DAC v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 1 64 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DAC Appellant (Appeal No. DCA 480/98) ---- -- AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at TAURANGA on the 19th day of May 1999 APPEARANCES Mr G A Walsh, counsel for appellant Miss A H Cecil-Gibson, counsel for respondent DECISION AND DIRECTIONS OF JUDGE M J BEATTIE At the hearing of this appeal I indicated to counsel that I considered that the appeal as it was presently constituted was not going to achieve a definitive end to the core issue which had brought the parties to this point of an appeal. The central point is that the appellant seeks funding from the respondent for a laparoscopic gastric banding operation. The statutory framework for the appellant's 2 entitlement is provided by s.27 of the Act together with the Accident Compensation (Specialists) Costs Regulations No. 2 (1990). The appellant's request for the surgery was made by her GP, Dr Briscoe and supported by the appellant's counsellor, Keriata Paterson, Registered Psychologist. The proposed surgery also has the support of Mr McDrury, Registered Psychologist who has also been treating the appellant. The request for the treatment was considered by the respondent on the basis of whether there was an established causal connection between the appellant's personal injury for which she had cover, namely the physical and psychological effects of years of sexual abuse by her father, and the gross obesity from which the ---- -- appellant is now suffering. In its letter of 1 July 1998 the respondent advised that it was declining the appellant's request on the basis that its research suggested that while there may be a linkage between sexual abuse and morbid obesity, current treatment focuses upon the management of negative emotional states and the increasing capacity to control eating when experiencing such states. It was the respondent's view that its funding in this area should be restricted to focus on the underlying psychological problems arising from sexual abuse rather than surgery to treat obesity. It concluded that whilst there may be anecdotal reports associating obesity with past sexual abuse, well constructed research is sparse and does not establish a definitive causal link. Thus it was on the basis that no causal link could be established between the appellant's obesity and the sexual abuse, being the personal injury for which she had cover, permission for the surgery to be funded by the Corporation was declined. When the matter came on for hearing before the Review Officer the same postures were adopted by the appellant and the respondent. The appellant, through counsel, sought to establish that the medical literature did establish a clear and definitive causal link between sexual abuse and subsequent obesity through binge eating, and the respondent sought to establish that the level of research could not take the matter as far as establishing a link. 3 Essentially the evidence on behalf of the appellant was that from Mr Drury and that on behalf of the respondent was Dr Clarkson. The Review Officer concluded his decision by stating that he accepted that the literature established that sexual abuse is a significant contributory factor to obesity. However he stated: "It must also be acknowledged that there are many intervening events and other environmental influences between the sexual abuse and the consequent obesity. DAC has had other hardships in her life and it cannot be discounted that over-eating itself is the direct cause of obesity. On balance of probabilities I am not persuaded that DAC's obesity is a direct result of sexual abuse and the request for surgery is declined." Thus the issue as it was presented to this Court on appeal was whether the respondent was correct to find that the appellant's obesity was not directly or causally linked with the sexual abuse which she had endured for a number of years in her youth so as to be considered itself an injury arising from that sexual abuse. The respondent has clearly identified the need for that direct causal connection as a prerequisite for approval of any treatment. The respondent has not considered the provisions of the Specialists Costs Regulations as such, in particular, it has not considered whether the proposed surgery would be treatment for personal injury that is covered by the Act. If this Court had made a favourable decision to the appellant on the narrow issue before the Court, this would not have advanced the appellant's cause a great deal. It would then have required the respondent to again consider the provisions of s.27 of the Act and the Specialists Costs Regulations, particularly Regulation 5, as laparoscopic gastric banding surgery is not a specialist procedure specified in Part II of the Schedule to these Regulations. In those circumstances the respondent would be required to be satisfied, before the procedure is performed and having sought the comments of the appropriate professional group for the speciality concerned, that the procedure is necessary and 4 appropriate for the claimant and is likely to be more effective than any procedure specified in Part II of the Schedule to these Regulations. At the hearing I advised counsel that I took the view that the issue of whether the fact of obesity was directly attributable to the sexual abuse was really not the issue that needed to be considered when the respondent was required to consider the appellant's application under s.27 of the Act. I indicated that the issue which needed to be considered was whether that particular surgery constituted treatment for her personal injury. That is a different concept than attempting to establish whether the obesity was a direct consequence of the personal injury that was covered. This same issue came before me in the decision of K D Crisp (Decision 239/98), although in that case counsel had correctly identified the issue as being one of treatment. In that case the appellant was seeking to have breast reduction surgery to assist with the treatment for her back injury where it had been established to the Court's satisfaction that such breast reduction surgery would alleviate the pain that the appellant was experiencing from the back injury being the injury for which she had cover. In that case it was not suggested that the appellant's over large breasts were in any way a consequence of personal injury by accident, nevertheless surgery to reduce them was found to be, on the evidence presented, a form of treatment to which the appellant was entitled to receive subject to satisfying the criteria in Regulation 5 of the Specialists Costs Regulations. In that case the matter was remitted back to the Review Officer for consideration of the Specialists Costs Regulations. I take the view that the same principles apply in this case as I found valid in the Crisp decision and in that regard the issues that need to be addressed have not been addressed by the respondent at any stage. The respondent obtained leave to produce a report from Dr. Mark Davis, Consultant Psychiatrist and I find that he has indeed identified the same issue as I indicated to counsel at the hearing. In his report, which is a response from the respondent's counsel for opinion on various matters, he states, inter alia: 5 "An opinion needs to be sought on whether, if DAC lost weight, what effect would that have on her process of resolving the impact of early sexual abuse? In particular what is the evidence to suggest that weight loss would have a positive or efficacious effect on her sexual abuse counselling." "I would suggest it might be valuable for an independent clinical review to be involved with the whole case and review the counselling so far, and also review her clinical status and her overall functioning and give an independent and expert opinion on what next is required for expediting the counselling process. I wonder whether this has got somewhat lost and forgotten under the process of focussing on the treatment for her morbid obesity. Such an expert opinion could be asked to look at whether it seems likely that her morbid obesity is causing emotional, psychological and social problems to an extent that it is a major complicating factor in her current rate of progress. The question is, is her morbid obesity interfering with overall progress resolving the effects of her sexual abuse. If this could be proved then there might be some value in looking very actively at treatment for her morbid obesity." I concur entirely with the observations made by Dr Davis and I indicated this to counsel at the hearing. I have described this decision as a Decision and a Direction. The decision that is made is that the issue for consideration under s.27 of the Act and the Specialists Costs Regulations is not whether there is a causal connection between the personal injury for which there is cover and the injury for which treatment is sought, but rather whether the treatment which is sought is treatment for the personal injury that is covered by the Act and that the procedure is necessary and appropriate for the claimant in the context of treatment. 6 Having identified that as a decision, I direct that this whole question be now remitted back to the Review Officer in accordance with Rule 16(2) of the Appeals Regulations to have the respondent consider the matters that have been identified by Dr Davis and set out in this decision and in so doing arrange for an independent clinical review to be made with particular emphasis on whether the gastric banding operation which is sought by the appellant, and the associated weight loss that would follow, would have a positive and beneficial effect on her sexual abuse counselling so that, in the words of Dr Davis: -- -- -- "she is helped to live more in the present than an ever increasing way so that the effects emotionally, physically and physiologically of past trauma are less present and intrusive." I commend the report of Dr Davis of 12 May 1999 as a blue-print for matters to be considered and I further direct that persons advising the appellant, be they medico or legal, be also kept informed by the respondent and invited to have input into the investigative and decision-making process that is required to be had by the Review Officer . In addition to that aspect I direct that the Review Officer have regard to the provisions of Regulation 5 of the Specialists Costs Regulations and to incorporate evidence, if necessary, so that a decision can be made on the appellant's application under Regulation 5 to the intent that all matters which are necessary to be considered in the appellant's application for treatment under s.27 are so, and an appropriate decision be made on all matters. I reserve the question of costs at this particular time. 7 The appellant's claim has all along been handled by the respondent in its Sensitive Claims Unit and in furtherance of that I direct that there be an order forbidding the publication of the name of the appellant or of any particulars likely to lead to her identification, such order being a permanent order and made pursuant to s.96 of the Act DATED at AUCKLAND this 29th day of June 1999 M J Beattie District Court Judge DCA480-98.doc(J9)