DL v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2012] NZACC 324 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DL (ACR 316/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 17 September 2012 APPEARANCES Ms K Lau, Counsel for Appellant Mr L Barrington, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] At the request of Counsel for the Appellant I make an order pursuant to Section 160 prohibiting publication of the name of the appellant, or of any particulars likely to lead to her identification. [2] This appeal concerns two related primary decisions of the respondent which were both heard together at review, and with the Reviewer issuing a decision on 3 May 2011 confirming the respondent's two primary decisions. [3] The two decisions of the respondent in issue are firstly its decision of 23 July 2010, whereby it determined that the appellant did not have any ongoing incapacity due to a mental injury of chronic pain disorder. The second decision was the respondent's decision of 15 September 2010, whereby the respondent determined that 2 the appellant did not have any ongoing incapacity due to her covered personal injury, and thereby she no longer had an entitlement to weekly compensation. [4] The background facts relevant to the issues in this appeal may be noted as follows: On 14 June 2007, being the day before her 44" birthday, the appellant suffered an injury to her back whilst on holiday in Melbourne, Australia, when she was sucked into a spa pool jet. Although she was on holiday at the time, the appellant was employed as a Community Social Worker at the Downtown Community Ministry in Wellington. On her return to New Zealand the appellant consulted her GP and she received treatment of a conservative nature from her GP, through to December 2007. In early December 2007 the appellant was referred by her GP to Mr Peter Welsh, Orthopaedic Surgeon, because of her ongoing back pain. He arranged an MRI scan and this identified a significant disc prolapse at L4/5. In December 2007 the appellant underwent surgery to treat that condition at the Wellington Public Hospital. The description of the surgery carried out was that of a lumbar discectomy. It should be noted that at this time the appellant did not have cover for that injury, but she did have cover for earlier injuries, being firstly a sensitive claim for childhood sexual abuse, and secondly, an injury suffered in July 2004. The details of this injury have not been provided to the Court, but it is the case that the respondent was informed of the surgery of December 2007 and where Mr Welsh, the Orthopaedic Surgeon, noted in the letter that he was referring to "ACC Claim No. K1150538101 - date of injury 15.07.2004". Other correspondence also referred to that same ACC claim number, but which was referring to the situation pertaining to the injury suffered by the appellant in June 2007. 3 It is the case that the appellant did not seek cover for her back injury suffered on 14 June 2007 until August 2009, and where the respondent, by decision dated 3 September 2009, granted cover to the appellant for that injury, and where the claim number provided was 10010133970. It is the case that until that grant of cover all medical reports referred to the earlier ACC claim number. It is the case that the appellant did again commence to experience pain her back and in addition to which she was suffering from cauda equina compression and bladder/bowel incontinence. The appellant was not able to resume employment and throughout 2008 and 2009, and into 2010, she was seen and treated by a significant number of specialists for various conditions In June 2010, the appellant was seen and examined by Dr John Vickers, Psychiatrist, and it was following his report to the respondent that it issued its decision of 23 July 2010 determining that the appellant did not have any incapacity due to a mental injury of chronic pain disorder. On 21 August 2010, Dr D A Waite provided a report to the respondent following his examination of the appellant, and it was on the basis of his advice that the appellant's back injury was not the cause of her current problems that the respondent issued its further decision of 15 September 2010 determining that the appellant was no longer incapacitated by that covered injury. Following those decisions further medical reports have been obtained and these were presented at the review hearing. In the review decision the Reviewer advised that he preferred the evidence of Dr Vickers in relation to matters pertaining to the first decision in issue, and insofar as the issue relating to incapacity, the Reviewer preferred the report of Dr Waite, as well as that of Dr 4 Welsh, he noting that no expert evidence had been produced which would suggest that Dr Waite's report and conclusions were flawed. (5] The Court has been provided with a significant number of medical reports, many of which relate to the appellant's medical condition in 2008 and 2009, and which I consider to be not specifically relevant to the issues in this appeal, where the only relevant reports are those that were provided in 2010, leading up to the dates of the respective decisions. [6] In her submissions on behalf of the appellant, Ms Lau referred to a number of reports which she contended supported the appellant's position in relation to the two decisions in issue, and the relevant passages to which she referred were as follows: 1. Report from Dr G Kanji, Musculoskeletal Pain Specialist, dated 16 November 2009. Dr Kanji noted the appellant's current situation as follows: Prolonged standing, sitting and walking aggravates pain. There is constant pain in the low back region. This is described as deep and dull. Left leg sharp shooting pain is present to the calf region. There is numbness down the left leg lateral shin region. She experiences sharp shooting pain down the left leg once a weeks (sic) that lasts for a few minutes. Cramping is also present down the left leg. . . . D has unfortunately damaged the nerves to the bowel and bladder region from a cauda equina syndrome. Unfortunately once this develops the nerves have been compressed over the prolonged period and hence usually do not improve after two years. Cauda equina is a serious condition caused by compression of the nerves in the lower portion of the spinal canal. Cauda equina syndrome is considered a surgical emergency because if left untreated it can lead to permanent loss of bowel and bladder control and paralysis of the legs. It seems she will be left with permanent loss of bladder and bowel control. Report from Mr J Reitveld, Orthopaedic Surgeon, dated 26 February 2010. She is very tender in the back, has limited forward flexion before she gets pain down the left leg. Today she's got altered sensation in L4, L5, S1 and into the sacral distribution around the buttock area on the left side, normal on the right. ... A following up MRI scan done in May 2008 shows that this disc at the 4/5 in particular the large one here has been largely removed although there is still a foraminal component left to it and the one below it is still present. I think this lady has got on going cauda equine symptoms associated with her having had a large disc prolapse and injury to her lower cauda equina nerve roots. She has still got on going residual sciatica in that left leg on the basis of this as well. . . . 5 3. Report from Dr Kanji dated 26 February 2010 ... Symptoms of cauda equina are continuing including the bowel and bladder incontinence. D still has some disc prolapsed at the L4/5 and L5/S1 level especially on the left side. Unfortunately the incontinence continues and has not improved. 4. Report from Mr Rietveld dated 14 February 2011 to Ms Lau. . .. This lady's symptoms came about after she had disc prolapse and I believe is the direct result of a disc prolapsed affecting her sacral nerve roots as she had no symptoms prior to this whatsoever. Note neurological examination and nerve conduction examination and MRI scan of this area do not necessarily show any nerve injury in this area. I believe this lady should have been assessed in the spinal injury unit as her symptoms are consistent with sacral nerve root injury and I believe this is the cause of her problems, although her stress incontinence [may be] a contributing factor. However prior to her injury she would have had the stress incontinence as well and this was [totally] asymptomatic, therefore it is highly likely that the underlying injury she actually sustained to her nerves from the disc prolapse is what has caused this [ongoing] problem. . . [7] The medical reports relied upon by the respondent are as follows: 1. Report from Mr Peter Welsh, Orthopaedic Surgeon, dated 4 August 2009. was in for review today. She has some incontinence difficulties she says. I had available to me the report from Mr Kennedy-Smith, the urologist. He has thoroughly tested her, urodynamic studies were excellent. She didn't have any evident stress incontinence. She certainly does not have a neurogenic bladder. Thus her symptoms here do not arise as a consequence of her accident injury. Thus we are reassured on that front. I have reviewed with D the MRI scan of her back. They did a wonderful job of decompressing the damaged nerve area, and the MRI subsequent to operation is excellent. There is no requirement here for further surgery on her back. She has some minor mechanical back pain, she has no radicular nerve pain and so all is well from that point of view and return to normal activity as she is able. I don't see that further formal rehab for her back is required. From the point of view of the accident injury that got her into problem, I do have to say that the effect of that injury impact is largely spent at this time. 2. Report from Mr Welsh dated 28 May 2010. Mr Welsh was commenting on the reports of Dr Kanji and Mr Rietveld. Notwithstanding the comments from Dr Kanji and Mr Reitveld who obviously have not been privy to the material you have provided me with, or the reports of Mr Aliashkevich and Mr Kennedy-Smith in particular, who noted the normalcy of her urologic function from the neurologic viewpoint. 6 By definition then, D's symptomatic incontinence is not associated with ongoing cauda equina syndrome My own comments have been that she will have some mechanical back pain, she has some degenerative changes ongoing in her back, and of course the disc injury itself will be associated with some back pain. However, this is not disabling, restricting and certainly does not preclude her engagement in her previous employment as a social worker. B. Report from Dr J Vickers, Psychiatrist, dated 23 June 2010 The appellant was referred to Dr Vickers for assessment to determine whether her mental condition was clinically significant and had been caused by the personal injury suffered on 14 June 2007. Dr Vickers provided an 8-page report and the relevant passages were as follows: . . . With regard to her pain problem, my view is that this is readily explained by the serious back injury that she had and whilst psychological factors are present, I do not believe they play a particularly large role in this problem. . . I do not consider there to be any mental injury that is directly attributable to her back injury. I consider her incapacitated at present as a result of the non-injury related psychiatric disturbance that she is suffering from. . .. 4. Report from Dr D Waite, Occupational Specialist, dated 21 August 2010. Dr Waite was asked the following question: . .. Do you believe D is able to return to her preinjury occupation as a community social worker taking into account her back injury? I believe this is best answered by stating that I do not believe the back injury is in any way a major cause of D's current problems. I do not believe the report the reported back injury would prevent her from undertaking the work of a community social worker. This work in the main would be light to sedentary. There is no requirement for heavy lifting, bending or carrying. I believe with the provision for postural flexibility D would be able to undertake this work. I should however add that given the extremely complex picture there are other non-accident issues that would impact on her at present in undertaking this work. . .. DECISION [8] In this appeal it is essential to keep in mind the nature of the two primary decisions of the respondent which are in issue. 7 19] It is to be noted that the covered injury in issue is the injury suffered by the appellant in June 2007 and which was an injury to her lumbar spine. It is clear from the large number of reports that the appellant in fact had lengthy pre-existing medical conditions, and those factors, I find, do have relevance when considering the correctness or otherwise of the respondent's decisions. [10] Dealing first with the respondent's decision of 23 July 2010, that decision was a decision whereby it was determined that the appellant was not experiencing the mental injury of chronic pain disorder arising from that physical injury of June 2007. [11] The decision in question was not whether or not the appellant was suffering from any mental injury, but rather, whether she was suffering from a mental injury arising from the back injury suffered in 2007. [12] I make that comment because it seemed to be Counsel for the Appellant's contention that the point at issue in that decision was relating to any question of the appellant's incontinence as arising from the disc prolapse injury. Incontinence is not a mental injury condition, and its meaning, as contained in Blacks Medical Dictionary, states that it is a term applied to the inability to retain the evacuations of the bowel and bladder. [13] Now it is the case that the appellant was identified as having bowel and bladder problems, but they are not mental injuries, and therefore I find that evidence relating to those conditions is not relevant to the determination of whether or not this appellant is suffering from a mental injury arising from her physical injury. [14] On this issue, I find that the evidence of Dr Vickers is the evidence which considers the issue. He is a psychiatrist and is clearly the appropriate person to consider issues of mental injury, and his advice is that there is no mental injury attributable to her back injury. That is not to say that she does not have mental injury issues arising from other medical conditions, but that wider issue is not the issue in this appeal. [15] Accordingly, therefore, I find that the respondent was correct in its decision of 23 July 2010 to determine that the appellant had no ongoing incapacity due to a mental injury of chronic pain disorder. 8 [16] Turning now to the second decision in issue, namely whether the back injury suffered in June 2007 was continuing to cause ongoing incapacity. [17] Again, this issue must be considered against the wider background of other medical conditions which the appellant has, and which predated the covered injury in question. It is to be remembered that the appellant did not attain cover for this injury until September 2009, and prior to that it would seem from the various reports from the medical specialists who were looking at the appellant's situation that there had been a continuation of earlier covered injuries. [18] As earlier noted, the respondent issued its decision determining that the appellant was no longer incapacitated from that July 2007 injury based on the report it had received from Dr Waite. His report covered five pages, and in it he noted that the appellant had a very complex history with a number of physical injuries as well as certain psychiatric problems. I have earlier set out the final comment made by Dr Waite, whereby he determined that there was nothing ongoing from that back injury which would prevent her from undertaking the work of a community social worker. However, he did note that there were a number of non-accident issues which would impact on her ability to work, and earlier in his report he noted the appellant's past medical history as follows: . . . D has a longstanding history of asthma. She has Hepatitis C which is continually monitored. She has previously had two caesarean sections. D is a type II diabetic. In the past she has suffered facial and upper limb fractures. There has been recent surgery for bilateral carpal tunnel. . . . Dr Waite also noted the comprehensive psychiatric assessment carried out by Dr Vickers, which identified a number of problems. [19] The contrary view to that of Dr Waite comes from Dr J Rotherham, Consultant Anaesthetist and Pain Specialist, and Dr Rietveld, Orthopaedic Surgeon. It is the opinion of those two specialists that the appellant does have significant ongoing chronic lumbar pain arising from her covered injury, and on the basis of their assessments it is stated that the appellant is unable to return to her pre-injury employment. [20] Having considered all the evidence pertaining to the appellant's ongoing medical problems as of the date of the respondent's decision in issue, I have come to 9 the conclusion that it cannot be established, on the balance of probabilities, that the appellant was physically capable of resuming her pre-injury employment as there was evidence of ongoing pain associated with that covered injury. [21] Accordingly I find that it was not appropriate for the respondent to make a decision determining that the appellant had regained capacity for employment, and that decision is hereby revoked and the pre-decision status of incapacity is reinstated for so long thereafter as the appellant's medical condition can satisfy the test of continuing incapacity. [22] With the appellant being successful in one of the two issues in question, I consider that an award of costs to the appellant is appropriate, and accordingly I grant the appellant the sum of $2,000, together with any qualifying disbursements. DATED this 1" day of October 2012 M J Beattie District Court Judge