White v Accident Compensation Corporation

IN THE DISTRICT COURT AT HASTINGS [2016] NZACC 208 ACR 359/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF GEORGE WHITE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 26 July 2016 Appearances: J Grove, advocate for the appellant D Tuigeregere, counsel for the respondent Judgment: 8 August 2016 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This appeal raises issues regarding the interaction between the coronial jurisdiction and the issue of causal link between a covered injury and death in an Accident Compensation context [2] The specific issue arises from s 114(1) of the Accident Compensation Act 2011 "the Act"), the relevant part of which states in relation to interest payable on late payments of weekly compensation 114: Payment of Interest When Corporation Make Late Payment of Weekly Compensation: (i) The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within one month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment. 3] The focus is on the meaning of "all information necessary", because, on the evidence in this case, that "information" included, not only what the respondent had on its files historically preceding death, but also what information it had received from relevant Coroners regarding the circumstances of the death of Mr White. The appellant's position is that the applicable date is the date of death which is considerably earlier than what the respondent considers appropriate and that, in particular, the respondent did not need to wait until it had received the eventual Coroner's verdict.. [4] To better comprehend the matter, it is necessary to briefly outline the relevant facts: Mr White was in receipt of weekly compensation for permanent incapacity as a result of being kicked by a horse in the head in May 1983. He suffered concussion, wounds to the face area and eye, together with Post Concussion Syndrome. Subsequently his symptoms included epilepsy. . When he died in late 2004 a cover application was lodged but declined by the Corporation. That was unsuccessfully challenged on review but as a result of later developments within the coronial jurisdiction, eventually settled between the parties on appeal. . The cover agreed by settlement, recognised eligibility for a number of entitlements, including weekly compensation to his spouse and an arrears payment of weekly compensation of $71,802.70. The catalyst for that settlement and payment was the findings of Coroner Devonport on 21 October 2013. However the matter in terms of coronial involvement went back much further than that. After death, there was over a year's delay until a copy of a Coroner's report of 20 May 2005 by a Coroner under the former Coroners Act 1988 was made available. That finding noted "enquiries made by me in the post-mortem examination ... show the cause of death to have been cardiac arrhythmia". That was based on a post-mortem report by a forensic pathologist, Dr K White. Following receipt of that, the respondent sought advice from its Branch Medical Advisor, Dr Stormer, as to whether there was any causal link between death and the covered 1983 injury. The Branch Medical Advisor's advice in early 2006 included "Mr White was clearly severely incapacitated by the injury in 1983 but I am not aware of any direct link between the injury in 1983 and the death because of cardiac arrhythmia in 2004". That then resulted in a decision by the respondent on 8 March 2006, declining cover through the absence of an established direct causal nexus. An application for review was lodged in June 2006 and the issue was raised with reference to a completely unrelated autopsy report of another person, that Mr White may have actually suffered sudden unexpected death in epilepsy ("SUDEP"). The respondent arranged for Dr Stormer to consider that possibility and he responded on 30 July 2007. His report included: Even if it was certain that (the death of the unrelated person) represented a case of SUDEP that could not be extrapolated to suggest that Mr White's death was due to SUDEP. ... No medical or legal opinion has been supplied to suggest that (the available post-mortem evidence of cardiac arrhythmia) was incorrect. After the reviewer dismissed the claim an appeal was lodged in 2007. In 2009 the appellant provided letters from another forensic pathologist, Dr Rutherford, in September 2009, followed by a further report in May 2010. Key extracts from that, identified areas of disagreement with Dr White's findings concluding "a more reasonable cause of death might be sudden unexpected death in epilepsy or post-traumatic epilepsy or simply epilepsy, with or without a contribution from chronic alcohol toxicity (consequent upon chronic alcoholism) secondary to personality change from traumatic cerebral damage". As it happened, the appellant had taken steps to have the original Coroner's findings revisited, and in March 2013, the Deputy Solicitor General directed a fresh enquiry by another Coroner. In my capacity as the then Chief Coroner, I delegated that to Coroner Devonport.' . Coroner Devonport's findings were made in the form of an indication to the family in accordance with his practice of a proposed finding in Chambers.? Although there is no evidence tabled as to the precise date of the final certificate as to cause which would have been prepared by the Coroner and would lead to an updating to the Death Certificate, the obvious conclusion is that there was no objection to those proposed findings from family members. The detail of the Coroner Devonport's finding will be discussed in more detail later. A copy of those findings was produced in anticipation of an appeal in March 2014 but just over two months later the respondent advised the appellant's advocate that it would settle the appeal by granting cover for "sudden unexpected death in epilepsy" (SUDEP). The Coroner's Act 2006 had come into force on 30 June 2007 with the effect of replacing all the existing Coroner's including Mr Dennehy with new full-time coroners. 2 A Chambers finding or a finding on the papers was an option available to a Coroner, provided that the relevant family members had no objection and did not want an inqu [5] After calculating and paying the arrears referred to earlier, the question of interest under s 114 then arose. The respondent advised Mr White's widow on 6 January 2015 that it considered it only had all the information necessary in terms of s 1 14 at the time of the proposed Chambers' findings in 2013, and would pay interest from that date, viz 21 October 2013. The sum involved was just over $4,000. The relevant part of s1 14 states that interest is payable "from the date on which payment should have been made to the date on which it is made". [6] That letter was reviewed and on 21 October 2015 the reviewer dismissed the appellant's claim that the interest should be calculated from May 2004, viz the time of his death. [7] The reviewer noted the submission before him that the respondent had been paying weekly compensation until the date of death and that the appellant's submission that it thus had all the information available to calculate weekly compensation save for an alteration at 60% and that it should not be able to benefit from its own error to carry out a proper investigation in 2004. 8] The reviewer also noted that he had received submissions on behalf of the respondent with particular reference to the Court of Appeal in ACC v Miller where the Court had identified four possible scenarios that might apply. The particular scenario the reviewer concluded applied, was where "the original medical advice provided to the Corporation conclusively supports the cancellation of compensation but later advice received reaches a different conclusion". The reviewer considered that by analogy, the initial pathologist report and first coroner's finding was conclusive evidence at the time but, that the later advice in the form of a full autopsy report from Dr Rutherford plus an amended report from Dr White and, in particular, Coroner Devonport's amended findings, represented later advice leading to a different conclusion. Further that the Court of Appeal when discussing the interest question had ruled that in that scenario: 3 [2013] NZCA 141 It cannot be said that the Corporation had all information necessary to calculate the payment. That is because where all medical evidence available to the Corporation pointed against compensation it is not open to the Corporation to calculate and make the payments. In the circumstances interest will not become payable until such date as the Corporation does receive all necessary information. When determining when all necessary information is received however the Court must keep in mind that claimants ought not to be penalised for failing to provide information that has not been requested by the Corporation. Any new information receive by the Corporation should be promptly assessed and if it is necessary to seek further information either from the claimant or from (say) an independent assessor, this must be done without delay. [9] The reviewer then noted a further observation of the Court of Appeal based on the submission for the appellant that the Corporation would have had all the information in 2004 because it held information in relation to the entitlements from the time of injury until death. The reviewer noted that the Court had rejected that approach stating: In scenario 4 however at the point at which compensation is withdrawn, the Corporation does not have the necessary medical information. That is because the available medical evidence does not support continued cover. ... it cannot be correct that whenever the Corporation has been paying compensation, stops it, and later it is held compensation should have been continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed. [10] Mr Grove, at the appeal, advanced essentially the same submissions that were made to the reviewer and submitted that it was clear that the respondent held significant medical information indicative of the cause of death due to covered injuries which predated the first Coroner's report as far back as 1998. In particular reference was made to a letter from Dr J G Masterton that Coroner Devonport had referred to in the second Inquiry. [11] There were two letters from Dr Masterton tabled. The first is dated 18 July 1998 which noted: His epilepsy is certainly not well controlled and I think largely due to the fact that he is not good at remembering to take his medication ... I think we have to realise that this man's work capacity is extremely limited. The rest of the letter commented generally on the appellant's personal difficulties regarding collateral matters and rehabilitative issues. The second letter on 29 May 1989 was also to the respondent noting: On 13 May 1983 he was kicked in the face by the hind legs of his horse and as a result suffered the loss of vision in his right eye, developed traumatic grand mal epilepsy and extremely severe cervical spondylitis ... the results of his great efforts in seeking employment and being sacked have had a great influence on his personality and in fact he has become at time markedly depressed and psychotic. [12] Other correspondence with the respondent from an eye specialist and a rehabilitation report confirmed the severe effects of the kick, its effect on Mr White, and in particular, concerns about epileptic seizures. [13] A medical report of 29 August 1985 focused primarily on rehabilitative and motivational issues including issues with weight opined that: At this point I am prepared to accept that this man does have a problem. So far as his cervical spine and head injuries are concerned the nature of this problem has not yet been elucidated. So far as his lumbar spine is concerned it is probable that this is not related to his original injury but his problems will persist here as long as he continues to carry this colossal amount of weight on what is otherwise a fairly small frame. This man's post concussional headaches, neck, stiffness and head pain in general I am certain will subside in time as the vast majority of them do. Currently he is disabled to the extent of roughly 20% of total with regards to his neck and spine while it must be confessed that no precise nature of his injury can be stated at this point. [14] It appears all that and other general information was available to the Branch Medical Advisor Dr Stormer when on 14 February 2006 he made the following comment: Mr George White died 22/5/04 aged 52. The coroner (P J Dennehy (20/05/05) indicated that the cause of death was cardiac arrhythmia. The condition for which he had ACC cover was a head injury. He was kicked in the face by a horse (13/5/83) and sustained a severe concussion, Lee Fort ii facial fractures and a right eye injury that led to a loss of sight in that eye. He subsequently had severe post concussion syndromes with headaches, decreased concentration, irritability and chronic malaise. He developed post traumatic epilepsy and was unable to continue driving. Neck pain was ongoing. He developed depression and possible personality change. He never returned to normal employment. (See Dr J Loughlin 7/7/83, Dr P Baker 24/7/84, Dr P Hobbs 5/7/84, and several reports from his GP Dr J Masterton). You ask if the cause of death can be directly attributed to the accident and injuries of 13/5/83. COMMENT: Mr White was clearly severely incapacitated by the injury in 1983 but I am not aware of any direct link between the injury in 1983 and death because of a cardiac arrhythmia in 2004. [15] In a follow up opinion dated 30 July 2007 Dr Stormer's report included the following: Dr Meyer ... has indicated that Mr White suffered poorly controlled diabetes and ischaemic heart disease as a possible complication from this illness. Records show this patient did not follow instructions or treatment re his diabetes ... patient never received any anticonvulsant therapy during the time he consulted this clinic. Growing evidence indicates that patients in refractory epilepsy are at a heightened risk for mortality from sudden unexplained death epilepsy (SUDEP) - citing Rakel Conns's current therapy 2007 59" edition section 14 - Seizures and Epilepsy in Adults and Adolescents. Mr Grove suggests that Mr White should be considered an example of SUDEP. He has provided additional references on SUDEP. [16] Dr Stormer then noted the references supplied by Mr Grove at that time including Oppenheimer - The Brain May be Involved in Cardio Vascular Deregulation - cardiac arrhythmias may result from cortical derangement. Kahane- little is known about bradycardia and cardiac systole during epilepsy, stimulation of cortical areas can contribute to the genesis of oofictal bradycardia, Leungh - research supports the suggestion that cardiovascular responses have cortical representation which may have significance in some but not all cases of sudden unexpected death in epilepsy (SUDEP) - but there are missing links in the argument. He said: In support of his suggestion that SUDEP was responsible for Mr White's death Mr Grove has also provided copies of another person's post mortem examination and coroner's report - the implication appears to be that (that person) died of SUDEP. That person's cause of death was given as ischaemic heart disease in the context of recent seizure activity due to long term epilepsy. This suggests that (that person) died soon after an epileptic seizure. Whether the pathologist and the coroner believe that the physical exertion of that seizure precipitated the ischaemic period that led to his cardiac arrhythmia and death or that his cerebral pathology directly caused or contributed to (that person's) death is not clear. (That person's) post mortem examination showed very significant ischaemic heart disease with both coronary artery disease and ventricular hypertrophy. Neither the pathologist ... nor the coroner indicated they considered this a case of sudden unexpected death in epilepsy (SUDEP). Mr Grove appears to regard the absence of old or recent infarction as significant. The pathologist pointed out this was not an unexpected finding if death had occurred less than four hours after the onset of the final ischaemic episode. This neither proves nor disproves that this was a cause of sudden unexpected death in epilepsy (SUDEP). Even if it was certain that (that person's) death represented a case of SUDEP that could not be extrapolated to suggest that Mr White's death was due to SUDEP. ACC needs to make its decisions on evidence rather than speculation or theoretic possibility - currently the evidence indicates that Mr White died of cardiac arrhythmia. No medical or legal opinion has been supplied to suggest that this conclusion was incorrect. [17] Obviously on the basis of Dr Stormer's February 2006 comment the respondent had earlier written to Mrs White on 8 March 2006 including the following: To enable ACC to approve cover and entitlements in these circumstances, it must be first established that the cause of death has occurred as a direct result of personal injury caused by accident. The coroner has advised the Corporation that the cause of your husband's death was due to cardiac arrhythmia. Therefore there is no direct link between your husband's death and the injuries he sustained on 13/5/83 your application for cover and entitlements must regretfully be declined. [18] The respondent had, the previous year, in January 2005 written to Dr Meyer requesting a medical report and also to Coronial Services. At that stage the death certificate still noted "subject to coroner's finding". [19] On 14 and 15 September 2009 Dr Rutherford, in letters to Mr Grove, responded to a series of questions that have been posed. Key extracts from those letters include the following: 1. Does cardiac arrhythmia occur in most deaths and is it a recognised pathological cause of death.? A In a sense we all die from a cardiac arrhythmia of some sort. It really represents a mode of dying rather than a cause of death ... sometimes cardiac arrhythmia is given by pathologists as a cause of death when no pathological entity has been identified at autopsy to explain it the presumption being that there is some underlying abnormality of a molecular or biochemical nature causing instability of the heart muscle cells. As a stand alone cause of death cardiac arrhythmia is therefore very much a diagnosis of exclusion and tends to be used only as a last resort when we have no other explanation 2. What does a post mortem report find when the death is caused by a cardiac arrhythmia convey is the most likely pathological cause of death? A The most common cause of cardiac arrhythmia is an underlying pathological condition of the heart. As indicated above this is usually some physical abnormality of the heart muscle consequent upon narrowing of coronary arteries by fatty deposits (atherosclerosis) or by blood clot (coronary artery thrombosis) or by a blood clot superimposed upon fatty deposits 3. In regard to sudden unexpected death through epilepsy can you confirm the mechanisms of SUDEP include?: Cardiac arrhythmia. Microscopic myocardial damage from seizure induced catecholamine affects Neuropulmonary oedema. Central apnoea. A Cardiac arrhythmia and myocardial damage from catecholamine effects are on specific features that may be seen in many types of death. I've been unable to research the literature at short notice but am prepared to believe that they may be seen in sudden unexpected death in epilepsy ... without researching literature it seemed reasonable that these may represent a mode of dying and the entity known as sudden unexpected death in epilepsy. 4. Can you advise any other mechanisms of SUDEP?. A The mechanism of SUDEP is unknown. The name itself sudden unexpected death in epilepsy reflects the fact that nobody really knows how it occurs 5. What degree of risk exists for a person with the following medical history?: a. Severe traumatic head injury. b. Personality change. C. Development of grand mal epilepsy soon after the head injury. d. A history of regular seizures in the 20 years post accident up to the point of death. e. Irregular use of medications due to personality change. A I presume that the question means what risk of death exists for people with the above condition. If so all of the above conditions predispose to sudden convulsive activity and thus pose a threat to life by a number of different mechanisms including sudden unexpected death in epilepsy. 7 . On a scale of 100% what is the degree of risk of dying from SUDEP for a person with the above medical history?. A Unfortunately I'm not in a position to give a percentage estimate. As far as I am aware there are no formal published tables to estimate risks. All that can be said is that any person with a convulsive condition has a higher risk of dying without overt pathological manifestations than a person in the general population. [20] In his letter of 15 September, having apparently been provided with extract from Dr White's post mortem examination of Mr White, with detail about the findings with respect to the heart and coronary arteries together with an extract from the histology section, which he noted as somewhat conflicting statement that sections through the left anterior descending arteries show 60% atherosclerotic narrowing coupled with the previous history supplied... Given only the information provided above the balance of probability favours sudden death from epilepsy. The coronary artery atherosclerosis as observed it an autopsy (30%, 10% and 10% narrowing) would not normally be considered sufficient to result in symptoms or sudden death. Whilst the estimated 60% narrowing found on histology raises the possibility of ischaemia (failure of blood flow to heart muscle through narrowing of the coronary arteries) it is the general teaching that it would be unusual to have symptoms of sudden death with less than 70% gross-sectional area narrowing. .. there is a strong history of epilepsy and possible failure to comply with anti-epileptic medication. [21] On 6 October 2009, in a letter to the solicitors for the respondent the Branch Medical Advisor Dr Stormer, commenting on the advice from Dr Rutherford opined in respect of Dr White's post-mortem report : While the final comment of the report is that "in my considered opinion, the cause of death is as a result of cardiac arrhythmia", the comment from Or White that preceded this conclusion made it absolutely clear that this death was as a consequence of myocardial infarction. [22] Then noted: 1. I observe that Dr Rutherford was supplied with extracts from the post mortem report. He responds to questions based on selected segments of the report. He appears to have been asked to provide a professional opinion with crucial information pertinent to that opinion deliberately withheld from him. 2. Dr Rutherford acknowledges that while his responses to Mr Grove's questions have been provided in good faith they do not reflect a literature search or an in-depth research. This also potentially weakens the value of his opinion. 3. Dr Rutherford starts by acknowledging that in a sense we all die from cardiac arrhythmia of some sort. His statement therefore recognises that cardiac arrhythmia is an extremely non specific cause of death. 4. He elaborated by explaining that cardiac arrhythmia neither inherently nor completely indicates why a death has occurred. Dr Rutherford describes two quite different heart conditions in which cardiac arrhythmia might be a final mode of death. Had he been able to read the complete post mortem report it is likely he would have pointed out that Dr White had identified the first option he discussed (myocardial infarction due to coronary artery disease) as being applicable in Mr White's case and the probable cause of his death. . . . 6. Dr Rutherford is prepared to believe that the mechanisms of sudden unexpected death in epilepsy (SUDEP) include cardiac arrhythmia, microscopic myocardial damage from a seizure induced catecholamine effects, neurogenic pulmonary oedema and central apnoea. However he indicates that they are non specific findings - they would also be present in a number of other conditions. Dr Rutherford also points out that sudden unexpected death in epilepsy SUDEP is so called because it is not known how it occurs. [23] Dr Stormer also in that report, commented on other issues in somewhat of a critique of Dr Rutherford's letters and concluded: 12. It is not clear why Dr Rutherford on 15 September 2009 reaches the conclusion - in the absence of probability data - that the balance of probability favours sudden death in epilepsy. However it must again be acknowledged that he appears to have been provided with incomplete and therefore misleading information. 13. Mr White clearly had coronary artery atherosclerosis, he had had a myocardial infarction, there was evidence of right heart failure, and the probable and consequential cardiac arrhythmia was the cause of his death. 14. In the presence of clear evidence of the cause of death there is no need to postulate that he died from SUDEP and no evidence has been provided to suggest he did so. [24] Dr Stormer appended to that report some additional information regarding SUDEP including Chokroverty: sleep disorders medicine the phenomenon of sudden unexpected death in patients with epilepsy may account for up to 15% of deaths in epileptic patients and may be the result of some unexplained autonomic dysfunction affecting the cardiac rhythm. Also from Libby: Braunwal's Heart Diseases the underlying mechanisms leading to SUDEP are not clear and Goldman - Cecil Medicine in population based studies idiopathic epilepsy has little effect on mortality rates but secondary symptomatic epilepsy increases mortality rates 2-6 fold. [25] On 9 May 2010 Dr Rutherford gave a full autopsy report to Mr Grove, cross referenced to instructing letters from Mr Grove, the Police report to coroner, Dr White's autopsy report and an ESR toxicology report plus supporting background correspondence including the review decision. [26] Key extracts from that were that: Dr White's autopsy report did not include a clinical history it is therefore not clear from what perspective Dr White approached the autopsy. The degree of coronary artery atherosclerosis assessed at autopsy ... would not normally be sufficient on its own to explain death. Histological evidence of myocardial contraction bands affecting the right ventricle was reported. This is interpreted as representing right ventricular infarction. This cannot be correct for four reasons: A) Ventricular myocardial infarction is astonishingly rare. B) Myocardial contraction bands represent myocardial stress. C) I have examined the histological slides and remain unconvinced that contraction bands can be clearly seen; and D) The maximal stenosis was recorded as being present in the anterior descending branch of the left coronary artery. This does not correspond anatomically to distribution of blood flow to the right ventricle. [27] Dr Rutherford concluded: Cardiac arrhythmia is a mode of dying and not a cause of death. In a sense the terminal event in most if not all of us is cardiac arrhythmia. It is a bit like saying cessation of respiration. The term should not be accepted by Registrars of Births, Marriages and Deaths or Coroners unless there is some justification. Just like heart failure cardiac arrhythmia cannot be given as a cause of death without qualification. For example cardiac arrhythmia secondary to myocardial infarction, Wolfe, Parkinson-White syndrome or pulmonary embolism would be acceptable but cardiac arrhythmia cannot stand alone. Mr White was known to suffer from grand mal epilepsy. People with grand mal epilepsy are known to succumb to sudden unexpected death (mechanism unknown). No anti-epileptic medication was found in Mr White's blood on toxicological examination ... Mr White was known to have difficulty complying with medication. This difficulty is likely to have been secondary to personality change following his head injury. If one were to acknowledge the reasonable possibilities of death from epilepsy (given the doubt regarding death from cardiac disease as outlined above) then it might be argued that there is a causal chain of events between the original head injury and death. ... the possibility that Mr White had taken alcohol as a consequence of personality change secondary to the head injury does not appear to have been seriously considered ... the wedge shaped haemorrhagic area at the periphery of the lower lobe of the right lung remains unexplained. The possibility that it might represent pulmonary embolism has not been clearly expressed. 28] He concluded: I do not believe that the cause of death as formally given by the pathologist who was junior at the time is justified by the pathological evidence or the clinical history. The cause of death of cardiac arrhythmia should not have been accepted by the coroner because, unqualified, it represents a mode of dying and not a cause of death. A more reasonable cause of death might be sudden unexpected death in epilepsy or post traumatic epilepsy or simply epilepsy with or without a contribution from chronic alcohol toxicity (consequent upon chronic alcoholism) secondary to personality change from traumatic cerebral damage. [29] Coroner Devonport, in his proposed chambers finding of 21 October 2013 noted that he had become involved following a Solicitor-General direction that a fresh enquiry be opened and traversed the entire history of matters plus the two autopsy reports. At that time he also had available to him revised comments of Dr White which he had asked for as part of his fresh Inquiry. He also noted that for the purposes of that amended report, Dr White had recently received: Recent information including a statement by Mr White's daughter that in the few years before Mr White's death she had witnessed at least five seizures and another daughter who described a seizure in 2004 plus a statement from Mr White's widow including the fact that he had had seizures until he died including two close to death. [30] He noted: Dr White considered that in light of the further information supplied to her, which she did not have available when completing the autopsy in 2004 that she considered it reasonable to amend the cause of death to sudden death in a 52 year old man with epilepsy. [31] After further discussion about Dr White's amended report and explanation of other possibilities, he concluded that he was satisfied that the cause of death was: (a) Direct cause - sudden death in a 52 year old man with epilepsy. (b) Antecedent cause not applicable. c) Underlying conditions not applicable. Other significant conditions contributing to the death - ischaemic heart disease. And that: Mr White died from natural causes associated with epilepsy which he developed following a head injury. [32] Then followed the letter of settlement of 19 May 2014 from the respondent: ACC offers to settle this appeal on the basis that it accepts cover for sudden unexpected death in epilepsy (SUDEP). Analysis and Discussion [33] The issue, while essentially focused on the question of whether the respondent had "sufficient information" prior to Coroner Devonport's findings, dovetails with a submission by the appellant that the respondent should have further or better investigated the link between the covered injuries and death as early as the time of death, because of the information it already had on file some of which has been referred to in the context of the subsisting entitlements prior to death and compensation that was being paid. The submission of the appellant is, that when the initial decline was made immediately after death, it had considerable medical evidence of failure by Mr White to take anti epileptic medication due to accident caused depression which supported the application. The essence of the submissions seems to be that the scenario outlined in Miller is not an appropriate analogy because that was a case of a considered respondent decision to cancel or suspend, which was later to be found to be incorrect, but in this case compensation stopped because of death. Then a fresh application was lodged and the respondent did not appropriately investigate further, despite being on notice of the potential connection and in particular that the appellant should not be penalised for failure to provide information that had not been requested by the respondent. [34] The respondent's submission is that in all the circumstances the expertise on cause of death properly lies within the coronial system and in particular the advice received by a Coroner from a qualified pathologist i.e. initially Dr White to Coroner Dennehy, then latterly the amended conclusions of Dr White in light of Dr Rutherford's final full report. [35] Further, that the actions of the respondent were responsible and it was reasonable to await those findings as the Coroner, with pathology advice, was best placed to adjudicate the cause of death. [36] Further, that the advice that the respondent received from its Branch Medical Advisor was appropriately considered and the proposition that the Branch Medical Advisor "ought to have made something from the absence of anti epileptic medication in the post mortem report" was "a long bow to draw". Conclusion [37] In my view the respondent's submission has merit. The appropriate jurisdiction to formally adjudicate on the cause and circumstances of death in these circumstances is the Coroner. Although Dr Rutherford expressed views to Mr Grove to the effect that Dr White's initial pathology report should not have been accepted by the first Coroner, that overlooks the fact that the medical expertise for that Coroner, who is not medically qualified, is from a qualified pathologist. Dr White was such a pathologist. [38] The emerging view of Dr Rutherford, even in its final format, on 9 May 2010 still reflected a range of possibilities but had come down to a definitive conclusion that the cause of death originally given by Dr White was not justified on the pathological evidence or clinical history and that: A more reasonable cause of death might be sudden unexpected death in epilepsy or post traumatic epilepsy or simply epilepsy. ... [39] Coroner Devonport in his findings noted that at his request, Dr White had revisited her initial post mortem report and "reviewed documents and information unavailable to her at the time of completing the autopsy report". This information clearly included the letter from Dr Masterton in July 1988 previously referred to and raising the issue of poor compliance with epileptic controlling medications plus more recent information from Mr White's daughters about epileptic seizures only a month or so prior to death and in particular from his widow that "Mr White had seizures until he died including two seizures close to his death" [40] While this Court does not have a copy of the amended report of Dr White sufficient can be gleaned from Coroner Devonport's findings as to some of the factors that Dr White identified that were either unknown to her at the time of the original autopsy or could be seen in a different light. These included Dr White commenting that: Individuals with epilepsy can die of seizure related deaths such as status epilepticus or sudden unexpected death in epilepsy (SUDEP). Risk factors for SUDEP include poor compliance of medications, poorly controlled epilepsy, alcoholism and male gender. That it is thought the mechanism of death and SUDEP is due to cardiac arrhythmia and/or apnea. That right ventricular changes may have conceivably occurred during a seizure particularly if it was prolonged. That cirrhotic nodules within the liver could not be inferred as due to alcohol as there was no history of chronic alcohol abuse and thus no evidence for alcohol withdrawal as a cause of seizures. However cirrhosis can result in prolongation of the QT interval on the electrocardiogram which can occasionally be associated with cardiac arrhythmia. [41] Coroner Devonport, after weighing up Dr White's revised comments and the range of opinion, opted for a conclusion closest to the first possibility opined by Dr Rutherford of "sudden unexpected death in epilepsy" and not the other two options with more direct implications of a causal link. In particular that Dr White 'considered it reasonable to amend the cause of death to sudden death in a 52 year old man with epilepsy". He did he mention SUDEP. Nor it seems did Dr White. Another way of considering the matter is that there was underlying ischaemic heart disease and that the deceased had epilepsy, or as he put it "with epilepsy". It is not dissimilar to the concept of sudden unexpected death in infancy (SUDI) i.e. it is not actually saying that a specific pathological condition definitely caused death, but is a diagnosis of exclusion because no other explanation can be found, and importantly Dr White on reflection was prepared to label it that way Ie "with epilepsy" [42] In the bundle of documents tabled by the appellant there are literature extracts which have not been commented on by any of the Pathologists and I am unsure when or if they were furnished to the Respondent. One article is entitled "sudden unexplained death in epilepsy: what coroners and medical examiners aren't saying". The context is clearly American. Key extracts from it include: Traditionally a controversial topic discussed primarily by the neurological community, sudden unexplained death in epilepsy (SUDEP) is now emerging more frequently in research literature adding weight and validity to this one questionable entity. However the forensic science field has quite a way to go before it both recognises and utilises SUDEP as a final post mortem diagnosis in cases where it is appropriate. According to the Chief Medical Examiner it is stated in New Mexico ... forensic pathologists are well versed in using epilepsy as a cause of death. They are not however used to using the term SUDEP. It's really more of a terminology thing that just hasn't caught on ... medical examiners are trained to look at the underlying cause of death and are more likely to use the diagnosis of idiopathic seizure disorder than a term that implies uncertainty of cause. In the case of sudden infant death syndrome (SIDS) for example there has been a lot of controversy amongst pathologists who feel that if the cause of the syndrome is unexplained or undetermined then why not write down undetermined versus writing down SIDS as the final post mortem diagnosis. [43] Another article is from a December 2004 edition of the Lancet including: Patients with epilepsy are at risk of sudden unexpected death. Neurogenic cardiac arrhythmias have been postulated as a cause. Clinical characteristics of patients with peri-ictl cardiac abnormalities are closely similar to those at greater risk of sudden unexpected death in epilepsy. Asystole might underlie many of these deaths which would have important implications for the investigation of similar patients. [44] While there is not very much that the Court can take from those articles as they have not been addressed so far as I am aware, by any of the experts involved in this case, what they do illustrate is that SUDEP was at least around 2004 still a somewhat evolving concept where, like SIDS or SUDI there is room for dispute amongst experts. [45] Regardless of that the respondent was prepared to accept a diagnosis of SUDEP. [46] In my view it is unrealistic, to conclude that it was inappropriate for the respondent to wait until the final and second Coroner's decision was available. In fact it seems the respondent acted quite promptly and was prepared in light of the later developments to accept cover backdated to the time of death, but in my view it was quite appropriate to not accept responsibility for interest from death but interest from the time of that finding. To do otherwise would in effect endorse the concept of the respondent second guessing the coronial system, which is the appropriate venue for determining cause of death. 47] While it is inappropriate for this Court to second guess the decision of the respondent to accept a diagnosis of SUDEP and acceptance of a causative link between the accident leading to epilepsy leading to death, the only prudent and appropriate course of action for the respondent was to await the outcome of the Coroner enquiries. While it is superficially attractive to, with the benefit of hindsight, say that the respondent, knowing now what Dr Rutherford's evolving views would be and then Dr White's amended opinion followed by the coroner's determination, should accept that at some point earlier than that, it had the "necessary information" if only it knew what was coming later, that is unrealistic as a basis for saying that it had the necessary information at any stage prior to Coroner Devonport's final findings. 48] As was noted in Barnett v ACC High Court Auckland AP64-SWO2 "the issue of whether there is all information necessary depends on the facts of each case and it is not necessarily the same date as the date of the start of the relevant entitlement. In my view the key "fact" was the final Coroner finding. Up until then the picture was not sufficiently clear. Arguably it did not necessarily follow from the Coroner's determination of death "with epilepsy" that SUDEP was accepted as the appropriate label nor that it necessarily meant that there was sufficient causal link with the original accident but the Respondent did not pursue that point and paid out backdated entitlements. It does not follow that the interest should be similarly backdated. While in hindsight the respondent had a lot of information from various (sometimes contradictory) sources it was not until Coroner Devonport's findings that it could be seen to have "all" information necessary. [49] Accordingly the appeal is dismissed. There is no issue as to costs. Judge A N Maclean District Court Judge Solicitors: Medico Law, Auckland, for the respondent ACR 359-15 White