Stanley v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2011] NZACC 269 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN HARRY WINSTON STANLEY (ACR 121/10) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 22 August 2011 APPEARANCES Mr J Cox, Counsel for Appellant. Mr D Tui, Counsel for Respondent RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from two decisions of the respondent dated 16 February 2009 and 25 February 2009 respectively, whereby the respondent declined to grant cover to the appellant for a total of five medical conditions for which cover had been claimed as treatment injuries suffered by the appellant. [2] The five medical conditions with which the Court is concerned in this appeal are: 1. Sexual dysfunction; 2. Abdominal hernia 3. Carpal Tunnel Syndrome; 4. Accelerated degenerative arthritis; 5. Morbid obesity; [3] It is the claim of the appellant that all those medical conditions were caused as a consequence of him being prescribed a herbal remedy entitled Herbs Health, 2 Multistress Capsules, which capsules contained 1.6 mg of Betamethasone, a corticosteroid, and which capsules had been prescribed for the treatment of the appellant's pain and arthritis from gout. [4] It was the respondent's decision that none of the medical conditions for which cover was sought were conditions which had been caused by the appellant taking the herb capsule treatment. [5] For the record it should be noted that the respondent has in fact granted cover to the appellant for some medical conditions which it has accepted were caused by the herb capsule condition. [6] The background facts relevant to the issue in this appeal may be stated as follows: From a date which has not been objectively identified with certainty, which the appellant states was from about September 2002, but which in subsequent medical reports refers to a commencement date in 2003, the appellant commenced to take the capsule named Herbs Health, Multistress, as treatment for gout affecting his ankles and feet and at some point thereafter extending to his right wrist and hand. This treatment having been prescribed by a health professional, a duly qualified nurse. The appellant's ethnicity is Samoan and although born in New Zealand he lived most of his life in Samoa until 1999, at the age of 40 when he returned to New Zealand. . At the time of his return to New Zealand he was noted as suffering from a number of medical conditions, chief of which were Chronic Hepatitis C virus, gout, mild asthma and obesity. . In January 2005 the appellant presented to the New Zealand Men's Clinic with symptoms of erectile dysfunction and it was as a consequence of his examination at that establishment that he was referred on to the Endocrinology Clinic of the Auckland District Health Board, and it was on the advice of Louise Osborne, Endocrinologist, that the appellant ceased taking the herbal multistress capsule, which was one of a considerable number of supplements which the appellant was taking for various medical conditions. 3 The appellant was placed on hydrocortisone treatment which had a significantly less steroid content, but this hydrocortisone exacerbated the appellant's adrenal insufficiency. The appellant continued to receive treatment from various quarters and this led to the lodging of claims for cover on two occasions, in November 2008 from the appellant's GP, Dr Bulmer. . It is the case that the respondent was granted cover for several conditions in a decision dated 9 December 2008, and after further investigation on the other medical conditions sought to be covered the respondent determined that they could not be so covered and the two decisions now in issue were given in March 2009. The appellant sought a review of both decisions and a review hearing took place on 25 January 2010 at which both the respondent's primary decisions were considered. In a decision dated 2 February 2010, the Reviewer determined that there was no compelling evidence that any of the conditions for which the appellant was seeking cover was causally related to the treatment he had received and further, two of those conditions, namely Morbid Obesity and Sexual Dysfunction, did not constitute physical injuries. He therefore confirmed the respondent's primary decisions. [7] I propose to deal with the relevant evidence and factual circumstances of each of the medical conditions for which cover was sought individually. No.1 Sexual Dysfunction In a report dated 8 March 2005, Dr M Croxson, Endocrinologist, reported to the appellant's GP, Dr Bulmer, and stated, inter alia, as follows: Further to Dr Osborne's summary letter on Mr Stanley, we now have clear evidence that his presentation with low serum testosterone, reduced libido and particularly mild Cushing's syndrome with severe adrenal suppression, is caused by his taking of Herbs, Health Multistress capsules. MedSafe released an article published in the New Zealand Herald on 3 March concerning several risky herbal products and the Multistress is said to contain about 1.6 mg of betamethasone per capsule. I spoke with Harry today, 4 March, and he confirmed that he had been taking this preparation for 1 1/2 to 2 years, sometimes up to six capsules per day as often as 2-3 times per week as a treatment for his troublesome gout affecting many joints but more recently in his right wrist and hand. As earlier noted, it was the appellant's erectile dysfunction which ultimately caused him to seek treatment from the New Zealand Men's Clinic and he first attended there in January 2005. As part of his initiation the appellant was required to complete a form giving details of medical history and erection symptoms, and in that form there is the question: "How long ago did you first notice the problem?" To that the appellant circled the answer "3 years +" and next to it, in his handwriting, he wrote: "Several years". Letter to the appellant's case manager of 11 May 2009. Dr Paltridge of the New Zealand's Men's Clinic stated: "...my impression is high doses of steroids would significantly affect Harry's sex drive and could contribute markedly to his erectile dysfunction" There is also a note from the appellant's GP which stated that the effect of the steroids had caused erectile dysfunction. In a note from another Endocrinologist, Dr S Young, he stated, inter alia, as follows: Harry was found to have adrenal suppression in 2005 and this was diagnosed by the endocrine team at ADHB (Dr Croxson and registrar). The cause was found to be due to his use of a herbal remedy, which, unbeknownst to him, contained a potent steroid medication. He had been taking this medication for several years. This course of steroids resulted in a dramatic, more than 30 kg weight gain for Harry, on a background of pre-existing obesity. In addition, it caused suppression of his testosterone levels, libido and sexual function. It also affected his bone strength and was associated with him developing a severely depressed mood. The respondent's Medical Advisor at its Treatment Injury Centre, Dr Chris Moughan, when considering the appellant's claim in relation to sexual dysfunction, stated as follows: A physical injury as a cause of the sexual dysfunction is not identified. There are multiple possible causes of sexual dysfunction, which relate to alterations in bodily function and to physiological response - but not to physical injury. Physical injury is a primary requirement of the legislation for eligibility for cover as treatment injury. Low testosterone has been demonstrated in relation to the steroid ingestion. Hypogonadism resulting in low testosterone is an alteration in body function due to adrenal axis suppression in relation to ingestion of steroids. Loss of libido and sexual dysfunction represent physiological response to this. No physical injury is identified. No.2 Abdominal Hernia A claim for cover was lodged for this condition by Dr Bulmer, and in his letter relating to that claim, dated 31 December 2008, he simply lists it as one of the medical conditions in which he states: "An abdominal hernia (caused by the obese abdomen)". 5 It is the case that the appellant did suffer from an umbilical hernia and this was ultimately surgically treated by Dr R Fris in May 2005. In submissions to the Court, Counsel advised that cover had not been sought for this condition, but rather for an abdominal hernia, alternatively noted as diastisis recti which Counsel alleged had been caused by rapid weight gain to the stomach region starting in the latter part of 2005 and which had resulted from sudden steroid withdrawal. It was alleged that the truncal obesity had caused the appellant's abdominal wall to stretch. The Court has been referred to no other medical evidence relating to this condition. The comment on this claim made by Dr Moughan of the respondent's Treatment Injury Centre, was as follows: Abdominal Hernia. The claim relates to development of an abdominal hernia which occurred in relation to the excessive weight gain. I cannot find reference in the further information to the abdominal hernia. Abdominal hernia is a physical injury. Causation is multi-factorial, with obesity a contributor. How much of the underlying obesity contribute versus any contribution from steroid ingestion? Factors such as coughing, straining and lifting are commonly causal. Chronic obstructive lung disease (often associated with coughing) is described in operation note at repair of umbilical hernia (Mr Fris 27/05/05). Asthma is noted as a diagnosis in the GP records. It is unclear whether or not the abdominal hernia is at the site of previous umbilical hernia recurrent hernias (and new hernias with a propensity in relation to previous hernias are very common). Taking all factors into account causation on balance of probabilities in relation to the ingested steroids has not demonstrated. No.3 Carpal Tunnel Syndrome The only medical evidence which Counsel for the Appellant refers to for this condition is a comment in a report from Dr R A Stuart, Rheumatologist, who examined the appellant on 31 August 2005, and in the course of a two-page report on various conditions he identified, he stated: "He had some stiffness of his wrists and there was some crepitus in the region of the right acromioclavicular joint." (Collar bone.) It was Counsel's submission that stiffness of the wrists is consistent with carpal tunnel syndrome. In a report to the respondent, Dr Andrew Harrison, Rheumatologist, stated as follows: The current claim alleges that the claimant developed carpal tunnel syndrome as a result of corticosteroid ingestion. It is difficult to assess this as there is no documented evidence that the claimant has carpal tunnel syndrome. There is no record of when the symptoms developed or how they varied in relation to changes in his weight. 6 No.4 Accelerated degenerative arthritis In a report from Dr Stuart, Rheumatologist, to Dr Bulmer, dated 3 April 2009, he noted from his examination of the appellant as follows: There was slight tenderness of the small joints of his right hand. He had some crepitus in the AC joints. Both knees demonstrated mild tibiofemoral crepitus on flexion with normal ligamentous support and no notable tenderness. The right mid foot was stiff but not notably tender. He then stated further as follows: Over the course of his illness with gout he has suffered significant damage to joints and this is particularly evidence in the recent x-rays of his right foot. Degenerative change has occurred in his knees which relates to a number of factors including his weight and gout. Furthermore the adrenal suppression he suffered resulted in suppression of testosterone levels and had a negative impact on bone density. I think it is fairly reasonable that the deleterious effects of exogenous steroids be taken into account in his case with respect to subsequent negative outcomes. These include his escalated weight gain and his inability to lose that weight, the development of osteoporosis compounded by low testosterone levels and the negative impacts that his weight could have had on the development of osteoarthritis in weightbearing joints. Mr Cox also refers to x-ray and MRI scan reports taken in December 2008 and August 2009 respectively, which identify bilateral, relatively symmetric degenerative changes within the medial compartments of the knees. The comment made by Mr Harrison, Rheumatologist, on this issue stated as follows: The same considerations apply to the question of whether corticosteroid ingestion resulted in the development or acceleration of osteoarthritis. Obesity can be a risk factor for the development and progression of osteoarthritis. If the claimant's obesity were substantially attributable to use of corticosteroids a causal link could be considered. As stated above the link between steroid use and development of obesity has not been proven in this case and has been rejected by ACC.... In addition, the presence of erosions and effusions strongly suggests a role for inflammatory arthritis, i.e. gout, in the development of osteoarthritis in this case. No.5 Obesity From the notes of the appellant's GP relating to the appellant's weight, it can be noted that his weight was listed as follows: July 1999 118 kg August 1999 122 kg February 2000 137 kg June 2000 140 kg May 2001 144 kg August 2001 140 kg March 2002 144 kg Note of June 2002 "Obesity - bmi (body mass index) 43. 7 September 2002 146 kg April 2003 148 kg July 2003 150 kg September 2003 138 kg January 2004 147 kg July 2004 136 kg January 2005 135 kg Letter from Dr Richard Frith, Neurologist, dated 23 April 2002. This letter was in relation to the appellant's obstructive sleep Apnea. In that note, Dr Frith states: "He is aware of the need to lose weight". Letter dated 18 November 1999 from Dr Wong, Gastroenterologist, to appellant's GP, Dr Bulmer. Or Wong stated that one of the appellant's described medical problems was obesity and commented further as follows: His other problem is that he has put on considerable weight since returning to New Zealand. When he first got back he was 114 kg, he is now 131 kg. His height being 181 cm, giving a markedly elevated body mass index of 40. Report from Dr Reid, Infectious Diseases Physician, dated 26 April 2001 to appellant's GP. In discussing the range of health problems which the appellant presented, which included obesity, Dr Reid stated: "On examination he was very overweight at 143 kg (an increase of some 30 kg over the last year or so)." Report from Dr Hart, Physician, at Waitemata District Health Cardiology Service to appellant's GP dated 2 May 2001. Dr Hart noted the appellant suffered from central obesity and he further stated: I have told your patient that he has come to the crossroads. If he can modify his lifestyle factors that is, lose weight, stop smoking, have good blood pressure control and take regular physical activity, then his life expectancy should be the same as any other New Zealander. Report from Dr Frith, Neurologist, dated 23 April 2002 to appellant's GP. He stated, inter alia, as follows: 'His weight was 114 kg until three years ago but it has progressively increased, now to 142 kg." 8 Report from Dr K Whyte, Respiratory Physician, dated 29 April 2002, to appellant's GP. Dr Whyte was reporting in relation to the appellant's sleep Apnea, and he stated, inter alia, as follows: "He says he's always been overweight, but his weight has ballooned in the last 3-4 years since returning from Samoa and stopping smoking. He's increased from 114 kg to 142 kg." Report from Dr Fris dated 29 August 2004 to Dr Bulmer. Dr Fris was reporting about the appellant's umbilical hernia and he stated as follows: 'However , it is part of his morbidity as he is morbidly obese. He has a BMI of 41.6, but a relatively low fat percentage of 34.3 and a fat mass of 48.2 kgs. This would be in keeping with his Samoan heritage." Letter from Dr Stuart, Rheumatologist dated 3 April 2009 to Dr Bulmer. I saw Mr Stanley on 27.3.09. Since I saw him last he has been taken off prednisone and this was replaced with hydrocortisone with the dose of this gradually being weaned. He has succeeded in getting down to 5 mg daily. With that and careful attention to diet and exercise he has managed to trim his weight by 16 kg. He has had a major issue with weight gain which was exacerbated when he ed when he was placed on iatrogenic steroids. Despite careful attention to exercise and diet and even liposuction surgery he could not lose the weight whilst maintained on the prednisone. Report from Professor Carl Burgess to ACC dated 23 June 2009. He noted the record of weight gain prior to taking Betamethasone compound and he then stated as follows: This man has developed hypoadrenalism due to suppression of his pituitary axis by taking betamethasone for a prolonged period of time. Although this may have had a minor effect on his weight it is clear that this fluctuated during the time he was taking the complementary medicine (131-150 kg). At best it may have increased his weight by about 5%, but plainly diet and exercise had a more marked effect. DECISION [8] As the decisions under appeal are in fact five separate decisions relating to cover for alleged treatment injuries, I propose to deal with them individually and where relevant note any submissions made by counsel. [9] Personal injury is defined in section 26 of the Act as meaning a physical injury suffered by a person, and this Court has identified on many occasions that there must be evidence of a discrete injury which has caused physical harm to the body of the claimant. As I noted in an earlier decision of Jones (242/02): "Using the definition of physical injury in line with the natural and ordinary meaning, it must therefore involve physical damage or hurt, that is bodily harm or damage." 9 [10] The fact of the matter is that the appellant is seeking cover for treatment injuries, that is a personal injury claimed to have been suffered by the appellant as the result of treatment received from a health professional, and that the injury was caused by that treatment. Those are the principal statutory requirements contained in section 32 of the Act. [11] In relation to the claim for cover for sexual dysfunction, it is the principal submission of Mr Tui that the medical condition of sexual dysfunction is not one which in this case involves a physical injury, and he refers to the advice of Dr Moughan to that effect. Counsel also submits that there is no evidence of a causal nexus. The appellant has not identified any physical injury but has simply asserted a state of affairs whereby certain bodily functions are not functioning. [12] It is submitted by Mr Cox that Dr Croxson's report identifies the appellant's loss of libido as being caused by the corticosteroid treatment, and he simply refers to it as a treatment injury, and that it complies with the eligibility requirements for cover under section 32. [13] On the clear facts of this medical condition, I find that it does not involve a state of affairs which could be considered to be a physical injury suffered as a consequence of treatment. As such, it does not meet the statutory requirements of section 32 of the Act, and the respondent was therefore correct to decline to grant cover to the appellant for that medical condition. [14] Referring now to the claim in relation to Carpal Tunnel Syndrome, I can firstly acknowledge that such a medical condition does constitute a physical injury and is indeed a condition which has often come before the Courts. [15] In this case, Mr Cox has submitted that there is evidence that the appellant has suffered the physical condition of Carpal Tunnel Syndrome by reason of him being identified in August 2005 with stiffness in his wrists. That short statement from Dr Stuart was not amplified in any way by a diagnosis of Carpal Tunnel Syndrome, and as I read Counsel's submissions, it is simply his assertion that stiffness of the wrists is consistent with the medical condition of Carpal Tunnel Syndrome [16] Mr Tui, in his submissions, contended that there was no evidence establishing that the appellant did have Carpal Tunnel Syndrome, and secondly, even if that had been established, there was no evidence that the alleged mechanism for the onset of Carpal Tunnel Syndrome was due to the steroid ingestion. 10 [17] The Court was referred to the advice of Dr Harrison, a Rheumatologist, who identified that there was no documented evidence that the appellant has or had Carpal Tunnel Syndrome, and certainly Counsel for the Appellant was not able to identify any such specific diagnosis. [18] In those circumstances, therefore, I find that there can be no cover for a claimed treatment injury which has not been positively diagnosed, which I find is the factual situation in the present case. For these reasons, therefore, the respondent was correct to decline cover for Carpal Tunnel Syndrome. [19] Referring now to the claimed injury of Abdominal Hernia, again I find that the evidence of the existence of this condition is severely lacking. There is no dispute that the appellant did have the physical injury of umbilical hernia, but this was treated prior to any claim for cover being lodged, and the surgical treatment cured that condition and Counsel for the Appellant was clear in his submission that the cover being sought was not in respect of that hernia but rather a condition which he described as Abdominal Hernia, which he asserted arose in the latter part of 2005 and which was severe truncal obesity as a consequence of chronic steroid intake. [20] The only evidence asserted on behalf of the appellant, was a brief statement made in the claim for cover from Dr Bulmer in December 2008, when he asserted that one of the effects of the steroid ingestion was an abdominal hernia (caused by the obese abdomen) [21] No other evidence has been forthcoming of the fact of the appellant having an abdominal hernia. In fact Counsel for the Appellant suggested that the correct terminology for the condition in issue should be diastisis recti which seems to relate to the separation of the bone from the shaft of the large intestine, said to have been caused by the appellant's obese abdomen. [22] There is no evidence that the appellant had this medical condition in 2005 at the time he had the umbilical hernia treated nor since, and it seems that the assertion now made is merely that the appellant suffered severe truncal obesity as a consequence of the chronic steroid intake. [23] Again, I find that evidence of a physical injury has not been established from a medical perspective and whilst it is noted that Counsel for the Appellant has referred to this condition of diastisis recti, that has not been diagnosed by any medical specialist, and just as importantly, there is no evidence that any such condition has been caused by the steroid intake which the appellant ingested until January 2005. For these 11 reasons, therefore, there is no basis for the granting of cover for the medical condition of abdominal hernia. [24] The next physical injury claimed is that of accelerated degenerative arthritis. In this particular case the very wording of the claimed injury suggests that the treatment in contention merely accelerated the degenerative conditions in the appellant's body. [25] In this case there is evidence that in 2005 there was no indication of any degenerative arthritis but that as a consequence of X-ray and MRI scans in 2008/2009 such conditions were identified in the appellant's knees. [26] It was the advice of Dr Stuart in September 2005 to the appellant's GP that the arthritis and degenerative changes which he identified in the AC joint were related to the appellant's gout. Mr Cox submitted that Dr Stuart is incorrect in this assessment and that the more likely cause of the appellant's accelerated degenerative osteoarthritis is a combination of factors related directly to the steroid induced atrophy of the quadriceps femoris muscles. [27] Dr Harrison, Rheumatologist, was asked to consider the question of development or acceleration of osteoarthritis consequent upon the corticosteroid ingestion, and he did note that if the claimant's obesity could be substantially attributable to the use of corticosteroids, then a causal link could be considered, but he stated that unless that link could be established it would not be possible to ascribe the onset or rapid progression of knee osteoarthritis to being a treatment injury, but rather that it is more likely that the appellant was suffering from inflammatory osteoarthritis, that is, gout. The factor of gout was also considered by Dr Stuart and when he stated as follows: Over the course of his illness with gout he has suffered significant damage to joints and this is particularly evidence in the recent x-rays of his right foot. Degenerative change has occurred in his knees which relates to a number of factors including his weight and his gout. Furthermore the adrenal suppression he suffered resulted in suppression of testosterone levels and had a negative impact on bone density. [28] From the foregoing I find that unless it can be established that the appellant's obesity has resulted from and caused by the corticosteroid treatment he took until January 2005, then there can be no causative link to the onset of degeneration and therefore I now turn to consider the final injury sought to be covered, namely obesity. [29] From a factual perspective, I find that the evidence is overwhelming that the appellant had been identified and diagnosed with obesity well prior to him commencing to take the Herbs Health Multistress capsules containing the steroid Betamethasone. There is evidence from a number of medical specialists prior to September 2002 who 12 identify the appellant as being obese and their respective assessments are backed up by the weight that the appellant was then demonstrating, and that this assessment has been made despite the fact of the appellant's Samoan heritage. [30] In view of the fact that the appellant had demonstrated significant obesity well prior to commencing steroid ingestion, the fact that such medical condition continued to exist during the period of the steroid ingestion merely at most identifies that such steroid ingestion may have aggravated a pre-existing condition. [31] Counsel for the Appellant submits that the excess body mass index identified as being elevated prior to the commencement of steroid intake, does not apply to this appellant because the BMI (Body Mass Index) is based on European data, and therefore not a proper indicator for Polynesian people. In that regard Counsel referred to the comment from Dr Fris where he identified a bmi of 41.6 but a relatively low fat percentage and fat mass, which he said would be in keeping with his Samoan heritage. Nevertheless, the plain fact is that even then Dr Fris identified the appellant as being morbidly obese. [32] However, even if it were to be accepted that the treatment from the steroid dosage had caused his obesity, that is not the end of the matter, as of course it is necessary that the medical condition for which cover is sought is that of a personal injury, that is, a physical injury. [33] Having regard to the accepted meaning of physical injury, that is a condition causing actual bodily harm or damage, I find that the mere fact that a particular substance causes the onset of morbid obesity does not of itself constitute a physical injury. [34] When I consider both the factual circumstances of pre-existing obesity and of the clear factual situation that the mere fact of obesity does not constitute a physical injury, I find that it is quite clear that there can be no entitlement to cover under the Act for such a physical condition. [35] Having found as I have of the fact of the appellant having pre-existing obesity, and that such obesity was not caused by the ingestion of corticosteroid, and at most only aggravated or prolonged same, then it also follows that there is no causative link from the Corticosteroid intake to the appellant's arthritis. [36] Returning therefore to the issue of cover for accelerated degenerative arthritis, I find that it has not been established as having been caused by the intake of 13 corticosteroids, but rather by the appellant's virulent gout. Cover therefore cannot be had [37] For the foregoing reasons, I find that the respondent was correct to decline to grant cover for the five medical conditions for which cover was sought. This appeal is dismissed. oh DATED this \ 1 day of September 2011 M J Beattie District Court Judge