Knox v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 197 /2009 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CHERIE KNOX Appellant (Al No.26/09) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 21 September 2009. APPEARANCES Ms C Knox appeared in person. Ms L Scott for the respondent. RESERVED DECISION OF JUDGE J CADENHEAD THE ISSUE [1] . At issue is ACC's decision to decline to fund dental treatment on the basis that treatment to teeth 32, 31, 41 and 42 was not the result of personal injury for which the appellant had cover. BACKGROUND OF FACTS [2] I have substantially set out the background of facts provided by the respondent as on a careful reading of the file they seem accurate and reliable. [3] Mrs Knox was granted cover in December 2007 for damage to tooth 12, which she sustained in an epileptic fit on 24 November 2007. ACC accepted a claim for treatment in respect of T12, and contributed to the cost of a new crown for that tooth. I:\JUDICIAL\CADENHJ\Accident Compensation\Knox C 26.09.doc [4] In March 2008 ACC approved further work on the same tooth. [5] On 5 March 2008 ACC received a further request for prior approval for dental treatment in respect of teeth 32, 31, 42 and 41. The dentist completing the claim form stated: "Patient claims because of her epileptic medication that her crown anteriors have deteriorated over the years consequently these teeth are unsightly." [6] On 1 May 2008 Dr Jonathan Leichter, Senior Lecturer in the Department of Oral Sciences at the University of Otago, provided comment to ACC. After reviewing Mrs Knox's records and viewing the radiography, he stated: "Based on the information provided, there is NO evidence to suggest that the current status of teeth 32-42 or their current treatment needs is wholly or substantially as a result of a personal injury. There is NO evidence that the history of medication for epilepsy has in any way led to the "deterioration" of the teeth. There is NO scientific evidence that supports the suggestion that epilepsy medications have any effect on the teeth whatsoever. There is also NO evidence that her epileptic "episodes" resulted in any damage to the lower anterior teeth. The current status of this claimant's teeth is wholly as a result of attrition, tooth wear and possibly dental caries. There is evidence that the claimant may have bruxism or some para-functional habits. The status of these teeth is NOT as a result of an accident. Even if there had been damage from an accident, crowns for these lower anterior teeth would not be either necessary or appropriate. The provider acknowledges that he does not believe that the treatment requested would satisfy the criteria for appropriateness and necessity, but only submitted the request at the insistence of the claimant.' [7] On 7 May 2008 ACC issued a decision declining the claim. [8] Mrs Knox filed an application for review on 24 June 2008 and the matter proceeded to hearing on 13 October 2008. Mrs Knox did not attend the hearing as she had misread the date on the hearing notice. The reviewer therefore gave Mrs Knox an opportunity to consider and reply to ACC's submissions. She requested a further hearing date, and produced a new report from her neurologist, Dr Stuart Mossman. [9] In his report dated 10 October 2008, Dr Mossman stated: "I care for Cherie Knox who has epilepsy with grand mal seizures. | understand she is going to an ACC tribunal for a review of the question of dental damage as a consequence of secondary trauma to her teeth, y had upper and lower crowns which she tells me are as a consequence of previous teeth damage. The patient cannot actually remember if she has developed a painful tooth as a consequence of a seizure but has bitten the lateral side of her tongue of sufficient 2 discomfort that she has not been able to eat for a fortnight depending on the intensity of the injury. She is aware of having had a seizure usually at night when she wakes with a morning headache. She does not admit to any facial bruising or limb fractures as a consequence of seizures. It is recognised that patients with epilepsy however can do significant damage to themselves, including having spinal fractures and dislocation of shoulders, in addition to facial injuries. My clinical experience is however that it is I think uncommon for patients to fracture their teeth as a consequence of seizure, although this may happen if someone puts an article in the patient's mouth. I would recommend that the ACC consider a physical opinion from an expert dentist that is presumably the dentist who has treated her in the past, as to whether there was a direct relationship of trauma for the need of the crowns that she has. There is correspondence in the patient's notes for which a lot of relevant information at least in terms of the address and author is blacked out. This seems to relate to an opinion given without seeing the patient. In general, in medicine this is a risky procedure to give a categorical opinion without actually making an individual assessment. In summary, unless the ACC has a blanket policy that they do not cover secondary tooth damage as a consequence of epilepsy, then I would recommend as above that the patient is given the benefit of an actual opinion by her attendant dentist and/or actually see an independent dentist. If you want me to review the actual incidence of tooth damage in grand mal seizures then you would need to write to me independently to ask for that information." [10] The reviewer notes in his decision that on 29 November 2008 he had a phone conversation with Mrs Knox in which he advised that his jurisdiction was limited to the consequences of the specific accident event occurring on 24 November 2007. He noted that the treatment providers had mentioned two other possible causes for her dental condition, namely a treatment injury from anti-epileptic medication or a longstanding gradual process (presumably treatment injury) [11] Mrs Knox was given the opportunity to provide further evidence and final submissions. She did so by providing brief comment from her dentist's nurse, dated 26 November 2008, and comment from a person who was in the vehicle with Mrs Knox on 24 November 2007 (the covered event). [12] The reviewer finally issued his decision on 18 December 2008. His conclusions were as follows: "Mrs Knox's claim is for a specific accident event occurring on 24 November 2007. There appears to be no dispute over the treatment provided for the injury sustained in that accident. The dispute has arisen due to the subsequent request for treatment from Dr Szeto. In his first request Dr Szeto identifies a different causative factor. He relays Mrs Knox's view that epileptic medication led to the deterioration of her teeth. However, Dr Szeto indicates that he is not sure that this treatment is to treat an injury for which Mrs Knox has cover. ACC has a role to investigate claims and has sought an independent medical adviser's opinion. I agree with Mrs Knox that this adviser has not seen her and I do not consider it good practice to blank out the name of the adviser. I have therefore given no weight to this opinion. That issue aside, there is no evidence before this reviewer to support the claim that medication is the cause of deterioration in Mrs Knox's teeth. Furthermore there is no evidence the epileptic episode of 24 November 2007 resulted in damage to Mrs Knox's lower anterior teeth. I dismiss Mrs Knox's application for review as the evidence does not establish that Dr Szeto's further requests for Mrs Knox's treatment are related to a covered personal injury arising from an accident." LEGAL PROVISIONS [13] Section 20 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (IPRC Act) provides: 20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts for work-related mental injury]) (1) A person has cover for a personal injury if- (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to-- (a) personal injury caused by an accident to the person: (b) personal injury that is treatment injury suffered by the person: (c) treatment injury in circumstances described in section 32(7): (d) personal injury that is a consequence of treatment given o the person for another personal injury for which the person has cover (e) personal injury caused by a work-related gradual process, disease, or infection suffered by the person: () personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person: (g) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover: (h) personal injury caused by a gradual process, disease, or infection consequential on treatment given to the person for personal injury for which the person has cover; (i) personal injury y that is a cardio-vascular cerebrovascular episode that is treatment injury suffered by the person: personal injury that is a cardio-vascular or cerebro- vascular episode that is personal injury suffered by the person to which section 28(3) applies. '3) Subsections (1) and (2) are subject to the following qualifications. (a) section 23 denies cover to some persons otherwise potentially within the scope of subsection (1): (b) section 24 denies cover to some persons otherwise potentially within the scope of subsections (1) and (2)(e]. (4) A person who suffers personal injury that is mental injury in circumstances described in section 21 has cover under section 21, but not under this section." DISCUSSION AND DECISION [14] The appellant has cover for a specific event that occurred on 24 November 2007 and for which the respondent has accepted damage to tooth 12 as a result of that event. [15] The work for which Mrs Knox has subsequently requested funding relates to completely different teeth, and there has been no plausible explanation to link the need for such treatment to damage sustained in the event of 24 November 2007. The damage to the teeth has been explained by reference to deterioration and decay, rather than to trauma or some other outcome of that event. [16] While there has been a suggestion that the appellant's epilepsy medication may have something to do with the deterioration in her teeth, there has not been a claim lodged in respect of treatment injury. Further, the medical evidence in this regard is at best speculative (Mossman) or non-supportive of that claim (Leichter). Further, the appellant's treating specialist, Dr Szeto was not prepared to draw a link between the need for treatment and a covered injury. 5 [17] The jurisdiction of this Court is limited to considering whether the need for treatment has arisen as a result of the 24 November 2007 accident. There is simply no evidence on file to support this allegation. If the claimant wishes to have the respondent consider the question of treatment injury more thoroughly, then she should take steps to lodge a treatment injury claim. [18] The appellant did not really call any evidence is support of her claim arising from her accident on 24 November 2007. In respect to the other teeth the appellant should lodge a claim that would then be considered in the ordinary way and it would be necessary to consider and assess in detail the medical evidence given. I make no comment on whether I would consider that any other claim would be successful. [19] The appeal is dismissed. There is no order as to costs. DATED this 6~ day of November 2009 (J Cadenhead) District Court Judge 6