Peterken v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 114 AI 384/09 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO S 162 OF THE ACT BETWEEN CHRISTINA ELSA PETERKEN Appellant AND ACCIDENT COMPENSATION CORPORATION Responden Hearing: On the papers Judgment: 22 May 2015 DECISION OF JUDGE P A CUNNINGHAM ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal a decision of Judge Barber dated 16 February 2012. Judge Barber dismissed Mrs Peterken's appeal which had the effect of upholding a decision of ACC dated 17 February 2009 that Ms Peterken's current condition and incapacity were no longer the result of her personal injury on 7 June 1994. This was because her current incapacity was caused by arthritis in her hip and this arthritis was not caused by the accident on 7 June 1994. [2] A notice of application for leave to appeal dated 8 March 2012 was filed John Miller Law of Wellington. The file indicates that Mrs Peterken acted for herself both at the appeal hearing in the District Court and at the prior review hearing on 27 July 2009. The basis of the application for leave to appeal [3] The grounds set out in the application are: His Honour has erred in the interpretation of the legal tests regarding evaluation of medical evidence. [4] I could not see on the file any application for leave to withdraw filed by John Miller Law. Indeed I could see nothing else on the file from that law firm. It is apparent from some email correspondence between Mrs Peterken and the registry that Mrs Peterken wished to continue with the appeal notwithstanding that she was not represented. Why she has not been represented either at the review hearing or at the appeal is not clear from the file, and I must say that it is a shame Mrs Peterken has not had legal representation throughout this process. I say that because in my view Mrs Peterken's case likely would have been better presented with the assistance of counsel. [5] The registry directed this file to His Honour Judge Powell on 12 June 2014 because submissions had not been filed. Judge Powell made a direction as follows: In response to a request for submissions in support of the application for leave to appeal the applicant has advised the registry why she believes that District Court decision is wrong. Her emails to this effect will be treated as her submissions in support of the application for leave to appeal. The respondent is to file submissions within 21 days following which the application will be dealt with on the papers. [6] Mccabe & Co Lawyers filed written submissions on behalf of the respondent dated 7 July 2014. Ms Peterken replied by email on 29 July 2014. [7] This file was referred to me in late November or early December 2014. The delay in getting the application for leave to appeal progressed and dealt with has been inordinate. On behalf of the Court and for my part in the delay I apologise both to Mrs Peterken and to the Corporation. Leave to appeal to the High Court [8] Appeals to the High Court on a question of law are dealt with under s 162 of the Accident Compensation Act 2001. It says: 162 Appeal to High Court on question of law (1) A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. (2) The leave of the District Court must be sought within 21 days after the District Court's decision. . .. [9] One issue surrounding any application for leave to appeal is whether the application describes a point of law or questions of fact which are "dressed up" as points of law. Appeals on questions of fact are not permitted. [10] Although I do not have the benefit of submissions from the appellant on this issue, in my view what is the target of the grounds set out in the application for leave to appeal refers to paragraph [45] being the last paragraph of Judge Barber's decision. That says: Simply put, as at 17 February 2009, the evidence adduced from Mr Otto was sufficient to satisfy ACC, on the balance of probabilities that the appellant was no longer entitled to continue to receive the entitlements. [11] This refers to s 117 of the Act pursuant to which ACC cancelled Mrs Peterken's entitlements which says: 117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. . . . [12] The letter of 17 February 2009 cancelling Mrs Peterken's entitlements was not on the file. Judge Barber's decision outlines that the letter referred to medical information that her current incapacity was caused by her hip/lower back symptoms which were caused by arthritis in her hip. The arthritis was not caused by the accident on 7 June 1994. 13] The submission by counsel for ACC in the appeal hearing before Judge Barber (which the Judge accepted) was that it is incumbent upon ACC to establish that there is a sufficient basis for it to conclude that it is not satisfied the claimant is entitled to continue to receive entitlements. Thereafter the onus transfers to the claimant to prove, on the balance of probabilities, that his or her condition and incapacity are causally connected to an injury for which he or she has cover. 14] In Ellwood v ACC CIV-2005-484-536 Wellington Registry 18 December 2006 Mallon J the Court said that if the position is uncertain, then there is not a sufficient basis for terminating benefits. The "not satisfied" test is not met in those circumstances. The not satisfied test requires a positive decision equivalent to being satisfied that there is no right to entitlements. This test would not be met where the evidence was in the balance or unclear. Background [15] Mrs Peterken suffered a lumbar spine injury following a fall in June 1994. She had another fall in 2005. She suffered pain centred on her coccygeal region. She continued to work in her coffee bar. But when she had to sit or drive any distance the pain became worse. Sitting on a low couch also produced intense pain. [16] She was treated with physiotherapy, chiropractic treatment, acupuncture and steroid injections without any significant improvement. Her treating orthopaedic surgeon Mr Brian Otto carried out injections of steroids and local anaesthetic with some effect. By 2005 the pain was so intrusive Mrs Peterken underwent a coccygectomy (removal of the tailbone) which resulted in some effect. However the low back pain persisted. This was into the right buttock and sometimes into the right groin. [17] In a report dated 3 July 2008 Mr Otto stated that he believed the deep buttock discomfort Mrs Peterken was suffering from was caused by osteoarthritis in both hips particularly the right side. [18] The hearing before Judge Barber commenced on 24 March 2011. He requested a further orthopaedic report because Mrs Peterken did not accept Mr Otto's opinion. This was obtained from Mr Ross Bohm and is dated 7 May 2011. [19] Mr Bohm was clear that the origin of Mrs Peterken's pain was not coming from her hip and that the pain was buttock and lower spine related. [20] Judge Barber upheld Mr Otto's report saying this at paragraph [41]: I agree that, on balance, Mr Otto's report has more weight and relevance to the matters at hand. His detailed finding and supported conclusions, together with his history and familiarity with Mrs Peterken as a long-term patient, provide a sensible basis for me to place more weight and emphasis on his opinion over that of Mr Bohm. The medical information before the District Court Mr Otto's report [21] On 9 January 2008 Mr Otto wrote to Ms Peterken's GP. In the letter he referred to a recent admission to hospital to investigate Mrs Peterken's pain. The first sentence of the second paragraph reads: Clinical evaluation shows the right hip has good movements and does not appear to be the site of her symptom. [22] Mr Otto went on to say he thought the likely origin of the pain was- ...the L5-S1 disc, and that is manifest by her difficulty lying on her back, the start up pain that she has when she first gets up from sitting and the difficulty negotiating steps and stairs, walking up inclines, and entering and exiting the car, because of the asymmetrical loading on the disc as she does so. He recommended x-rays and an MRI scan. [23] After the x-rays Mr Otto wrote to Mrs Peterken. The x-rays showed the disc heights were all well maintained but he was concerned about osteoporosis. So he referred Mrs Peterken for a bone density scan. [24] After this happened he wrote to Mrs Peterken's GP again, on 10 March 2008. He reported that there was significant wear and narrowing of L3-4 space and a disc bulge at L4-5. He went on to say: . . . so there is enough change on the scan to account for the back pain that she is experiencing. . . [25] Mr Otto saw Mrs Peterken on 18 June 2008 for the purposes of a review. He subsequently wrote to ACC on 3 July 2008. The contents of this letter were relied on by Judge Barber. [26] As at 18 June 2008, Mrs Peterken's pain was described as "into the right buttock then into the groin". She said this was problematic when she stood up from a sitting position, it was causing her to have disturbed sleep despite being on strong painkillers, she had difficulty standing on one leg after showering as the groin pain became so intrusive. The pain had become more severe since January 2008. [27] Under the hearing "Clinical Findings" Mr Otto described restriction in her hip joint. He described restriction in abduction and that she had pain on internal rotation in extension and internal and external rotation in flexion. The right side was worse than the left. [28] Mr Otto went on to say that an MRI scan on 24 June 2008 showed osteoarthritis changes in the right hip joint, with a moderate sized effusion in the right hip joint. The left hip had changes but to a lesser degree. [29] Mr Otto concluded that the groin pain was coming from the right hip and that the arthritis in the hip does not normally carry with it an entitlement under Accident Compensation. Mr Ferguson [30] Mr John Ferguson is a spinal specialist. He saw Mrs Peterken and reported to her GP in a letter dated 17 December 2009. He noted in his letter that how successful Mr Otto viewed the coccygectomy was in relieving pain differed significantly from what Mrs Peterken said. She felt there was no improvement at all. Mr Otto's comments painted a picture of improvement in pain following the operation. Mr Ferguson described Mrs Peterken's present situation. .. . In any event the pain that now bothers her is with her almost constantly. It makes vacuuming next to impossible. When she is bent over she cannot stand up straight again for some time and driving is very difficult for her. She has to keep in a fixed position. Anything where she is flexed forward and pushing something in front of her tends to aggravate the pain and she finds herself unable to sleep without codeine... [31] The pain referred to is the same pain Mrs Peterken has always described namely- ...low back pain...that radiates through the right buttock and occasionally into the right groin crease.. . [32] The last paragraph of Mr Ferguson's letter said: I am not totally sure what is going on with Christina but she does has really had enough. I do not believe that the pain she wishes to be rid of will be helped by a total hip replacement. [33] No doubt this was based on his examination findings which revealed: Hip examination. She has a full pain free range of extension and flexion. She does get some pain with internal rotation at 90 degrees. However this not the normal groin pain she complains of. Dr Teoh [34] A rheumatology specialist Dr Teoh saw Mrs Peterken and wrote to her GP on 16 March 2009. He reviewed her hands which had previously had problems from carpal tunnel syndrome. In the letter he commented on her right groin pain. He said: I am suspicious that this might be related to degenerative disease in the right hip. [35] I have already referred to Mr Bohm's clear view of where Mrs Peterken's pain was coming from. One of the reasons he did not think it was from her hip was because: She does have some restricted range of motion as a result of the arthritis but it is not associated by groin anterior thigh pain which is the most common pain distribution of hip arthritis. [36] Mr Bohm said at the end of his letter: It is clear that the impact for Christina in terms of her income and lifestyle as of 2008 and her situation now living with her cousin in Tokoroa is significant and a large gap. Treatment was not discussed to any extent in this interview but the likelihood of producing a change from her current situation, residual effect of the coccygeal injury, subsequent management and low back change (sic pain) all of which can be tied in to the same injury are the most likely impact The existing osteoarthritis of her hip is a co-existing problem but not the central focus of origin of her pain. Discussion of medical evidence [37] In his decision, Judge Barber referred at some length to Mr Otto's report of 3 July 2008. This was the report prepared for ACC with regard to whether Mrs Peterken's ongoing incapacity was related to her spinal injury of 7 June 1994. In which Mr Otto said he believed her buttock and groin pain were associated with the osteoarthritis in her hip, in particular the right one. X rays and or an MRI scan taken on the 24" June 2008 had revealed degenerative changes in both hips. [38] Mr Otto's letter to Mrs Peterken's GP of 8 January 2008 stated that Mrs Peterken's hips had good movement and did not appear to be the site of her symptoms. His letter of 10 March 2008 said that following the MRI scan of her back, Mr Otto concluded that the changes in the disc spaces at L3/L4 and L5/S1 accounted for her back pain Mrs Peterken was suffering from. 39] That the same pain Mrs Peterken was suffering from in late June 2008 was now said to be coming from her hip was a change in Mr Otto's opinion about the origin of her pain. In his letter of 3 July 2008 Mr Otto had said that an abnormality of the L5-S1 disc was the most likely site for the reference of pain into the right groin and buttock. I find these two statements conflicting and confusing. 40] It is plain from the medical information in the reports and a letter from Mrs Peterken on the file that the pain Mrs Peterken is complaining about in relation to her back buttock and groin is the same pain she has had since before the operation to remove her tailbone in 2005. [41] Mr Teoh is the only other doctor who in anyway supports this new theory of Mr Otto as to the origin of Mrs Peterken's pain. Even then his expressed view is a suspicion only in relation to the right groin pain which he dealt with it in two sentences. Dr Teoh is a rheumatologist and the vast majority of his two page letter to the GP focused on the carpal tunnel syndrome in Mrs Peterken's hands. Which I see was also the subject of the review hearing but were not mentioned in the appeal case. I do not know the reason for this. [42] Mr Ferguson who is a spinal specialist did not commit himself to a diagnosis but as between the hip and the spinal area he said he did not think a hip replacement would help with the pain and he wondered if steroid epidural would be a good idea because he wondered if the pain was coming from the L4/5 disc. This signifies to me that this is where he thought the origin of the pain was. [43] Mr Bohm was firm in his view that the pain was not coming from the hip. This opinion appears to be based on his clinical finding that there was no anterior thigh pain which he said is the most common pain distribution of hip arthritis. He went on to say he was of the view that the residual effect of the coccygeal injury and operation and the low back pain were all tied into the same injury. [44] When I consider the fact that Mrs Peterken is not describing a new pain but pain she has had for many many years which is getting worse and the opinions of Mr Ferguson and Mr Bohm, I am unsure if Mr Otto's opinion (which changed suddenly in July 2008) that the pain is coming from the hip can be relied on. Judge Barber said there was no medical evidence to support Mrs Peterken's view that she disagreed with Mr Otto's opinion. In my view that cannot be right in light of the clear view expressed by Mr Bohm and the statements in the letter from Mr Ferguson a year later. Should leave be granted? [45] In Ellwood Justice Mallon agreed with the practice that has developed around how reviews and appeals from a decision by ACC to remove entitlements are dealt with. This is set out at para 52 of the decision. [46] Entitlements may be suspended if at any time ACC is not satisfied on the basis of the information in it's possession that the claimant is entitled to receive statutory entitlements. If entitlements are suspended then the claimant may seek review. When an appeal follows an unsuccessful review the District Court considers whether the decision was correctly made under the statutory test in light of all the evidence. [47] Justice Mallon went on to discuss what the statutory test was in Ellwood. As earlier described this requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain or there is not a sufficient basis for doing so, the "not satisfied" test in s 117 is not met. In opposing the application for leave, counsel for ACC submitted that Judge Barber applied the law to the applicable legislation and was entitled to prefer the opinion of Mr Otto. [48] In my assessment it is open to Mrs Peterken to argue that the "not satisfied" test was not met in her case. This is because at best there is a conflict of opinion about the origin of her pain in particular between the two orthopaedic surgeons who saw her and gave opinions about the origin of her pain. Mr Ferguson a spinal specialist supports the opinion of Mr Bohm. To a limited extent it might be said Mr Teoh supported the opinion of Mr Otto. Mrs Peterken's own evidence was that the pain was not new, it is the same pain she has been suffering from for over a decade. This would tend to support the opinions of Mr Bohm and Mr Ferguson. [49] I am reinforced in my view by the fact that in her email to the court dated 29 July 2014, Mrs Peterken advised that it was now five years on and she has not had to have a hip replacement. (In fact it is 6 years since Mr Otto's opinion of 3 July 2008). [50] In Heron v ACC AP 258/00 19 December 2001 Auckland High Court, Justice Fisher approved a list of authorities relating to special leave to appeal (at that time the District Court could not grant leave to appeal). That list included that it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision and that there is a reasonable prospect of success. Further the Applicant must show that leave is required in the interests of justice. [51] In my view there is a point of law that needs to be decided by a further appeal and it is whether the medical and other evidence met the "not satisfied" test set out in s 117 and as judicially defined by Justice Mallon in Ellwood. This is a case where it is in the interests of justice for leave to be granted because there is a considerable amount at stake for Mrs Peterken. She has had to adjust her circumstances considerably since her entitlements were discontinued in mid 2009. She has had to leave her own home to live with a cousin in Tokoroa because of the pain she is suffering from. [52] Mr Otto's opinion of July 2008 is almost 7 years old now. Mr Bohm's was 4 years ago. It is apparent there is a need for further updated medical reports to be prepared in anticipation of the appeal. It is clear from the file that Mrs Peterken has lost her confidence in Mr Otto's opinion. She feels that he may be unable to accept that the removal of the tailbone did not fix her pain and that this has influenced his view about the origin of her pain. In those circumstances it seems appropriate that whoever writes one or more medical reports for the appeal is someone other than Mr Otto. [53] I end by saying that it is important that Mrs Peterken's position in any appeal is presented in the best way possible. I encourage her to engage counsel to assist her in the appeal. The local law society or the registry of the tribunals in Wellington should be able to give her some assistance with this if she is unable to arrange her own counsel. Legal aid should be available if Mrs Peterken does not have funds to meet those costs herself. [54] As Mrs Peterken was unrepresented, there is no issue as to costs. Ill luringe! P A Cunningham District Court Judge AI 384-09 Peterken doc (sp)