Estate of Taua v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 19 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 402/10) BETWEEN ESTATE OF MOANA TAUA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Appearances: No appearance for appellant Mr R Cahn for respondent Judgment: 20 January 2012 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal is brought by Eugenia Lavea on behalf of the Estate of her late mother. In the circumstances no question is raised concerning the right of representation of the deceased estate, or whether the claim is representative or in a personal capacity as a dependent with rights under the legislation. For convenience, Ms Lavea is referred to as the appellant. [2] The appeal was called before me for directions on 1 September 2011. The appellant is living in Australia and did not appear. The immediate problem has been that the appellant has not been able to appear on dates set down for hearing of the appeal. The respondent sought a direction that the appeal should be heard on the papers without an oral hearing. [3] The appeal concerns the death of the appellant's mother, Moana Taua, in 1977. The death certificate recorded viral encephalitis diagnosed about six months after being injured in a motor accident. The appellant applied for cover for accidental death on 9 February 2010. The Corporation declined cover on the ground that Mrs Taua's death was caused by a virus which was not associated with an injury by accident. On review in June 2010, the Reviewer was unable to find medical evidence of a causal link between the accident injury and the viral condition [4] Directions were issued in order to advance the hearing of the appeal. The appeal was filed in June 2010. The Registry offered a hearing in Auckland in November 2010. After an exchange of emails, the appellant agreed to a hearing in Wellington, but would have liked the appeal to be set down in late December when she had annual leave due. The Registry could not allocate a date in late December and the appellant then requested a date in January or February 2011. [5] The Registrar offered to set down the appeal in March 2011 but the appellant emailed on 11 March to say that she had just returned from New Zealand to Australia and asked for the hearing to be postponed to June or July. No hearing date was available in June or July and the Registry notified the appellant of a hearing date on 1 September 2011. The appellant replied that the date would be suitable, but she would communicate if there needed to be a change. On 16 August she requested a change to some time in November 2011. She explained that the reason for requesting further time was that she was living in Australia and needed to engage a lawyer. [6] It appeared that the appellant was not actively prosecuting the appeal. She did not accept a number of hearing dates and indicated a wish engage a lawyer 14 months after filing the appeal. [7] On 2 September 2011 I directed that the appeal should be heard on the papers and allowed 28 days for the appellant to apply in relation to further evidence or submissions, and if necessary to apply for an extension of time. There has been no response to those directions. The evidence [8] In her notice of appeal, the appellant referred to medical notes dated 24 January 1977, on Mrs Taua's admission to Auckland Hospital, which recorded an impression of a right side cerebral lesion as a cause of her seizure disorder, with differential diagnoses of a tumor, AV malformation, or subdural trauma from a motor accident. [9] The notes recorded that the patient was aged 26 and had been involved in a motor accident in July, which must have been July 1976. The appellant's case is that there was a probable subdural injury resulting from the motor accident. However on 28 January 1977 the notes recorded a diagnosis of "viral encephalitis (type unknown) by far most likely". That remained the provisional diagnosis until the last record produced, on 16 February 1977. [10] The Court is informed that Mrs Taua remained in Greenlane Hospital until she died on 17 February 1977. The post-mortem, carried out on 18 February 1977 by Dr Smeeton recorded the cause of death as being "encephalitis (viral type unknown) and congested oedematous lungs (respiratory effect) ". The clinical summary (according to the respondent's submissions) stated: "The patient was admitted with a history of generalised seizures. Clinical findings and subsequent investigation suggested a viral encephalitis. A tight temporal lobe biopsy was performed. The histology was suggestive of a viral encephalitis, although no inclusion lobes were apparent. Viral studies were unhelpful. She required massive doses of phenobarbitald required respiration and subsequently a tracheotomy. She died on the 17th of February 1977 from respiratory complications." [11] The respondent's submissions state that Ms Taua's death certificate recorded the cause of death as "viral encephalitis 4 weeks". Copies of the post mortem report and death certificate have not been produced. The respondent's written submissions were filed in March 2011 and the appellant has not disputed the reference to those documents. As the appellant has not disputed the point nor taken up the opportunity to make any further submissions, it is reasonable to assume that the reference to those documents is correct. [12] In her written submissions, Mrs Lavea quoted extracts from the EEG reports that tended to find no epileptic activity to explain Mrs Taua's repeated seizures. Mrs Lavea submitted: "Moana Taua, didn't die immediately as showed on the medical records, the accident happened in July 1976, her illness and the virus gradually developed and started from when she had the car accident and was not discovered by anyone until she became unconscious and admitted to the hospital 24/01/1977. There has been a physical injury occurred and was an actual damage to the body from the car accident which is clearly states on the medical records." [13] In fact, only an initial provisional diagnosis mentioned subdural trauma from a motor accident. That was overtaken by a probable diagnosis of viral encephalitis. The true diagnosis remained uncertain, but the medical records clearly favoured viral encephalitis. There is no suggestion that viral encephalitis could have been caused by accident trauma. Such an argument would require expert medical support, which is lacking in this case. [14] To succeed in this appeal, the appellant would at least have to be able to refer to a qualified medical opinion that the injury by accident probably caused the condition from which Mrs Taua died. A Court cannot interpret hospital notes and draw medical conclusions. That can only be done by a suitably qualified medical practitioner. The process for an appeal does not authorise the Court to conduct an investigation. Ultimately the appellant must present evidence to show that the Corporation's decision was wrong. [15] In my directions of 2 September 2011, those problems with the appeal were outlined to assist the appellant in assessing whether she could strengthen her case, or otherwise to consider whether the appeal would probably not succeed. [16] The appeal cannot possibly succeed on the evidence that has been presented. In the course of intensive treatment, the doctors adopted a probable diagnosis of viral encephalitis. That was supported by observations and by histology. The notes do not record anything that came to light to weaken that diagnosis. The obvious implication was that a cause related to accident trauma was rejected or considered to be unlikely. [17] For those reasons the appeal is dismissed. Judge D A Ongley District Court Judge