches before the accident. In a case like this, where a specialist has relied on a history given by the appellant without verification from clinical notes, any opinion based on such a history must be treated with caution. (c) The additional symptoms identified by Dr Newburn (referred to in paragraph 12) do not date from the 1987 accident. Indeed, it seems that since that accident the appellant was a useful member of the workforce and brought up a family. It was only when her husband was assaulted and became severely incapacitated in 2000 that the additional symptoms became apparent. With respect, this was not really a “boom or bust” situation as suggested by Dr Smith. Rather, there seems to have been a significant absence of symptoms between 1987 and 2000: a sudden surge of symptoms following the very significant change in the family’s circumstances arising out of the husband’s tragic assault. (d) Finally, there is Dr Armstrong’s critique. It is a very compelling document and effectively casts doubt upon the relationship of the current complaints and the accident of 1987. It does more than this: at the foot of page 8 of her report she sets out another likely explanation for the symptoms. She does not pretend that it is the explanation for the complaints; rather that it is possible that this is so. She writes: “Psychological factors This is difficult to elucidate, partly because of the differing information. Dr Finucane obtained a history consistent with acute stress disorder, resulting from the accident, going on to a degree of post traumatic stress disorder. These conditions may account for symptoms and difficulty coping in the early stages post- injury. He also refers to ‘the emotional disorder which has been in evidence since the 1987 traumatic brain injury’. It is my reading of the case that Dr Finucane considers there are psychological but not brain injury sequelae. … All reports refer to the significant stress following the assault on her husband, and his injuries. There seems to be little regard to the possibility that the domestic, social and financial consequences of this in a person with a migraine diathesis and anxiety about the discovery of an unexplained brain condition (hydrocephalus) in 7 addition to the normal aging process might be a sufficient explanation for her difficulties”. Conclusion [18] In order to be entitled to cover, the appellant is required, on the balance of probabilities, to establish a causal nexus between an injury arising out of the 1987 accident and the mental conditions presenting in 2000. For the reasons which I have indicated, she is unable to do so. Furthermore, Dr Armstrong has suggested another quite plausible explanation for the appellant’s problems. Accordingly, in the absence of more compelling evidence supporting the appellant’s contention, the appeal must be dismissed. Dated at Auckland this 20th day of May 2004 at 11.00 a.m./p.m. J D Hole District Court Judge