Hona v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA [2015] NZACC 272 ACR 394/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN HIRAINA HONA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 August 2015 with final reply submissions filed 3 September 2015 Appearances: The appellant in person F Becroft for respondent Judgment: 8 September 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This case involves a claim for cover for mental injury which was declined on 14 November 2011 and upheld by a reviewer on 28 May 2012. [2] The mental injury claim follows a fracture of the left tibia and fibula on 14 February 2001. [3] By way of background, a lump sum independence allowance process was carried out between 2008 and 2011. The end result of that was that the final whole person impairment rating of 7 percent was less than 10 percent. [4] The independence allowance review was dismissed by consent. Clearly it was based on the practical ramifications of the injury on capacity. [5] As part of that process the advocate acting for the appellant obtained a psychiatric report from Dr Newburn, a neuropsychiatrist, who diagnosed pain disorder associated with both psychological factors and general medical condition. He opined that cover for mental injury (chronic pain) should be considered. [6] The respondent followed that up by undertaking a psychiatric assessment with respect to the mental injury aspect and engaged Dr Vickers, who provided a psychiatric assessment on 27 September 201 1 and opined there was no mental injury. [7] In the lead up to the review of the mental injury claim, further psychological reports were obtained. Reports from Dr Newburn, a neuropsychiatrist in support of the appellant's claim were received , and from Dr Vickers, psychiatrist supporting the respondent's view. One further piece of relevant evidence is from a psychologist Dr Fernando in a report of 7 July 2014 for the purposes of this appeal, that was not available to the reviewer. [8] The central issue for determination, both at the review, and on this appeal involves analysis of conflicting medical opinions as between Dr Vickers and Dr Fernando on the one hand and Dr Newburn on the other [9] More specifically, whether on weighing up the conflicting evidence, it has been established as more likely than not, that the ongoing pain symptoms experienced by the appellant amount to a "mental injury" as defined in s 27 of the Accident Compensation Corporation Act ("the Act") namely a clinically significant behavioural cognitive or psychological dysfunction and, if that exists, whether there is a causal link with the physical injury. [10] At the conclusion of submissions before me, I gave the appellant the opportunity to gather her thoughts in respect of the whole matter including in particular the written submissions of the respondent because she indicated that she had not seen them before and understandably needed time to consider them. [11] Her submission by email dated 3 September, expands upon matters that she alluded to before me namely as she puts it: Circumstances have since changed 27 December 2014 where I have suffered a brain tumour, injury and stroke. It may be that I revisit the situations yet again with the new information at hand. [12] Clearly that raises issues outside the scope of the appeal, and in her email she adds nothing further to what she said before me relevant to this appeal , other than summarising the position in particular, the conclusions of the reviewer. She noted: The issues have been canvassed with N R Cottington and related doctors or specialist that brings this to an end [13] However also of assistance is written appeal submissions filed by the ACC Advocacy Support Trust who were then acting for the appellant, dated 7 March 2014. [14] I am not sure whether and to what extent that email comment from the appellant coupled with the information about her stroke indicates an abandonment of the appeal but will proceed on the assumption that I should give a reasoned decision including a determination as to why I conclude that the reviewer's decision should be upheld and the appeal be dismissed. Conflicting Medical Opinion on the Mental Injury Issue [15] In support of the appellant there are two reports from Dr Newburn. [16] The first on 16 November 2010 , which was carried out when the lump sum impairment issue was live, was a comprehensive review of the history of the appellant both before and after the accident. [17] Key opinions from that include: Axis III - chronic regional pain syndrome type 1. Axis IV - stressors are significant coping with the symptoms while attempting to maintain a fact of life. Loss of usual coping strategies in a particular sport and other activities. Axis V - current GAF 71-80. 18] That information was intended to be fed into the then, extant impairment review and a second report dated 25 November 2011 after referring back to the earlier report and noting both Dr Cheesman's impairment assessment report, and a first psychiatric report from Dr Vickers, picked up from his earlier report. Key extracts from that report include: Surprise that there was not more exploration of what he described as subtle neurological issues in the earlier medical assessments (including Dr Cheesman). That her experience of pain: was clearly influenced by psychological factors, I was able to elicit a history of an altered pain experience when she was under stress, pressured or when she felt tense. Thus, there were well defined psychological factors which influenced her pain experience. That as regards Dr Vickers' opinion that there were not psychological factors in the generation of the pain syndrome he would expect a diagnosis of somatoform disorder rather than a diagnosis of pain disorder associated with both psychological and general medical conditions. That he stood by his original report. [19] Then there are the two reports from Dr Vickers. [20] The first was on 29 September 2011 and, after a review of relevant family history, personal history and earlier assessments including in particular that of Dr Newburn and the whole person impairment report of Dr Cheesman opined as follows: I do not consider Ms Hona to have any DSM IV personality disorders. The appellant presented as confident, articulate and well educated with normal speech patterns and no evidence of being psychotic. Her DSM IV diagnostic criteria for Axis I, II, IV was nil. For Axis III was chronic pain from ankle injury and Axis V GAF N/A. He did not believe there was any mental injury or any need for psychiatric treatment. In his second report of 19 April 2012 which followed Dr Newburn's second report he confirmed that it did not change his views. I do not believe Ms Hona's pain problems are a consequence of her physical injuries which is an opinion that Dr Cheesman also expressed in his report dated 10 May 2011. I did not obtain a history of psychological factors such as depression, anxiety or stress that could have conceivably have been influencing her pain experience. She did not give a history of prior or current problem with her mental health and despite her injuries she continued to function at a high level in terms of furthering her education and career. Considering all of this I did not believe that an Axis I diagnosis could be justified. [21] For the purposes of this appeal a peer review by Dr Fernando National Manager, Psychology and Mental Health was obtained and after reading all the reports referred to above noted the following Both doctors Newburn and Vickers in their psychiatric reports provide a history of a psychologically resilient person who despite chronic pain is managing to lead a productive life. That Ms Hona herself had said that she had never been depressed saying she never had time to be and that: this epitomises Ms Hona's attitude that she perseveres as best she can despite experiencing chronic pain. She denies any cognitive problems which has indicated by the fact that she was studying for a Masters degree at the time of her psychiatric assessments. When asked a question whether the pain had a psychological or physical basis he said: Trying to separate pain into a physical or psychological basis is a bit of an artificial distinction. There is a clear physical basis for Ms Hona's pain. In summary there are medical reasons why Ms Hona has chronic pain and psychological factors (i.e. beliefs behaviours and emotions) have had a facilitatory effect on Ms Hona's management of her chronic pain condition. That he was critical of the process of Dr Newburn in concluding in his DSM-IV-TR diagnosis stating: Criterion B: The pain causes significant distress or impairment in social, occupational, or other important areas of function" and criterion C "psychological factors are judged to play a significant role in the onset, severity, exacerbation and maintenance of the pain". I do not consider Ms Hona meets the criteria for clinically significant behavioural, cognitive or psychological dysfunction, in fact Ms Hona appears to be psychologically robust in that she has managed to cope effectively with her pain and has maintained an active and productive lifestyle. She is an example of someone who has coped optimally with chronic pain syndrome. Analysis and Discussion 22] I agree with the submission for the respondent that so far as the combination of Dr Newburn's reports is concerned there is not an adequate differentiation between the effects of chronic regional pain syndrome and chronic pain as a mental injury and that many of the features he relies on to make his diagnosis including neurological and sensory change are features of chronic regional pain syndrome rather than chronic pain as a mental injury. [23] Also that the reports fail to address the context of established osteoarthritis. [24] Also , the conclusion that the appellant must have an Axis I diagnosis because she presents with a pain disorder associated with a general medical condition and psychological factors, does not lead to a conclusion that the psychological factor relied on, namely increased pain during times of stress amounts to a clinically significant behavioural cognitive or psychological dysfunction. [25] I also agree that Dr Newburn's reports y raise more questions than answers and there is no real foundation to any conclusion of a mental injury. Instead there are quite plausible explanations for the ongoing symptoms. [26] Set against the opinions of Dr Vickers and the peer review conclusions of Dr Fernando I am satisfied with the evidence, considered as a whole, that the most likely explanation for the ongoing symptoms, at least at the time of the relevant psychiatric assessments which is the issue in this case, is that while there is pain from the physical injury it does not amount to mental injury . [27] Accordingly my conclusion is that the reviewer's decision was correct and the threshold proof of mental injury with causal link has not been established. [28] Accordingly the appeal is dismissed. There is no issue as to costs. .. . . Judge A N Maclean District Court Judge ACR 394-12-Honataw)