Pincham v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 254/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN CRAIG PINCHAM of Howick Appellant (Appeal No. AI 87/04) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 30 July 2004 APPEARANCES/COUNSEL Appellant in person F. Becroft for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether the respondent was correct to decline cover in its decision dated 12 December 2003 for tinnitus suffered by the appellant. The essential issue in this case is whether or not the tinnitus from which the appellant suffers was caused by a routine hearing test on 20 May 2003. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/254- 2004.doc AE The Background of Facts [2] The appellant lodged a claim for cover for tinnitus on 29 September 2003. He attributed this tinnitus in his claim letter to a routine hearing test performed by Nicole Taylor, audiologist on 20 May 2003. [3] On 8 October 2003, the Corporation declined the appellant’s claim on the basis that the appellant did not sustain a personal physical injury for the purposes of the Act. [4] On 16 October 2003, the appellant filed an application for a review against the Corporation’s decision. [5] On 24 October 2003, the Corporation issued a decision indicating to the appellant that it would reconsider its decision, investigating the details of the claim. The appellant was asked to withdraw his review application and did so shortly thereafter. [6] The Corporation then arranged a specialist review with Mr Bartley, ear, nose and throat specialist. [7] The appellant also lodged complaints with the Health & Disability Commissioner and the Audiological Society of New Zealand. [8] Mr Bartley completed a report on 5 November 2003 indicating that the appellant was suffering from tinnitus. Mr Bartley was of the opinion that it would be extremely unlikely for any hearing test to have caused the appellant’s problem. He made particular mention of the fact that the condition should have had its onset immediately following the hearing test if the test was causative, rather than a number of hours later. [9] On 12 December 2003, the Corporation issued a further decision declining the appellant’s claim for cover. [10] On 5 January 2004, the appellant applied for a review of the Corporation’s decision. 254-2004 2 [11] On 16 December 2003, the New Zealand Audiological Society wrote to the appellant indicating that it did not believe that there was any evidence of a breach of the recommended testing protocol of the New Zealand Audiological Society Code of Ethics by Ms Taylor. [12] The review proceeded on 27 January 2004 before Ms Vivekananthan, reviewer. Ms Vivekananthan, reviewer, issued a decision on 5 February 2004 upholding the Corporation’s decision. [13] In support of the notice of appeal, the appellant has also filed an additional report from Nicole Taylor, dated 20 May 2003 in which Ms Taylor noted that there was no difference between the results on that day and the previous test undertaken of the appellant’s hearing on 12 May 2003. The Review Decision [14] The relevant parts of the review decision read as follows: “Decision Details Section 20 of the Injury Prevention Rehabilitation and Compensation Act 2001 (‘the Act’) is the general cover provision under section 20(2)(a), cover is extended to personal injury caused by an accident to the person. The relevant definition of ‘accident’ may be found in section 25(1)(a), which provides that an accident means a specific event or series of events, that: ‘(i) Involves the application of a force (including gravity) or resistance external to the human body, or involves the sudden movement of the body to avoid such a force or resistance external to the human body; and (ii) that is not a gradual process.’ Section 25(3) provides: ‘The fact that a person has suffered a personal injury is not to be construed as an indication or presumption that it was caused by an accident.’ ‘Personal Injury’ is defined in section 26 and means: ‘Physical injury suffered by a person, including, for example, a strain or a sprain.’ The onus is on Mr Pincham to prove, on the balance of probabilities, that he qualifies for cover under the Act. In particular, he must be able to establish that his tinnitus, the injury for which he seeks cover, was caused by an accident. Having had regard to the evidence and submissions presented by the parties, I find that ACC has correctly declined Mr Pincham’s claim for cover. In reaching this 254-2004 3 conclusion, I rely on the report from Mr Bartley. Mr Bartley is a specialist in ear, nose and throat surgery. He has examined Mr Pincham, and has carried out the appropriate tests. He comments in his report that it is, ‘extremely unlikely’ that the hearing test could have caused the tinnitus. Mr Bartley also explains that if the hearing test had caused the tinnitus, he would have expected the tinnitus to come on immediately after the test, and not a number of hours later. Mr Pincham has given evidence at the hearing that he only heard the buzzing noise in the evening. Mr Pincham has not provided any further persuasive evidence to challenge Mr Bartley’s findings. For the foregoing reasons therefore, ACC’s decision is upheld and the application for review is dismissed. This application is unsuccessful.” Legal Principles [15] Section 20 of the Injury Prevention Rehabilitation and Compensation Act 2001 provides: “20. Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts)— (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 caused by medical misadventure suffered by the person: (c) personal injury caused by medical misadventure in circumstances described in section 32(6): (d) personal injury caused by treatment given to the person for 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: (f) personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person: 254-2004 4 (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 that is a cardio-vascular or cerebro-vascular episode that is personal injury caused by medical misadventure suffered by the person: (j) 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)(d). (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.” [16] Section 25 of the Injury Prevention Rehabilitation and Compensation Act 2001 provides: “25. Accident (1) Accident means any of the following kinds of occurrences: (a) a specific event, or a series of events, that – (i) involves the application of a force (including gravity) or resistance external to the human body, or involves the sudden movement of the body to avoid such a force or resistance external to the human body; and (ii) is not a gradual process: (b) the inhalation or oral ingestion of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation or ingestion of a virus, bacterium, protoza, or fungi, unless that inhalation or ingestion is the result of the criminal act of a person other than the injured person: (c) a burn, or exposure to radiation or rays of any kind, on a specific occasion, which kind of occurrence does not include a burn or exposure caused by exposure to the elements: (d) the absorption of any chemical through the skin within a defined period of time not exceeding 1 month: 254-2004 5 (e) any exposure to the elements, or to extremes of temperature or environment, within a defined period of time not exceeding 1 month, that, - (i) for a continuous period exceeding 1 month results in any restriction or lack of ability that prevents the person from performing an activity in the manner or within the range considered normal for the person; or (ii) causes death. (2) However, accident does not include – (a) any of those kinds of occurrences if the occurrence is treatment given, - (i) in New Zealand, by or at the direction of a registered health professional; or (ii) outside New Zealand, by or at the direction of a person who has qualifications that are the same as or equivalent to those of a registered health professional; or (b) any ecto-parasitic infestation (such as scabies), unless it is work- related; or (c) the contraction of any disease carried by an arthropod as an active vector (such as malaria that results from a mosquito bite), unless it is work-related. (3) The fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident.” [17] Section 26 of the Injury Prevention Rehabilitation and Compensation Act 2001 provides: “26. Personal injury— (1) ``Personal injury'' means— (a) the death of a person; or (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person; or (d) mental injury suffered by a person in the circumstances described in section 21; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body. 254-2004 6 (2) ``Personal injury'' does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). (3) ``Personal injury'' does not include a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in section 20(2)(i) or (j). (4) ``Personal injury'' does not include— (a) personal injury caused wholly or substantially by the ageing process; or (b) personal injury to teeth or dentures caused by the natural use of those teeth or dentures. (5) For the purposes of subsection (1)(e) and to avoid doubt, ``prostheses'' does not include hearing aids, spectacles, or contact lenses.” [18] Pursuant to section 20 of the 2001 Act, a person has cover for personal injury if he or she suffers a personal injury caused by accident, medical misadventure, or by gradual process. Section 25 of the 2001 Act sets out the definition of “accident” which involves the application of a force or resistance external to the human body, involving the sudden movement of the body to avoid such a force or resistance external to the human body. [19] The onus is on the appellant to show on a balance of probabilities that his tinnitus arose from an accident as defined by the legislation. [20] It is ultimately for the Court, not for medical opinion, to decide what was the standard of care required of a doctor in the circumstances of each particular case. The Court is not bound to hold that a doctor escapes liability for negligent treatment or diagnosis just because he/she leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. However, such medical evidence is treated with great respect and the circumstances in which the Court would disregard this type of the evidence would be rare. However, the evidence tended should always be subject to critical and logical analysis. [21] The case of Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635, is a decision of the House of Lords and succinctly sets out the principles relevant to a finding of negligence concerning a failure to diagnose. Generally, that case is an authority for the proposition that where the defendant can call a reputable expert witness to say on the material available that the witness would have made the same diagnosis a finding of negligence will be difficult to sustain. In the light of 254-2004 7 Bolitho [1998] AC 232 the totality of the evidence has to be looked at with critical analysis. However, the medical evidence must be given considerable weight. The Medical Evidence [22] Mr Bartley, ear, nose and throat surgeon, clinically examined the appellant and completed a report for the respondent on 5 November 2003. He detailed the events leading up to the onset of the appellant’s tinnitus and identified that an examination of the appellant’s ear, nose and mouth was normal. He also indicated that the appellant suffered from high frequency hearing loss, with no obvious cause. With respect to the issue of causation, he stated: “In my opinion, it would be extremely unlikely that this hearing test could have caused the problem. If it had caused the tinnitus, then this should have come on immediately after the hearing test and not a number of hours later. If these types of hearing tests cause a problem, then there would be a significant number of patients complaining of tinnitus after having had the test. While it is possible this could be related to the hearing test, if one looks at the balance of probabilities, it is extremely unlikely that the hearing test contributed to his tinnitus. It would however be important to organise continuing monitoring of this ear and ensuring that possibly an MRI scan is taken at some stage to exclude any significant intracranial pathology.” The Submissions of the Respondent [23] It is submitted that the medical evidence in this case indicates that the appellant suffers from the disease of tinnitus, unrelated to any audiological testing carried out by Ms Taylor, audiologist, in March 2003. [24] It is submitted that Mr Bartley is clear that it is extremely unlikely that the appellant’s tinnitus is related to the audiological testing undertaken by Ms Taylor. Mr Bartley places emphasis on the fact that the onset of the appellant’s tinnitus occurred several hours after the testing, rather than immediately after. This fact is confirmed in the appellant’s testimony at the review hearing, recorded at page 3 of the transcript. [25] It is also noted that complaints by the appellant to both the Health & Disability Commissioner and the New Zealand Audiological Society have not resulted in any findings of fault against Ms Taylor. In fact, in a letter from the 254-2004 8 New Zealand Audiological Society dated 16 December 2003, Ms Gunn, after a review of the matter states in her final paragraph: “We have examined the information provided by Ms Taylor and yourself and have found that there is no evidence of a breach of the recommended testing protocol or the New Zealand Audiological Society Code of Ethics by Ms Taylor.” [26] In short, it is submitted that the medical evidence available indicates that the cause of the appellant’s tinnitus is unrelated to the claimed incident. Particular reliance is placed on the report from Mr Bartley whose view has not been contradicted by any additional medical evidence filed by the appellant. The Submissions of the Appellant [27] The appellant submits that before 20 May 2003 he had no symptoms of tinnitus and that it was after the hearing test on that date that he first experienced the same. He said on that date the testing level was too loud. He said that at end of the test the noise was extreme. The appellant attended two hearing tests with Ms Taylor and he noticed that the second test was much louder than the first. The first test was comfortable, but he was not happy when he left the clinic after the second test on 20 May 2003. On the evening he returned home he noticed that inside his head was a constant strong electrical noise or pulse, which should not have been there. [28] The appellant submits that the temporal connection is more than coincidental and that the event on that day was responsible for his present condition. The ringing in his ears still persists. In answer to Mr Bartley the appellant says that while he only became of the ringing in the ears that night, he was not sure what had happened earlier, until he was in a quiet place. Further the appellant points to the awareness of tinnitus, according to Mr Bartley, when thing are quiet. If this is the case the appellant would only record or be aware of the tinnitus until the peace of night, some hours after the test. Decision [29] I have carefully balanced the submissions of the appellant against the medical evidence in this case provided by a specialist Mr Bartley. I recognise at once the temporal connection relied upon by the appellant. I, also, give weight to his submission that to him the sound of the second test was greater than the first. 254-2004 9 Against that must be considered the letter dated 28 October 2003 received from Ms Taylor that the appellant did not complain about any discomfort at the time of the test. Mr Bartley thought that it was extremely unlikely that this hearing test has caused the problem. Mr Bartley said that while it was possible the tinnitus was caused by the test, if one looks at the balance of probabilities it is extremely unlikely that the hearing test contributed to the tinnitus. [30] I have sympathy with the appellant. I have come to the view that the specialist medical evidence is compelling and I cannot on a probability basis find there is a causal connection between the hearing test on 20 May 2003 and the development of the appellant’s tinnitus. Apart from the submissions made by the appellant, the medical evidence is not contradicted by any other medical evidence. On a consideration of all the evidence I cannot as a fact find that the appellant has discharged the onus of proof entitling him to cover. [31] The appeal is dismissed. There will be no order as to costs. DATED at WELLINGTON this ……23rd...… day of ………August………. 2004 (J. Cadenhead) District Court Judge 254-2004 10