Jenkins v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 68 /95 AT WELLINGTON DCA No. 53/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN DOROTHY MAVIS JENKINS APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at _: Auckland on 31 march 1995 Date of Decision: 3 JULY 1995 Counsel: Appellant in person A.D. Fawcett for respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the Corporation should contribute to private hospital and surgical costs. 2 . The appellant is now aged 66. As a result of a head on motor vehicle collision on 7 December 1990, in which her husband died, she suffered multiple orthopaedic injuries including a fractured skull, dental injuries and fractures to the facial skeleton. Mr Martin Rees, a Plastic and Reconstructive and Hand Surgeon, submitted a Cl1 request for approval of private hospital treatment on 25 June 1993 to enable the appellant to undergo surgery to treat persistent enophthalmos and orbital dystopia. Mr Rees wrote:- "This lady is already incapacitated from other injuries. She still has double vision and gets exposure of the Rt eye owing to the Rt eyelid not being high enough. The lateral canthal tendon needs to be reattached higher up." The Corporation obtained the opinion Dr R.H. Burrell, a psychiatrist regarding the surgery recommended by Mr Rees. Dr Burrell wrote:- "Despite some earlier reconstructive surgery, Mrs Jenkins still has an obvious facial deformity. Her right eye and malar regions seem to be lower than on the left and she says (sic) difficulty coping in general ... Whereas she used to be an avid reader, Mrs Jenkins says she cannot read comfortably for any length of time now. Mood tends to be depressed particularly in the evening when she is most conscious of being alone. Other depressive features include loss of confidence, variable concentration and diminution of energy ... To answer the specific question posed in your letter of 6 August, 1993, addressed to Dr Ogg, I think it is fair to say that the completion of the surgical procedure advocated by Dr Rees would contribute significantly to her ability to participate in normal social activities which she has tended to 3. avoid in recent times because of embarrassment about her appearance, thus, I would advise that your Regulation 2 would apply in Mrs Jenkins' case." On 24 September 1993, the Corporation advised the appellant that her request for surgical costs was declined as she did not meet the criteria under the Regulations. The appellant therefore applied for review of the Corporation's decision and this proceeded to a hearing on 20 December 1993. The Review Officer in his decision dated 24 January 1994 said:- "I cannot accept that her principal economic activity is that of a voluntary worker. I believe she is mainly a retired person who carries out some, but not a considerable amount of voluntary work. The claimant is still able to drive, albeit with some difficulty. Again, her problems, including grief and the orthopaedic injuries, appear to me to have a far greater impact in preventing her returning to her principal economic activity. I also do not believe that the problem with her eye is profound as presented, and whilst acknowledging the pain, I am not persuaded that cosmetically, the injury has had as profound an effect on her social life or activities as presented. I believe her orthopaedic injuries are largely preventing her returning to her principal economic activity. ... Consequently, I am not persuaded on the available information and evidence presented to me that the claimant fulfils the necessary requirements for the approval of private hospital treatment. The application for review is therefore unsuccessful ..." The appellant underwent the surgery on 11 February 1994. The relevant Regulations are the Accident Compensation (Specialists Costs) Regulations (No. 2) 1990 (SR 1990/233). Clause 11(3) provides:- 4. "(3) The Corporation shall give the approval referred to in sub- regulation 1 of this regulation where (a) The procedure is specified in Part II of the Schedule to these regulations under the heading 'plastic surgical procedures', and (b) The Corporation is satisfied after obtaining such assessments as the Corporation considers necessary (which assessment shall be obtained at the expense of the Corporation), that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant." The appellant produced a report on her surgery by Mr Rees to the Corporation dated 22 February 1994 which was written after the review hearing. Mr Rees reported as follows:- "This lady, who has had a persistent enophthalmos and orbital dystopia despite a right malar osteotomy to elevate the right cheekbone and an orbital floor bone graft has required a repeat elevation of the malar and further orbital floor bone grafting with cranial bone. This was done on 11/2/94. Findings at the operation showed that the previously placed bone grafts had become displaced into the floor of the orbit which is a common occurrence in this type of injury. Even though the cheek bone had previously been raised 5mm as had been indicated to be necessary from the CT scans, it was raised another 5mm in order to bring up the right lateral canthus and also cranial bone graft was used as an onlay to build up the deficient inferior orbital margin and anterior wall of the maxillary antrim and the xygomatic arch. Further cranial bone grafts were applied to the orbital floor. The right inferior orbital nerve was also dissected free of the bony canal to relieve its entrapment. This was done because of 5. this lady's intractable and chronic pain in this nerve distribution. It is interesting to note that on the first post operative day this lady said that the pain in her right cheek had gone and presumably this has been from the disentrapment of the nerve. Her appearance is also significantly improved, allowing for the swelling. The effect of her double vision can only yet be determined. This will be done once all the swelling has settled down. It may be that she doesn't need the prisms in her lenses. Again, this is yet to be determined. I am intrigued that a certain Dr Spence has recommended that the type of surgery I have just carried out be done most appropriately in the Middlemore Plastic Surgery Unit. As I am the surgeon in that unit who has the most experience in cranio- facial surgery, I would be the most likely one to carry out this surgery and Dr Spence was unwittingly referring her back to me for the appropriate treatment. Whilst the venue for the treatment may have been in doubt the need for the surgery I think was not. Whilst this lady may have had some corrective prisms for her double vision following the first surgery I believe the double vision was not so severe following the initial surgery. Hopefully it will have been improved yet again although one cannot make any prognostications as the double vision can be due to many different factors." The appellant also produced photographs of her facial injuries prior to and after the latest surgery. Her appearance has significantly improved. The appellant submitted that treatment was provided in conditions which satisfied Clause 11(1)(a) and relies on the decision of Riley v ACC (1991) NZAR 348 and Wills ACAA 328/90 as authority that if approval is sought but declined and the decision to decline was wrong or was based on a 6. mistake then payment can still be made. The procedure undertaken by Mr Rees is a procedure specified in Part II of the Schedule under No. 376 and 379 and Clause 11(3)(a) is therefore satisfied. In addition to Dr Burrell's report, Mr Rees Cl1 request referred to double vision and exposure of the appellant's right eye and Dr Rees' report of 11 June 1993 confirmed that she was suffered on-going pain in the region. At the review hearing, the appellant gave evidence, that she had difficulty driving, was in constant pain and that she suffered an obvious facial deformity. The appellant also described how she suffered with constant pain in her right eye area. Her voluntary work had been affected because of her facial injury and she had difficulty visiting friends, going to the cinema and had problems with crowds. The appellant submitted that if her voluntary work is not considered her principal economic activity, then clearly it must be seen as a social activity which was hampered by the injury to her face. Prior to the surgery she had double vision, constant pain, difficulty driving, could not read for long periods. She said she was depressed and suffered from a lack of confidence and tended to avoid social occasions because of her appearance. Since the surgery all of those problems have" resolved, and as a result she is now able to participate in the normal social activities that might be expected of her. This is supported by Mr Rees' report dated 22 February 1994 which makes it plain that the need for her surgery was not in question. 7. The appellant referred to the cases of Bradding ACAA 431/92 and Shepherd ACAA 302/92 in support of her submission that she comes within the participation in social activities test set out in the Regulations. In particular, she notes that Bradding is authority for the point that "normal social activities does not have to be given a restricted meaning but can be looked at in a broad way." The Shepherd decision refers to a man who received facial injuries not too dissimilar to her own. In that decision the appellant was successful where facial scarring was causing emotional problems, even though he was still engaging in sporting activities. The Shepherd decision also refers to the earlier decision of Pace ACAA 287/91, where Mr B.H. Blackwood supported a liberal interpretation of sub-clause (3)(b). The appellant also relied on the fact that the initial surgery which required further work, was found to come within the criteria of the Regulations and was approved. She had difficulty understanding why the further surgery was not approved. For the respondent Mr Fawcett submitted that the treatment was not necessary for the claimant to participate in normal social activities. Mr Fawcett submitted first embarrassment alone is not sufficient grounds for approval if the appellant is still able to participate in normal social activities. He relied on Dr Burrell's report dated 27 August 1993. Mr Fawcett referred to Ross ACA 19/1993 where the Corporation's decision to decline approval for private treatment to repair school student's disfigured lip was upheld on appeal as it had not prevented him from 8. participating in his normal social activities. In Bradding ACA 431/92 teeth implants were allowed for a ski instructor on the grounds that a dental plate caused embarrassment and emotional withdrawal. Mr Blackwood in his decision said:- "The terms 'normal social activities' does not have to be given a restricted meaning but can be looked at in the broad way. In a broad way the change in Miss Bradding's demeanour following the treatment has obviously been noticeable and beneficial. " Mr Fawcett submitted that the evidence did not indicate that the appellant was prevented from participating in normal social activities due to her vision or facial problems. He referred to Dr Burrell's report dated 27 August 1993 which said:- "Whereas she used to be an avid reader, Mrs Jenkins says she cannot read comfortably for any length of time now." He then referred to a report- from Mr L. McGrice dated 7 December 1992:- "Examination. Both eyes were generally healthy. Mrs Jenkins was found to be long sighted but had normal vision with glasses for distance. These glasses were in the form of bi-focals, although she saw the smallest test print easily with each eye separately, she had double vision for close work using her original bi-focals that she was using before her accident. In order to be comfortable for close work Mrs Jenkins has been prescribed some reading glasses of similar strength to the lower part of her bi-focals but with prisms in place to overcome the 9. ocular muscle imbalance that she has for close. This ocular muscle imbalance is directly the result of Mrs Jenkins' accident. Earlier, following her orbital surgery, she had a lot of double vision in all directions of gaze, even in the distance. This has now settled only to be present for close work and is relieved by special glasses containing prisms to overcome the ocular muscle imbalance." Mr Fawcett further submitted that the appellant's social activities have been affected because of her other injuries. The Cl1 request for approval of private hospital treatment form dated 25 June 1993 states:- "Is the lady currently incapacitated from normal duties - this lady is already incapacitated from other injuries." Mr Rees in his report dated 11 June 1993 states:- "Socially she has had a very limited social life since her accident because of her orthopaedic injuries and she has had to give up doing her voluntary budgeting work and voluntary visitation of the sick." Dr Burrell in his report dated 27 August 1993 states:- "Mrs Jenkins still has some unresolved grief issues including a sense of anger, and some emotional constriction ... There are some depressive features which need to be addressed within the context of further grief counselling." 10. The first question is whether the respondent should have been satisfied that without the completion of the procedure, the appellant would not be able to participate in the normal social activities that might be expected for her if she had the surgery. I am satisfied on the balance of probabilities that the appellant's ability to participate in social activities had been adversely affected by her facial deformity. Dr Burrell in his report refers to an obvious facial deformity despite some earlier reconstructive surgery. He commented that she had difficulty coping in general, her mood tended to be depressed and she suffered "loss of confidence, variable concentration and diminution of energy." Dr Burrell considered that the surgery proposed by Mr Rees would contribute significantly to her ability to participate in normal social activities when she had tended to avoid because of embarrassment. The appellant confirmed that prior to the surgery she was depressed, lacked confidence and tended to avoid social occasions because of her appearance. Mr Rees in his report of 22 February 1994 following surgery confirmed that not only the "chronic and intractable pain" in her right cheek had gone but her appearance was "significantly improved, allowing for the swelling." As a result, the appellant is now able to participate in the normal social activities that might be expected of her. The respondent contended that the appellant's social activities had been affected by her orthopaedic injuries but this was to be expected until she recovered. The respondent should have been satisfied that without the further surgery on her face which required a repeat elevation of her malar and further orbital floor bone grafting with cranial bone, the appellant's facial deformity --- 11. was such she was not able to participate in the normal social activities that might be expected of her. Accordingly, pursuant to Clause 11(3) the Corporation should pay for the treatment in accordance with the Regulations, and-I do not have to consider the argument relating to "principal economic activity" in Regulation 11(2). The appeal is allowed. The appellant is entitled to costs. Leave is reserved to apply to have costs fixed if an appropriate amount cannot be agreed. & comonth (Jane H. Lovell-Smith) District Court Judge