Robinson v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 230/2003 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN GRAHAM VICTOR CHARLES ROBINSON of Kamo Appellant (Appeal No. AI 62/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 23 July 2003 APPEARANCES/COUNSEL John Robinson appeared as advocate for appellant F. Becroft for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue is whether or not a review decision dated 4 December 2002 dismissing the appellant’s application for cover for a mental injury was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/230- 2003.doc AE Narrative [2] The appellant was born on 12 January 1948. [3] The appellant has cover for a knee injury sustained on 21 January 1983. [4] He received weekly compensation and other entitlements in respect of that injury for a period, and then returned to work. At that time he was employed by the Whangarei Fire Service, and also operated his own farm. [5] The appellant sustained a calf injury on 23 March 1986, for which he was also granted cover. [6] After this injury, the appellant was discharged from his duties with the Fire Service, and was limited in the duties he was able to perform farming. [7] Documents subsequently obtained by the respondent reveal that the Fire Service decision to discharge the appellant was made because of a combination of physical problems. [8] In April 1987, the appellant again applied for earnings related compensation. He continued to work on his farm in a limited capacity. [9] Medical certificates provided by his general practitioner indicated that the appellant’s incapacity resulted from his injury on 23 March 1986. Earnings related compensation was calculated and paid. [10] The respondent obtained a medical report from Mr Baylis, orthopaedic surgeon, dated 9 May 1998, who noted that the calf injury had resolved. The Corporation continued paying weekly compensation, but transferred those payments to the original knee injury file. [11] On 25 May 1998, the Corporation wrote to the appellant noting that he was required to provide ongoing certification of his incapacity. The letter advised that the present certification had expired, and requested an updated medical certificate. A retrospective medical certificate was provided in July 1998. The Corporation accepted that certificate. 230-2003 2 [12] On 30 September 1998, the Corporation wrote to the appellant and reminded him that his medical certificate would soon expire. [13] On 1 November 1998, the Corporation advised the appellant in writing that his medical certification had expired. [14] The appellant did not respond to the respondent’s reminders, and the file was ultimately closed. [15] In July 1992, a file note dated 21 July 1992 indicates that the appellant came into the branch office stating that he wanted to go back on earnings related compensation. He also indicated he would like to be re-assessed for lump sum entitlement. An appointment was arranged for an up-to-date medical assessment, but the appellant failed to attend, and there was no further contact from him. The file was again closed. [16] In May 1993, the appellant suffered an injury to his right knee in a motor vehicle accident. He filed a claim for weekly compensation, and this was paid for a short period of time. [17] On 15 September 1998, the appellant’s solicitor wrote to the respondent making a number of enquiries about the appellant’s various claims. [18] The appellant subsequently provided a medical certificate from Dr Ford dated 7 January 1999 indicating that because of his left knee injury, he was only capable of light duties for the following thirteen weeks. [19] On 10 February 1999, the Corporation issued a decision declining to pay weekly compensation to the appellant on the ground that he was not an earner immediately before the commencement of the latest period of incapacity. [20] That decision was upheld by a reviewer, and subsequently ratified by the District Court in a decision of Beattie DCJ dated 26 September 2000. [21] The respondent subsequently began paying weekly compensation to the appellant on the basis of his shoulder/back injury that occurred on 1 April 1998. 230-2003 3 [22] However, that injury was subsequently revoked, and that revocation of cover was upheld by the District Court in a decision dated 18 June 1999 by Middleton DCJ. [23] On 4 March 1999, the appellant lodged a claim for cover in relation to a neck/back injury claimed to have been sustained on 4 May 1987 when he ran into a tree. [24] The claim was accepted on 12 October 1999. [25] The respondent recommended payment of weekly compensation on the basis that the injury of May 1998 had been a recurrence of the May 1987 injury. [26] The appellant applied for back dated weekly compensation in respect of his neck injury, producing retrospective medical certification dated 10 November 1999 covering the period since 25 April 1987. The last certificate was for the 90 days following 25 November 1999. [27] On 24 December 1999, the Corporation issued a decision declining to pay weekly compensation for the period covered by the above medical certificates. [28] The appellant unsuccessfully applied for a review of that decision, and that review decision was upheld by Barber DCJ in a decision dated 16 February 2001. [29] The appellant continued to approach the respondent as to it making a primary decision to revisit his claim for arrears of compensation running from 1988. [30] In or about February 2001, the respondent obtained a number of further documents from the New Zealand Fire Service. These documents recorded doubts by the Fire Service officers as to the appellant’s fitness. In particular, the officers had concern that the appellant’s knee injury might let him down in a critical moment. [31] On 23 February 2001, the respondent issued a decision accepting that the appellant was incapacitated following his discharge from the Fire Service. This specifically referred to the new documents obtained from the Fire Service. [32] The respondent then calculated the appellant’s entitlements to arrears in weekly compensation in a gross amount of approximately $350,000. 230-2003 4 [33] There is an ongoing dispute as to interest on the arrears of weekly compensation. [34] In the past four years the appellant has also made two claims for mental injury, which have both been declined and appeals were not pursued. These claims were lodged individually, and did not refer to a physical injury. [35] A further claim in respect to mental injury was lodged in August 2002. In respect to this latest claim, the respondent made a primary decision in writing on 12 August 2002, rejecting it. The primary decision was to the effect that the claim was for an injury sustained on 5 August 2002, and that the respondent had considered all the information, but found there was no evidence of any physical injury as a result of an accident, and therefore the claim was declined. Medical Reports [36] On 16 September 1999, Dr Ford, the appellant’s general practitioner, completed a letter to the respondent advising that the appellant was suffering from stress and depression, which was likely to be as a result of “the fact that his claims on the ACC have not reached any conclusion”. [37] This letter specifically says that the doctor had been seeing the appellant at intervals over the last ten years. Recently, he had become dispirited, and at times one could call him depressed. He felt that the cause of his stress, and the doctor agreed, was the fact that his claims on the ACC had not reached any conclusion. His relationship had broken up, and he attributed the break up to these problems as well. [38] Dr Monash, occupational specialist, completed a report on 2 December 1999. He noted that the appellant had not been working since 1998. He had pain in many parts of his body, which was increasing in severity. He was living alone, as his partner had left some time ago. He ate poorly and he had a moderate alcohol intake. He had suicidal ideation, which resulted in police involvement. The appellant described his predominant feeling as gloom and despair from various losses over the last many years, and he was involved in a legal struggle with the ACC. [39] Dr Monash said the appellant agreed that his greatest impediment to work currently was his mental condition. It was felt closure of litigation would speed up the resolution of the current depression. 230-2003 5 The Reports of Dr McCallum [40] Dr McCallum reported on 12 April 2000, he was a consultant in psychological medicine. [41] He noted at the interview that the appellant was fully alert, entirely appropriate and co-operative in manner, and he strenuously endeavoured to explain what were now a very complicated set of circumstances in a medico-legal sense. He was expressing matters of concern, disenchantment, misfortune and frustration from a run of accident injuries over fifteen years (at least). The appellant felt that he had given up, which was exemplified by his ultimately selling his property two and a half weeks earlier from the interview, below valuation. [42] He thought that he had experienced depression on and off since 1983. He was not depressed all the time. He considered that this was a frustration reaction from his bureaucratic negotiations with the respondent. [43] Dr McCallum concluded that the appellant had endured a series of injuries by accident which had gradually led to various loss experiences over a period of time from 1983 down to 2000. He said: “Clinically, if a person experiencing that sequence did not have depression, one might ask “why not”? Mr Robinson acknowledges his determination and independence (not to suggest “gallantry and pride”) have induced him to battle to overcome perceived disabilities. ... Mr Robinson perceived his present dealings with ACC as a battle. He considers the bureaucracy is confused in its documents, and this serves to confuse and frustrate him. … The perpetuating stressor to his mood disorder is the accident compensation ‘struggle’. NB: It might be fairly concluded that but for the injuries by accident more properly documented elsewhere, this man would not be in his present predicament, and would be unlikely to seek or require the services of a psychiatrist. … Mr Robinson has endured a series of injuries by accident, with devastating psychosocial consequences, in what has been deemed a ‘no-fault, entitlement system’. There should not be fights, struggles, or battles: they are injurious 230-2003 6 (counter-therapeutic) to your efforts to assist him in regaining health and function.” [44] On 14 August 2000, Dr McCallum wrote to The Honourable Ruth Dyson, Member of Parliament, Associate Minister for Accident Insurance, and in this letter, on behalf of Mr Robinson, he said: “He reports (inter alia) material (which I believe he has conveyed to your office) which continues to frustrate and eventually infuriate. These factors risk deterioration in health and consequent desperate outcomes. … Prolonging uncertainty perpetuates anxiety which is detrimental to health. Mr Robinson has perceived an ongoing lack of sensitivity and humaneness through ACC offices. His health is certainly not improved upon when he first consulted me. He is progressively intensely preoccupied with the negotiations.” [45] In a further medical report dated 5 November 2002, Dr McCallum further said: “Mr Robinson consulted me further on 11 August 2000, following which I forwarded a statement to the Associate Minister for Accident Insurances on 14 August 2000. This explained that clinically Mr Robinson continued with distress and disability through post-accident bodily pains and limitations and the clinically significant mental injury (DysthymicDisorder) suffered as a consequence of the physical (personal) injuries suffered by accident. I noted in that report that a result of the mental injury was a progressively intense preoccupation with negotiations with the Accident Compensation Corporation, which negotiations were perceived by Mr Robinson as lacking in sensitivity, understanding, and humaneness, all of which frustrations were contributory to ongoing disorder: a most unsatisfactory state of affairs, through an agency supposed to ostensibly assist victims of accident(s). … [46] In his conclusion Dr McCallum said: “2. Such disorder is a Significant psychological dysfunction, in the form of mental injury suffered because of the physical injuries suffered by accident (see the above reported series from 1983).” [47] At the hearing, for the appellant a background list of injuries was produced starting with a fracture of the foot on 8 December 1979 down to a soft tissue injury of the lower back/spine of 20 July 2002. [48] It was submitted by the appellant that these injuries had culminated in the mental injury which is shown on the list as at the date 5 August 2002. 230-2003 7 The Review Hearing [49] The reviewer noted that through the medical certificate of Dr Ford on 5 August 2002, the claim was for long term stress as a result of fighting with the respondent over his various cases. The reviewer concluded having regard to this letter that the claim concerned the stress from fighting with the respondent. [50] The gist of the review decision is as follows: “There is no doubt that a mental injury from such a cause cannot be covered. To obtain cover for mental injury, the mental injury must be ‘because of’ a physical injury, as s.26(1)(c) states. There must be a direct causal relationship between the mental injury and the physical injuries that are covered. But Mr Robinson’s claim and ACC’s decision on it, and the application for review itself, were not about that – they were for and about a mental injury not as a result of Mr Graham Robinson’s physical injuries but as a result of his fighting ACC. That was in fact recognised by Mr John Robinson acting as his advocate at the hearing, where the claim was in effect changed to a claim for mental injury arising from Mr Graham Robinson’s physical injuries. However my jurisdiction extends only to the claim for stress from fighting with ACC over his case and ACC’s decision on that claim. Because an injury from that cause cannot be covered, Mr Robinson’s application for review, of ACC’s decision dated 12 August 2002, declining his claim of 5 August 2002, is dismissed.” The Legislation [51] Section 26(1)(c) of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 provides cover for: “Mental injury suffered by a person because of physical injuries suffered by the person.” [52] That is, the mental injury suffered is because of physical injury suffered by the person affected. Conclusion [53] The application for review is based on a primary decision advised in writing made on 5 August 2002. This decision was in respect to an alleged injury sustained 230-2003 8 on that date. The decision declined the claim on the basis there was no evidence of a physical injury sustained as a result of an accident, and accordingly cover was denied. [54] The reviewer noted that on 6 August 2002, Dr Ford lodged a claim for an injury from an accident on 5 August 2002, and the injury was described as long term stress as a result of Mr Robinson’s fighting with the respondent over his case. [55] On 12 August 2002, the respondent wrote the primary decision letter declining the claim. [56] The advocate for the appellant argues that the mental condition of the appellant as at that date, arises because of the stress caused by the conduct of the respondent in dealing with his claims over the years arising from particular accidents. [57] Section 29(1)(c) of the Accident Insurance Act 1998 gave cover for mental injury suffered by an insured because of physical injuries suffered by the insured. Section 4 of the Accident Rehabilitation and Compensation Insurance Act 1992 provided the statutory test of causation, of any mental injury suffered by a person which was the outcome of physical injuries to the person. Section 21(c) of the present Act is couched in similar terms. [58] In all three statutes the appellant has the burden of proof on a balance of probabilities, of showing that on the facts of the case, there was a causal relationship between the physical injury suffered with the mental injury that is now alleged as its outcome. There has to be a direct causal link between a physical injury and the mental condition alleged. An indirect link is not sufficient. [59] In Robertson v Attorney-General (Palmerston North, High Court, CP 16/01, 12 August 2002) Gendall J noted in respect of the 1992 legislation, that there could be cases of “indirect personal injury”, which were less than an “outcome” as predicated by s.8 of that Act. Those situations would create an anomalous situation of a person having neither a remedy under the Act or at common law. Support for the principle of distinguishing direct from indirect causation is found in Causation in the Law, (2nd Edn), Hart & Honore at pp. 114 to 122. 230-2003 9 [60] This type of filter in respect to mental injury is not unknown to the law. Indeed, the common law initially expressed a view that psychiatric or mental injury could not be treated on the same lines as external injuries from physical impact. See Victorian Railway v Coultas (1888) 13 App Cas 222 at 226. There was a categorical refusal at common law initially to permit recovery for mental injury, unaccompanied by objective and substantially harmful physical consequences. See The Law of Torts, (9th Edn) J.G. Fleming, p.173. [61] The statutory filters concerning causation in the 1992, 1998 and 2001 legislation follow a similar path. What is required is a careful analysis of the accidental physical injury alleged, along with materials that causally link any mental condition directly to that physical injury. In the present case, there is no such evidence. [62] In his review application dated 2 September 2002, the appellant gives the reasons for his application as follows: “Basically ACC has spent the last sixteen years ignoring their file information on me. For the last four and a half years they have totally mismanaged my claims, they have neither disclosed information to myself, my counsel or the other Courts. The results being they have mentally ‘broken’ me. My personal life is ruined, I rely heavily on anti-depressants, myself and my family have been subjected to defamation in our local newspaper and I am now being forced into a rehab role I cannot handle. The non-disclosure of the file information and the total mismanagement of claims historical and current has led to this. In the words of an examiner ‘if it were not for injury I would not be in this position’. If ACC so awfully neglects their responsibilities towards the claimant in regards to injury then they have clearly aggravated and injured the claimant’s mental state because of injury.” [63] It is noted at the review hearing the reviewer comments that the substance of the arguments put before him were that the mental injury arose not as a result of the appellant’s physical injuries, but as a result of his fighting ACC. That was in fact recognised by the appellant’s advocate at the hearing, when a claim was in effect changed to a claim for mental injury arising from physical injuries. [64] After having carefully considered the psychiatric reports produced by Dr McCallum, I am of the view that the psychiatric opinion is not based on mental 230-2003 10 consequences arising directly from physical injuries, but rather are mental injuries alleged to have arisen indirectly from the handling of his various claims. [65] In my view, that type of indirect injury does not fall within the scope of cover provided for under the present legislation. [66] Accordingly, for the reasons that I have given, I would dismiss the appeal. I make no order as to costs. DATED at WELLINGTON this …17th … day of ……September…….. 2003 (J. Cadenhead) District Court Judge 230-2003 11