Tai-Rakena v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. | 30/95 HELD AT ROTORUA IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 19-95- 0135 BETWEEN ESTATE PAUL TAI-RAKENA Appellant (Appeal No. DCA 137/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of October 1995 APPEARANCES Ms de Jonge advocate for appellant Mr T P Cleary for respondent DECISION OF JUDGE D A ONGLEY The question in this appeal is whether the injury suffered by the deceased claimant was caused by accident or was a spontaneous occurrence. Mr Tai-Rakena died on 27 August 1995. An appeal had been filed on 20 June 1995 against a review decision given on 6 June 1995. The appeal was continued by Mr Tai- Rakena's widow. An order is now made substituting Mrs Tai-Rakena as the appellant. Mr Tai-Rakena developed severe back pain while driving his wife to work early on the morning of 29 September 1992. He later attributed the onset of symptoms to a fall that he had the previous night. When he experienced the pain he went straight to Victoria Street Medical Centre. Arising out of his treatment at the medical centre he claimed that he suffered a further accident by a fall or by virtue of medical misadventure as well. There was therefore more than one basis on which his claim of personal injury by accident had to be considered. Whatever the cause may have been, he suffered an acute - 2. haemorrhage into the spinal cord resulting in paraplegicer removal of the blood clot did not improve the condition. Mr Tai-Rakena was diabetic and ... In April 1993 the Corporation accepted a claim for cover and provided assistance. In the advice of claim form the cause of the injury was expressed as follows: "Back pain while driving wife to work. Arrive at A & E centre. Slip off Wh/Ch on to the floor. Later slip off toilet on to floor. Crawl to door. Injection in leg went paraplegic." In April 1994 the Corporation's medical officer formed the opinion that the condition was not accident related. The claimant provided a written account of relevant events but did not mention the alleged fall on the evening before the onset of pain. Instead, he took up the issue of negligent treatment and the Corporation asked for a report from Dr Ewen who had treated him at the medical centre. Dr Ewen reported his understanding of the indications discovered in exploratory surgery which took place on 30 September 1992. He said "the impression was that Paul had suffered a spontaneous extradural haematoma which is an apparently rare condition and in Paul's case no underlying cause was identified". He concluded that he was not able to prove or disprove the claim that paraplegic was related to alleged negligent treatment. Dr O'Sullivan of the medical centre supplied his clinical notes and said in a written report that he was unable to confirm that Mr Tai-Rakena fell at the centre, but he did recall that he and a nurse assisted Mr Tai-Rakena to the toilet and waited outside the toilet door. He said that he did not recall Mr Tai-Rakena calling out but that he did crawl out of the toilet, then when offered assistance he declined it. The issue of accident in one form or another at the medical centre was referred to the Corporation's medical misadventure committee which reported that it found no evidence that medical error occurred. The committee found no evidence to support a claim that the paraplegic could be attributed to any treatment or lack of treatment from Dr O'Sullivan or his support staff at the centre and they noted that Mr Tai-Rakena's paraplegic has been attributed to a spontaneous extradural haematoma. The committee commented that it appears from Dr O'Sullivan's and Mr Tai-Rakena's account of events that he slipped onto the floor of his own accord to alleviate pain, and that was not a result of any lack of care. On 6 December 1994 Mr Tai-Rakena's advocate discussed the claim and informed the Corporation that when trying to understand the cause of the haemorrhage the family had recalled that on the night before the symptoms appeared Mr Tai-Rakena had tripped over a septic tank outlet on the lawn and had fallen heavily on his back. He had been helped up and shortly afterwards had fallen asleep on a couch until he awoke at about 5.30 am and then drove his wife to Hamilton. It was during that drive that the symptoms began. They said they did not mention that incident initially because the doctor's questions appeared to be directed at the possibility of an accident in the car and they had been asked to write down what happened that morning. The Corporation conveyed that explanation to Mr Howie, spinal surgeon at Auckland Surgical Centre and asked Mr Howie whether an accident that night could have contributed to the problem. Mr Howie reported on 2 March 1995: - 3 - "This is a review of the literature of Spontaneous Spinal Epidural Hematoma of which about 250 cases have been reported, thus making it a rare condition. In 40% of cases there is no identifiable cause of the bleeding but in others a variety of conditions have been identified. In particular, coagulation disorders and hypertension. There does not appear to be any specific association with diabetes mellitus. Your letter of 16.12.94 outlines the sequence of events including a fall over an underground septic tank on 28.9.92. While driving the next morning he developed severe pain in his lower back. While he was in the A & E Department there was a possible further fall from a wheelchair and some problem with undressing but neither of these events would I regard as contributing to the problem. I note that he did have microscopic haematuria which may suggest a possible underlying bleeding disorder. the patient was not on anti-coagulant therapy. I think there is little doubt that the patient has had a spontaneous epidural hematoma which cannot be held due to personal injury by accident and I would not regard his subsequent management and possible mistreatment, i.e. being asked to undress as contributing to this process." A decision declining the claim was notified by a letter of 10 March 1995 and the decision was the subject of the review which led to this appeal. The Review Officer found no contradictory medical evidence and inevitably she confirmed the Corporation's decision. The Corporation's district medical advisor, Dr M Macdonald considered that the chances of a spontaneous haematoma in an uncontrolled diabetic were higher than in the general population. Mr Tai-Rakena was diabetic and had elected to cease treatment for his diabetes. I accept Mr Cleary's submission that proof of a causual link between an injury and ongoing symptoms must very largely be determined by medical evidence; Texiera v ACC (Appeal Authority 28/91). In addition the Corporation may be prejudiced by the delay in reporting the fall over two years after it is alleged to have happened. No local tenderness was evident on examination, indicating that the claim that Mr Tai-Rakena had fallen was not corroborated by medical examination at the time. The claim was not even lodged until six months after the event. Even taking those matters into account, I think that the appellant's claim should not be lightly discounted because there was no immediate enquiry directed to an event the previous night and the appellant and her husband focused on the possibility of shortcomings in medical treatment because Mr Tai-Rakena was allowed to move around before the seriousness of his condition became evident, and the paralysis worsened after he was given an injection of Voltaren at the medical centre. In other words the significance of the fall, if there was one, receded into the background. Once the claim was accepted the fall was of no relevance, it was only when the claim was declined, some 18 months after the event that the question of causation again became important. It has to be said that at that stage the fall was not mentioned for a further period of seven or eight months when the advocate brought it up in discussion with the Corporation. On the present evidence there is no ground for the Review Officer's finding to be reversed. But I am concerned that, if the fall happened, then the occurrence of a spontaneous haematoma some seven hours or so later is such an extraordinary co- incidence that it is not at all surprising that the appellant cannot accept that it was not - 4 - linked to the fall. An opportunity should have been taken to seek a further specialist opinion. The Corporation was satisfied from the combined opinions of its own medical officer and of Mr Howie that there was no need to seek further advice. I disagree. In the particular circumstances a further opinion should be sought, necessarily based on the notes and other records, and taking account of the claim that Mr Tai-Rakena fell onto his back. The appellant has made some attempt herself to obtain an opinion and has met with difficulties or rebuffs. That may be because she could not make an appropriate kind of approach in a matter which is highly specialised and is the subject of active litigation. Therefore the appeal is adjourned for the Corporation to obtain a further specialist report to consider two questions: 1. The likelihood of the extradural haematoma suffered by the deceased having been caused by a fall when the deceased tripped and fell onto his back about seven hours before the onset of symptoms. 2. The likelihood of the paralysis having been caused when the deceased, having suffered a spontaneous haematoma, was permitted to move from a wheelchair to the floor or from the toilet to the floor thereby aggravating a condition which might not itself have caused paralysis. The second question is included for completeness because it is an issue that the appellant wanted to address quite separately from the question of haematoma caused by a fall the previous night. The respondent should supply the appellant with a list of specialists capable of assessing the question in order for the appellant to select a specialist from the list. The respondent should then furnish the specialist with a copy of this decision and any other material that both parties can agree on, but the specialist should not be provided with material at the instance of one party only. Both parties have leave to apply for directions and the appeal will be set down again on the application of either party. DATED at WELLINGTON this 6 th day of November 1995 D A Ongley District Court Judge